Monday, August 8, 2011
So today comes some fairly unsurprising news: Mayor Luke Ravenstahl has informed council that he will not approve a measure to put a ban on natural-gas drilling before voters this November. And he has timed his move in such a way as to make it impossible for council to reverse the action.
Had it passed, the referendum would have amended the city's home-rule charter to bar the drilling of natural gas within city limits; it also would have stripped certain legal rights from companies seeking to engage in it. Ravenstahl's letter cites "several reasons" to withhold his signature from the bill. "Chief among them," he writes, are his concerns about "the message we are sending when we are essentially blocking an industry from investing in our City." But Ravenstahl also notes legal concerns about the drilling ban. Finally, he notes "grave concern" that council had to rush to pass the bill in time for it to appear on the ballot.
Ravenstahl asserts that "a matter of this importance" should first be discussed in "a community-wide dialogue replete with post-agendas, public hearings and the like."
"If this bill's author really believes this is an important issue," Ravenstahl asks, "then why not introduce it weeks if not months ago?"
You know what? That's a good question.
Of course, it may also be a trifle disingenous. One could argue that a "community-wide dialogue" would ensue after the measure was put on the ballot.
But for a variety of reasons, I think Ravenstahl just did environmentalists a favor. Even if they'd never admit it.
Let's be clear about a couple things here.
First, as I said last week, council only has itself to blame for being in this position. City councilor Doug Shields waited to advance this measure until just before council went on its summer recess. That left the bill's fate in Ravenstahl's hands -- thanks to a state deadline concerning the filing of ballot questions, Ravenstahl could run out the clock with fear of a veto. He's used the clock before on other matters, and I don't think anyone is surprised he did so on this one.
Second, while the city's law department is perfectly capable of producing politically loaded opinions, this bill really is problematic. And everyone involved -- including its supporters -- knows it.
As noted here two weeks ago, there are provisions of this bill that appear unconstitutional on their face.
Consider this language, for example:
Corporations engaged in the extraction of natural gas shall not possess the authority or power to enforce State or federal preemptive law against the people of the City of Pittsburgh, or to challenge or overturn municipal ordinances or Charter provisions adopted by the City Council of Pittsburgh
What that means, essentially, is that state and federal law would simply not apply to gas-drillers within city limits. One of the rights those companies would lose, moreover, is the ability to object to having lost them.
It's hard to imagine how that sort of language could survive 5 minutes of judicial scrutiny. (Which it will get; it's called "due process," and judges tend to be protective of it. Even convicted axe murderers are allowed an appeal process.)
By contrast, the legal case in favor of the bill is somewhat more nebulous.
Last week, I had a somewhat dizzying phone conversation with Ben Price, of the Community Environmental Legal Defense Fund. The CELDF has been championing the bill -- more than that, CELDF boasts of having drafted the measure, and several others similar to it. (You might almost say they're the American Legislative Exchange Council of the anti-drilling movement. But I wouldn't advise it.)
Price is a passionate guy, whose organization has a noble goal: trying to level the playing field when it comes to the exercise of corporate power. Part of what CELDF objects to, in fact, is that corporations actually do have due process rights, thanks to a well-established-if-batshit-crazy legal tradition of recognizing them as "persons" under the Constitution.
In any case, Price says, the real question isn't whether the city ordinance conforms with state law. Rather, it's "Can it be legitimate for the state to preempt the municipalities?" Especially when questions of community health are at stake.
Price does acknowledge, to be sure, that there are ample court precedents for giving corporations the rights Shields wants to deny. But, he notes, "there are a lot of bad precedents," like pro-slavery Supreme Court rulings, which all right-thinking people are embarrassed by today.
It might be well to note that the CELDF has a less-than-perfect record of counseling municipalities that pass such bans. But for supporters, the legality of this measure is somewhat beside the point. To use a metaphor I've heard invoked by proponents, 1960s sit-ins weren't legal either. That was why they were held in the first place -- to symbolize and dramatize an injustice.
I think it's safe to say that Price is more interested in overturning legal precedents than he is in conforming to them. Lawyers for the city have the opposite set of priorities, obviously, which explains their misgivings.
But here's the real point: As Price himself puts it, passing a ban isn't "just a legal strategy. It's really an organizing strategy. People think they have a fracking problem, but they really have a democracy problem ... We're returning to first principles. And the very first principle that is being ignored here is the consent of the governed."
