BREAKING: PA Court Issues Injunction to Stop Onset of Portions of Act 13
Seven municipalities and the Delaware Riverkeeper Network were in Commonwealth Court April 11 to ask Senior Judge Keith Quigley to issue an order clarifying that Act 13 did not immediately dissolve the effect of existing municipal ordinances regarding gas drilling.
The Court issued a preliminary injunction against a portion of Act 13. The Court’s order ensures that zoning ordinances dealing with oil and gas operations remain in effect and are not immediately pre-empted by Act 13 on April 14, 2012. This finding was necessary due to arguments by the industry as to the status of zoning ordinances on Act 13’s effective date.
The order today also provides municipalities with an additional 120 days to consider their existing ordinances based on Act 13. To be clear, the Court did not enjoin the entire Act. The plaintiffs in the meantime will argue the larger case before the Court as to the unconstitutionality of the Act. A Hearing has been set in Commonwealth Court for Tuesday, April 17, on a request by gas industry representatives to intervene in the lawsuit.
“Senior Judge Quigley’s decision ensuring municipalities and communities will not be exposed to an onset of drilling before they have a sufficient chance to challenge or comply with Act 13 is an important first success on the road to having this law declared unconstitutional and therefore invalid. With Act 13 Governor Corbett and the Pennsylvania State legislature illegally took from municipalities the right to ensure the health, safety, and values of their communities and instead lays their citizens, natural and historic resources, schools, kids, and other community assets at the feet of the Goliath gas industry to be stepped on and stomped on at the industry’s will,” said Maya van Rossum, the Delaware Riverkeeper and co-plaintiff in the case.
Jordan Yeager, Esq., representing Nockamixon Township and Delaware Riverkeeper Network, said, “This is a great victory that preserves local democracy and local zoning while we continue to challenge the constitutionality of Act 13.”
“By depriving municipal elected officials of their ability to use zoning and community decisionmaking to protect precious natural resources; schools, hospitals and homes from damaging industrial practices, and to ensure the rights of everyone are honored and protected, this law has undermined the very fabric of municipal and constitutional law in the Commonwealth. As a result, our water, air, kids and communities will be subjected to more pollution and degradation from gas development," adds van Rossum “that is why it is so vital that the law not be allowed to take affect until it can be overturned.”
“It’s critically important for municipalities and the public that Act 13’s takeover is held at bay while we present our case to the Court about why Act 13 is unconstitutional. It is a truly a fair outcome that municipalities are not forced by the gas industry to jump through Act 13’s hoops in the meantime and have been given an additional 120 days to address the law’s impacts,” said Tracy Carluccio, deputy director of Delaware Riverkeeper Network.
As stated in the Petition: “By attempting to preempt and supersede local regulation of oil and gas operations, the Pennsylvania General Assembly, through Act 13, has assumed the power to zone for oil and gas operations, which is manifested through the promulgation of a uniform set of land-use regulations governing oil and gas operations throughout the Commonwealth. By crafting a single set of statewide zoning rules applicable to oil and gas drilling throughout the Commonwealth, the Pennsylvania General Assembly provided much sought-after predictability for the oil and gas development industry. However, it did so at the expense of the predictability afforded to Petitioners and the citizens of Pennsylvania whose health, safety and welfare, community development objectives, zoning districts and concerns regarding property values were pushed aside to elevate the interests of out-of-state oil and gas companies and the owners of hydrocarbons underlying each property, who are frequently not the surface owners.” (Petition, page 4)
Act 13, also known as HB1950, was signed into law by Governor Corbett on Feb. 14. Act 13 amends the Pennsylvania Oil and Gas Act, preempting municipal zoning of oil and gas development. It also establishes an impact fee on natural gas. The municipalities and Delaware Riverkeeper Network filed suit on March 29 challenging the new law on the grounds it violates the Pennsylvania and U.S. Constitutions and endangers public health, natural resources, communities and the environment. Today’s court appearance and successful ruling for the municipalities and Delaware Riverkeeper Network was but an early step in the legal challenge to the law.
Read the legal challenge here:
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By D. André Green II
One of nature's epic events is underway: Monarch butterflies' fall migration. Departing from all across the United States and Canada, the butterflies travel up to 2,500 miles to cluster at the same locations in Mexico or along the Pacific Coast where their great-grandparents spent the previous winter.
