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Thursday, July 28, 2011

Natural-gas referendum generates heat

Posted By on Thu, Jul 28, 2011 at 11:31 AM

City council took a preliminary vote in favor of placing a natural-gas-drilling ban on the November ballot. A final vote is due next week. But given the heat created by the debate this week, a ban on gas production might be superfluous ... even assuming it is legal. Which it may not be. 

The bill, proposed by outgoing councilor Doug Shields, would give voters a chance to approve a change to the city's Home Rule Charter. If city officials sign off on the legislation, and voters approve the ballot question, the charter will be amended to include a ban on natural-gas drilling in city limits. Council actually passed such a ban on its own last year. But this measure would incorporate a ban directly into the city's own constitution. And the new measure also features several stirring provisions asserting a "right to water," a "right to self-goverment," and other Jeffersonian nostrums.

Early on, though, the discussion has been somewhat less high-minded.

As first reported here on Monday (and later discussed further by the Post-Gazette), Shields has argued that drilling interests are applying "significant political pressure" to kill the measure. Shields revisited that allegation yesterday. During remarks that touched on everything from inalienable rights to fish that clean each other's teeth, he suggested that pro-drilling forces were "working feverishly behind the scenes" to stop the measure.

That drew a lengthy condemnation from Patrick Dowd, who voted against the measure and accused Shields of "launch[ing] a smear campaign. It's in the paper now: Anybody that votes against Mr. Shields' bill is a prostitute to the industry ... Councilman Shields might have a majority here, but he doesn’t have unanimity [so] he launches a smear campaign against anybody that would vote no ... I would ask my colleagues to turn away from that sort of ... demagoguery."

Shields' allegations of arm-twisting got little support even from those who were friendly to the bill. Natalia Rudiak acknowledged discussing the issue with Rich Fitzgerald, the Democratic nominee for county executive. But she characterized it as a mere exchange of views -- "done, end of story."

If anything, Rudiak almost sounded like she'd like to see a bit more lobbying: "I personally have never been contacted by a representative of the Marcellus Shale industry, ever." And the industry's failure to engage with local politicians, she charged, "sends the message that the industry .... feel that they're bigger than us. That they're more powerful than us, that they can ignore us. And I don’t appreciate that."

Of course, it may well be that the gas industry can ignore the measure. There's a very real chance that they could overturn it in the courts. 

Councilors yesterday had in hand a brief legal analysis of the bill from the city Law Department. While the department asked for more time to conduct a review, it goes at numerous provisions of Shields' bill. For openers, it refers to Pennsylvania state law's limitation on municipal powers. The key provision of that law asserts

a municipality shall not ... [e]nact or promulgate any ordinance or regulation with respect to ... the manufacture, processing, storage, distribution and sale of any foods, goods or services subject to any Commonwealth statutes and regulations unless the municipal ordinance or regulation is uniform in all respects with the Commonwealth statutes and regulations.

The Law Department analysis also notes that the state's Oil and Gas Act explicitly states that "all local ordinances and enactments purporting to regulate oil and gas well operations regulated by this act are hereby superseded." That language has been used to overturn local regulations that are far less sweeping than an outright ban.

At yesterday's meeting, Shields argued that no less a personage than Joe Scarnati, the Republican president pro tempore of the Senate, seems to envision communities saying "no" to drilling. In a May op-ed piece, Scarnati argued on behalf of establishing an "impact fee" for local communities that host drilling sites. "[C]ommunities that choose to ban drilling will not collect money from the impact fees," Scarnati wrote. To Shields, that suggests Scarnati agrees communities should be able to make that choice.

Shields also argued that while the state has jurisdiction over liquor laws, that doesn't preclude communities like Wilkinsburg from being "dry." I'm not sure that's a great analogy: State liquor law explicitly grants the possibility that communities may choose to remain "dry." Whereas the Oil and Gas Act seems to explicitly deny local governments the opportunity to say no.

In any case, there are other problems with Shields' bill. For example, it asserts:

Corporations in violation of the prohibition against natural gas extraction, or seeking to engage in natural gas extraction shall not ... be afforded the protections of the commerce or contracts clauses within the United States Constitution or corresponding sections of the Pennsylvania Constitution.

You can probably see the problem here, even if you don't work for the Law Department: The Shields ordinance appears to be revoking the state and US Constitution for industries that Pittsburgh doesn't like. And you can't even do that for strip clubs. Not surprisingly, the law department notes that other "[p]otential areas of concern relate to the Commerce Clause, Contracts Clause, Substantive & Procedural Due Process [clauses]."

During yesterday's council meeting, Dowd had some sport with a provision asserting that "[n]o permit, license, privilege, or charter issued by any State or federal agency ... to any person or any corporation ... which would violate the prohibitions of this Charter provision ... shall be deemed valid within the City of Pittsburgh." Dowd wondered whether truck drivers hauling frackwater would thus have their licenses suspended within city limits. How would police enforce such a measure, he wondered. 

Ricky Burgess, meanwhile, chose to have some fun at the expense of his council rivals. Burgess, who is perenially on the outs with Shields and the rest of council's majority, noted that he'd proposed two referenda in January which were both tabled. Councilors had argued that the initiative for those proposals could come from the voters, rather than from the councilors themselves.

"I am very humbled that they have been persuaded by me that this is something council should do," he said, remaining admirably straight-faced. 

But the preliminary vote went in Shields' favor 5-3 ... and Burgess himself abstained in yesterday's vote, saying he felt "conflicted." The law department opinion worried him, he said, but so did drilling's potential impact on community health.

"I do not think it’s appropriate for [drilling] to be in the city of Pittsburgh," he said. "I typically believe that people have the right to decide their own future."

For his part, Bill Peduto acknowledged that "The regulations that are in place at the state and federal level are skewed," and that the field is "not level." But "What do you do when you feel that way?" he asked. "You try what you can to put the field back" -- especially when the stakes for environmental and community health are so high.

Will a local referndum really change that balance of power? Probably not. Even some environmentalists I've spoken with privately admit that local drilling bans are unlikely to withstand court scrutiny. They tend to believe that the reason the existing council ban hasn't been challenged is that no drilling firms have any plans to come to Pittsburgh in the forseeable future. (Gas prices are quite low, and it's much easier and more cost-effective to drill in rural areas.) 

Still, supporters relish sending a strong message about the community's will. Some enjoy the prospect of a court battle, as a way of highlighting the issue and -- who knows? -- perhaps turning up something juicy in the discovery process.

But maybe the best reason to put this measure on the ballot is that the objections to it -- it violates state law, etc. -- are the same objections that apply to council's own ban. And all 9 council members voted in favor of that bill. Which raises the question: Once you've given yourself the opportunity to defy state law, how do you justify denying voters the same fun?

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