The Pennsylvania Supreme Court issued an opinion yesterday in the closely-watched case of Robinson Township v. Commonwealth of Pennsylvania, No. 63 MAP 2012.
The case was a challenge filed by several Pennsylvania municipalities against the state legislature’s adoption of Act 13. Act 13 sought to eliminate zoning authority from municipalities over oil and gas extraction.
Act 13 was passed in 2012 to remove any local barriers to the expansion of drilling and fracking across the state. Provisions of Act 13 made certain oil and gas extraction activities a “use by right” in any part of any municipality, thus eliminating the ability of municipalities to use zoning and planning to control oil and gas drilling (and other activities) within their communities.
In 2012, Pennsylvania’s Commonwealth Court (Pennsylvania’s trial court for actions brought against the State of Pennsylvania), ruled in favor of the municipal plaintiffs. That court struck down certain portions of Act 13, ruling that they were a constitutional violation of the property rights of landowners who would be affected by the act’s elimination of municipal zoning authority.
The decision was then appealed by several parties to the Pennsylvania Supreme Court.
In yesterday's decision, the Pennsylvania Supreme Court also ruled in favor of the plaintiffs. However, in a departure from the lower court, the state Supreme Court rooted its decision not in the property rights of landowners, but on Pennsylvania’s Environmental Rights Amendment.
The amendment, adopted in 1971 by the voters of the state as part of the State Constitution’s Declaration of Rights, declares the right of citizens to “clean air and pure water” and to the “preservation of natural, scenic, historic and esthetic values of the environment.” The amendment also declares that the state and its municipalities must act as trustees to protect the rights of Pennsylvania citizens under the amendment.
The court ruled that Act 13’s elimination of zoning and land use planning authority—the primary method through which municipalities act as trustees—was unconstitutional. For, the court found, the state cannot interfere with the constitutional duty of municipal governments to carry out the duties imposed by the Environmental Rights Amendment.
In essence, the Pennsylvania Supreme Court delivered a ruling which limits the power of the state to interfere with the duty of municipalities to act as a trustee of natural resources.
The court thus overturned several sections of Act 13, including the sections creating the power of the state to nullify municipal zoning provisions which ran afoul of the act’s requirement that oil and gas drilling could occur in any area of a municipality, regardless of how that area was zoned.
The court’s decision was a drastic departure from that of prior courts with respect to the Environmental Rights Amendment. Ever since the amendment’s overwhelming adoption by the people of the commonwealth, courts have generally disregarded it, holding that its sole purpose was to provide additional authority to state agencies to protect the natural environment.
“Today was a significant victory for municipalities seeking to regulate the placement of oil and gas wells and other structures on the surface of land,” said Thomas Linzey, the executive director of the Community Environmental Legal Defense Fund (CELDF).
“Further, today’s decision may not only affect Act 13 or oil and gas drilling," said Linzey. "For years, the state legislature has sought to eliminate local authority on extraction and other activities, including forestry and coal, which the court referenced in its decision.”
For many years, CELDF has represented municipal clients adopting local ordinances that ban corporate projects harmful to communities. As part of that work, CLEDF has fought to overturn another Pennsylvania law—known as ACRE (Agriculture, Communities and Rural Environment)—which forced corporate factory farms into communities regardless of local zoning and land use planning laws which sought to limit industrial agriculture.
Linzey stated, “The court’s decision calls into question the constitutionality of any state laws which nullify the authority of municipal zoning ordinances and land use plans. Today’s ruling gives new life to people’s environmental rights, and serves more importantly, in some ways, to shield our communities from a state legislature that has been privatized by certain industries.”
“This ruling, while welcome, does not stop fracking of Pennsylvania’s communities, nor does it recognize the right of the people of Pennsylvania to govern their own communities without state or corporate interference,” Linzey explained further. “Today’s decision does, however, for the first time open the door for future rulings that would add that law."
"However, there remain tremendous legal barriers in place which subordinate the authority of people, communities and nature to protect themselves from fracking and the wide range of activities that the state legislature has forced into our municipalities,” explained Linzey.
Visit EcoWatch’s FRACKING page for more related news on this topic.
Though made in large part of plastic, glass, ceramics, gold and copper, they also contain critical resources. The gallium used for LEDs and the camera flash, the tantalum in capacitors and indium that powers the display were all pulled from the ground — at a price for nature and people.
"Mining raw materials is always problematic, both with regard to human rights and ecology," said Melanie Müller, raw materials expert of the German think tank SWP. "Their production process is pretty toxic."
The gallium and indium in many phones comes from China or South Korea, the tantalum from the Democratic Republic of Congo or Rwanda. All in, such materials comprise less than ten grams of a phone's weight. But these grams finance an international mining industry that causes radioactive earth dumps, poisoned groundwater and Indigenous population displacement.