Millions of People Care About Monarchs<p>I will never forget the sights and sounds the first time I visited monarchs' overwintering sites in Mexico. Our guide pointed in the distance to what looked like hanging branches covered with dead leaves. But then I saw the leaves flash orange every so often, revealing what were actually thousands of tightly packed butterflies. The monarchs made their most striking sounds in the Sun, when they burst from the trees in massive fluttering plumes or landed on the ground in the tussle of mating.</p><p>Decades of educational outreach by teachers, researchers and hobbyists has cultivated a generation of monarch admirers who want to help preserve this phenomenon. This global network has helped restore not only monarchs' summer breeding habitat by planting milkweed, but also general pollinator habitat by planting nectaring flowers across North America.</p><p>Scientists have calculated that restoring the monarch population to a stable level of about 120 million butterflies will require <a href="https://doi.org/10.1111/icad.12198" target="_blank">planting 1.6 billion new milkweed stems</a>. And they need them fast. This is too large a target to achieve through grassroots efforts alone. A <a href="https://www.fws.gov/savethemonarch/CCAA.html" target="_blank" rel="noopener noreferrer">new plan</a>, announced in the spring of 2020, is designed to help fill the gap.</p>
Pros and Cons of Regulation<p>The top-down strategy for saving monarchs gained energy in 2014, when the U.S. Fish and Wildlife Service <a href="https://www.fws.gov/southeast/pdf/petition/monarch.pdf" target="_blank">proposed</a> listing them as threatened under the Endangered Species Act. A decision is expected in December 2020.</p><p>Listing a species as endangered or threatened <a href="https://www.fws.gov/endangered/esa-library/pdf/listing.pdf" target="_blank">triggers restrictions</a> on "taking" (hunting, collecting or killing), transporting or selling it, and on activities that negatively affect its habitat. Listing monarchs would impose restrictions on landowners in areas where monarchs are found, over vast swaths of land in the U.S.</p><p>In my opinion, this is not a reason to avoid a listing. However, a "threatened" listing might inadvertently threaten one of the best conservation tools that we have: public education.</p><p>It would severely restrict common practices, such as rearing monarchs in classrooms and back yards, as well as scientific research. Anyone who wants to take monarchs and milkweed for these purposes would have to apply for special permits. But these efforts have had a multigenerational educational impact, and they should be protected. Few public campaigns have been more successful at raising awareness of conservation issues.</p>
<span style="display:block;position:relative;padding-top:56.25%;" class="rm-shortcode" data-rm-shortcode-id="91165203d4ec0efc30e4632a00fdf57d"><iframe lazy-loadable="true" src="https://www.youtube.com/embed/KilPRvjbMrA?rel=0" width="100%" height="auto" frameborder="0" scrolling="no" style="position:absolute;top:0;left:0;width:100%;height:100%;"></iframe></span>
The Rescue Attempt<p>To preempt the need for this kind of regulation, the U.S. Fish and Wildlife Service approved a <a href="https://www.fws.gov/savethemonarch/pdfs/Monarch%20CCAA-CCA%20Public%20Comment%20Documents/Monarch-Nationwide_CCAA-CCA_Draft.pdf" target="_blank">Nationwide Candidate Conservation Agreement for Monarch Butterflies</a>. Under this plan, "rights-of-way" landowners – energy and transportation companies and private owners – commit to restoring and creating millions of acres of pollinator habitat that have been decimated by land development and herbicide use in the past half-century.</p><p>The agreement was spearheaded by the <a href="http://rightofway.erc.uic.edu/" target="_blank">Rights-of-Way Habitat Working Group</a>, a collaboration between the University of Illinois Chicago's <a href="https://erc.uic.edu/" target="_blank" rel="noopener noreferrer">Energy Resources Center</a>, the Fish and Wildlife Service and over 40 organizations from the energy and transportation sectors. These sectors control "rights-of-way" corridors such as lands near power lines, oil pipelines, railroad tracks and interstates, all valuable to monarch habitat restoration.</p><p>Under the plan, partners voluntarily agree to commit a percentage of their land to host protected monarch habitat. In exchange, general operations on their land that might directly harm monarchs or destroy milkweed will not be subject to the enhanced regulation of the Endangered Species Act – protection that would last for 25 years if monarchs are listed as threatened. The agreement is expected to create up to 2.3 million acres of new protected habitat, which ideally would avoid the need for a "threatened" listing.</p>
A Model for Collaboration<p>This agreement could be one of the few specific interventions that is big enough to allow researchers to quantify its impact on the size of the monarch population. Even if the agreement produces only 20% of its 2.3 million acre goal, this would still yield nearly half a million acres of new protected habitat. This would provide a powerful test of the role of declining breeding and nectaring habitat compared to other challenges to monarchs, such as climate change or pollution.</p><p>Scientists hope that data from this agreement will be made publicly available, like projects in the <a href="https://www.fws.gov/savethemonarch/MCD.html" target="_blank">Monarch Conservation Database</a>, which has tracked smaller on-the-ground conservation efforts since 2014. With this information we can continue to develop powerful new models with better accuracy for determining how different habitat factors, such as the number of milkweed stems or nectaring flowers on a landscape scale, affect the monarch population.</p><p>North America's monarch butterfly migration is one of the most awe-inspiring feats in the natural world. If this rescue plan succeeds, it could become a model for bridging different interests to achieve a common conservation goal.</p>
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