Groups File Amicus Briefs in Support of PA Communities’ Rights to Make Zoning Decisions on Fracking
A group of environmental and community planning organizations, as well as government entities, filed a series of amicus briefs with the Pennsylvania Supreme Court today in support of communities’ rights to making zoning decisions about fracking within their borders.
The groups—including the Natural Resources Defense Council (NRDC), Pennsylvania Chapter of the American Planning Association, Pennsylvania State Association of Boroughs, Pennsylvania State Association of Township Supervisors (PSATS), Pittsburgh City Council, Mountain Watershed Association and Earthjustice—filed in support of a Commonwealth Court decision that found Act 13 unconstitutional. This Pennsylvania law would have permitted fracking virtually everywhere in the Commonwealth without any regard to community character or the existing local economy.
The groups filing today join a broad spectrum of entities throughout the state that have also filed so-called “Friends of the Court” briefs like this, illustrating that opposition to the law is growing as the case is queued up to be heard by the Supreme Court on Oct. 17.
In their brief, the NRDC is representing the townships of Wilkins (Allegheny County), East Finley (Washington County) and Tinicum (Bucks County); the municipalities of Murrysville (Westmoreland County) and Monroeville (Allegheny County); the Borough of Bell Acres (Allegheny County), and the City of Bethlehem (Northampton and Lehigh Counties).
“A heavy industrial activity like fracking has an enormous impact on the character of a community, its economic prosperity, and the health and happiness of its residents,” said Dan Raichel, project attorney at NRDC. “It’s only commonsense that communities should have the right to say whether or how fracking takes place within their borders.”
The Pennsylvania Chapter of the American Planning Association filed an amicus brief based on their concerns related to the importance of municipal planning and zoning.
“The Pennsylvania Chapter of the American Planning Association is concerned about the precedent that Act 13 would set for future zoning activities by limiting local municipal control. We believe that municipalities are best suited to handle local land use planning by utilizing comprehensive plans and zoning ordinances without State preemption. In order to preserve a high quality of life for all Pennsylvania residents, it is critical that municipalities maintain their ability to plan land use in accordance with a municipality’s individual needs and constraints,” said Kyle Guie, Pennsylvania Chapter of the American Planning Association legislative committee chair.
Pittsburgh City Council filed a brief based on the agreement of the nine-member council that it was vital for the city to stand up for their residents and landowners against a state takeover.
The PSATS, representing 1,455 townships in the commonwealth, also filed a brief in support of the Commonwealth Court’s decision against Act 13. According to the PSATS website, the townships they represent “comprise 95 percent of Pennsylvania’s land area and are home to more than 5.5 million citizens—44 percent of the state’s population. Pennsylvania’s townships are very diverse, ranging from rural communities with fewer than 200 residents to suburban communities of more than 60,000 residents.”
Also filing in support is the Pennsylvania State Association of Boroughs, “a nonprofit/nonpartisan association operated by the boroughs of the Commonwealth to promote effective local government practices and initiatives,” according to their website.
Represented by Earthjustice, 20 nonprofit environmental organizations and citizens groups also filed as amici in support of the Commonwealth Court ruling that struck down Act 13’s takeover of municipal control of gas drilling and operations. The amicus brief shows that, contrary to the requirements of Pennsylvania’s Constitution, there is no substantial interest supporting Act 13, because local control of land use can be harmonized with state control of technical operations, as happens in most states throughout the country.
Mountain Watershed Association, a nonprofit organization centered in the Indian Creek Watershed in Westmoreland and Fayette Counties and the Youghiogheny River in southwestern Pennsylvania, filed an amicus brief in support of the ruling. “Clearly, our legislators are out of touch with their constituents, except those who are lobbyists and make significant political contributions. Through our Marcellus Citizens Stewardship Project we talk to people actually living in the gasfields, beside the compressor stations, the frack ponds and the concentrators. Some of our members are experiencing degradation to their quality of life and their health. People in these impacted communities could be protected through the adoption of municipal ordinances designed to protect their health and welfare. Our legislators should be working for these communities and not the industry,” said Beverly Braverman, executive director, Mountain Watershed Association.
The original plaintiffs in the legal challenge—a group of seven municipalities, the Delaware Riverkeeper Network and Dr. Mehernosh Khan—welcomed the filing of the briefs in support of the Commonwealth Court’s decision by so many different interested parties, expressing that the injustice of Act 13 is more evident than ever.
Nancy Alessi, Nockamixon Township Supervisor, stated, "In Nockamixon people are enraged that the state passed this legislation taking away our zoning, with no notice or consideration of our local conditions, and with our local legislators not even understanding what they voted for."
“We are deeply moved by the outpouring of unanimous support from municipalities and residents across PA who want their local governments to continue their job of protecting the health, safety and welfare of residents. We have also been made aware of a growing distrust of the current DEP, PUC and the bureaucracy in Harrisburg,” stated Deron Gabriel, president, South Fayette Twp. Board of Commissioners.
“The filing of so many briefs in support of the Court’s ruling that struck down Act 13 is heartening and makes it very clear that the unpopularity of this oppressive law is expanding as people realize how unfair and untenable it is,” said Maya van Rossum, the Delaware Riverkeeper.
Visit EcoWatch’s FRACKING page for more related news on this topic.
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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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