But that just brings us to why Ravenstahl's action could actually be a good thing for environmentalists. First off, if the goal here is to demonstrate that our political system ignores the voice of the people ... then Luke Ravenstahl just provided another bit of evidence.
What's more, environmentalists have just been spared the need to prove that "the governed" actually support their position. Which might be a good thing, because I'm not sure they do.
Let's be honest: If you're a gas driller, the stakes involved in this referendum would have been small. If it passes, so what? The language that would be added to the home-rule charter is almost identitical to a ban council passed last year. And if a driller wanted to have a court overturn one such ban, getting a redundant second measure tossed out shouldn't be much harder. The only cost is some additional PR.
Conversely, drilling opponents would have everything to lose if the referendum failed. If the public rejected the ban, that would be the end of Price's argument about how drilling interests are ignoring the "consent of the governed." That sin would suddenly be laid at the feet of environmentalists instead.
As for the current ban on the books? It would lose much of its moral force ... which, given the legal problems presented by the verbage, may be the only force it has.
And make no mistake: It's quite possible that ban would have lost. Just two days after council voted to put the referendum on the ballot, after all, Quinnipiac University released a poll suggesting that drilling is not, in fact, universally unpopular.
In the poll, voters were asked this question:
Some people say there should be drilling for natural gas in the Marcellus Shale because of the economic benefits. Others say there should not be drilling for natural gas in the Marcellus Shale because of the environmental impact. Which comes closer to your point of view?
Statewide, 59 percent of voters said they favored drilling; only one-third identified themselves with the anti-drilling view. The percentage of voters in Allegheny County was exactly the same.
Now polling questions can distort people's answers, and Pittsburgh voters may well be more suspicious of drillers than the average county (or state) resident. Still, these are nearly two-to-one margins, and the anti-drilling folks don't have a lot of money, or a lot of time. I'm not sure they could have turned those numbers around.
By way of example: I'm reliably informed that drilling opponents had discussed holding a rally this afternoon in support of the referendum. The idea was to demonstrate at the City County Building, in hopes of pressuring Ravenstahl into expediting his decision, in time for council to reverse it if need be. But the rally was called off, because organizers couldn't draw enough people to make a strong showing of support.
I mean no disrespect to organizers here. These folks are volunteers who have lives of their own, trying to take on an industry that, while very powerful, seems to have no imminent plans of actually drilling.
Still, that just points up the problem here. If Ravenstahl had put this measure on the ballot, a dedicated core of a couple dozen activists would have had just 13 weeks to make their case. And lest we forget -- the NFL season is back on!
Ravenstahl decided the other way. In doing so, he's actually provided further proof of Price's thesis -- that the people's voice has been quashed. Environmentalists can go on complaining about that fact -- without having to worry just yet about whether that voice, once heard, will truly echo their position.
In the meantime, what does Ravenstahl's obstruction actually cost the movement? Not much.
The existing law is still on the books, and drillers have not bothered to challenge it. Without an immediate threat, there is nothing to stop environmentalists from trying again. They can target an election next year -- and they can do things differently next time.
Shields himself will no longer be on council in 2012. It's not at all clear that a new council would be as supportive of a ban -- Shields is being replaced by Corey O'Connor, whose objections to drilling are less full-throated.
But organizers might be wise to bypass council entirely.
A referendum can also be put on the ballot through a petition campaign, in which activists take their case directly to voters. And there's ample precedent for doing so: In 1997, a signature-gathering campaign put the city's police review board was on the ballot after city officials rejected the reform. A similar effort was later undertaken on behalf of a controversial minority hiring program, Pittsburgh Works. During the debate over the Shields referendum, in fact, some councilors -- among them Daniel Lavelle -- argued that a petition-gathering campaign was actually a more suitable approach anyway.
It won't be easy: Organizers will need to come up with thousands of signatures from residents before the measure even shows up on a ballot. But there's an upside to that as well: It gives organizers time and opportunity to engage one-on-one with voters about the issue. That's something they might not have if they were facing a November deadline.
In any case, the machinations that have been taking place in city hall have done nothing to diminish the environmental cause. Some aspects of the political battle have, however, shed some light about how city govnerment is working -- or not working -- these days. More on that in a future, hopefully less lengthy, post.
Tags: Slag Heap