Environmental Damage: 'Nature Has Been Overexploited'
The problem is that modern technologies don't work without what are known as critical raw materials. Collectively, solar panels, drones, 3D printers and smartphone contain as many as 30 of these different elements sourced from around the globe. A prime example is lithium from Chile, which is essential in the manufacture of batteries for electric vehicles.
"No one, not even within the industry, would deny that mining lithium causes enormous environmental damage," Müller explained, in reference to the artificial lakes companies create when flushing the metal out of underground brine reservoirs. "The process uses vast amounts of water, so you end up with these huge flooded areas where the lithium settles."
This means of extraction results in the destruction and contamination of the natural water system. Unique plants and animals lose access to groundwater and watering holes. There have also been reports of freshwater becoming salinated due to extensive acidic waste water during lithium mining.
But lithium is not the only raw material that causes damage. Securing just one ton of rare earth elements produces 2,000 tons of toxic waste, and has devastated large regions of China, said Günther Hilpert, head of the Asia Research Division of the German think tank SWP.
He says companies there have adopted a process of spraying acid over the mining areas in order to separate the rare earths from other ores, and that mined areas are often abandoned after excavation.
"They are no longer viable for agricultural use," Hilpert said. "Nature has been overexploited."
China is not the only country with low environmental mining standards and poor resource governance. In Madagascar, for example, a thriving illegal gem and metal mining sector has been linked to rainforest depletion and destruction of natural lemur habitats.
States like Madagascar, Rwanda and the DRC score poorly on the Environmental Performance Index that ranks 180 countries for their effort on factors including conservation, air quality, waste management and emissions. Environmentalists are therefore particularly concerned that these countries are mining highly toxic materials like beryllium, tantalum and cobalt.
But it is not only nature that suffers from the extraction of high-demand critical raw materials.
"It is a dirty, toxic, partly radioactive industry," Hilpert said. "China, for example, has never really cared about human rights when it comes to achieving production targets."
Dirty, Toxic, Radioactive: Working in the Mining Sector
One of the most extreme examples is Baotou, a Chinese city in Inner Mongolia, where rare earth mining poisoned surrounding farms and nearby villages, causing thousands of people to leave the area.
In 2012, The Guardian described a toxic lake created in conjunction with rare earth mining as "a murky expanse of water, in which no fish or algae can survive. The shore is coated with a black crust, so thick you can walk on it. Into this huge, 10 sq km tailings pond nearby factories discharge water loaded with chemicals used to process the 17 most sought after minerals in the world."
Local residents reported health issues including aching legs, diabetes, osteoporosis and chest problems, The Guardian wrote.
South Africa has also been held up for turning a blind eye to the health impacts of mining.
"The platinum sector in South Africa has been criticized for performing very poorly on human rights — even within the raw materials sector," Müller said.
In 2012, security forces killed 34 miners who had been protesting poor working conditions and low wages at a mine owned by the British company Lonmin. What became known as the "Marikana massacre" triggered several spontaneous strikes across the country's mining sector.
Müller says miners can still face exposure to acid drainage — a frequent byproduct of platinum mining — that can cause chemical burns and severe lung damage. Though this can be prevented by a careful waste system.
Some progress was made in 2016 when the South African government announced plans to make mining companies pay $800 million (€679 million) for recycling acid mine water. But they didn't all comply. In 2020, activists sued Australian-owned mining company Mintails and the government to cover the cost of environmental cleanup.
Another massive issue around mining is water consumption. Since the extraction of critical raw materials is very water intensive, drought prone countries such as South Africa, have witnessed an increase in conflicts over supply.
For years, industry, government and the South African public debated – without a clear agreement – whether companies should get privileged access to water and how much the population may suffer from shortages.
Mining in Brazil: Replacing Nature, People, Land Rights
Beyond the direct health and environmental impact of mining toxic substances, quarrying critical raw materials destroys livelihoods, as developments in Brazil demonstrate.
"Brazil is the major worldwide niobium producer and reserves in [the state of] Minas Gerais would last more than 200 years [at the current rate of demand]," said Juliana Siqueira-Gay, environmental engineer and Ph.D. student at the University of São Paulo.
While the overall number of niobium mining requests is stagnating, the share of claims for Indigenous land has skyrocketed from 3 to 36 percent within one year. If granted, 23 percent of the Amazon forest and the homeland of 222 Indigenous groups could fall victim to deforestation in the name of mining, a study by Siqueira-Gay finds.
In early 2020, Brazilian President Jair Bolsonaro signed a bill which would allow corporations to develop areas populated by Indigenous communities in the future. The law has not yet entered into force, but "this policy could have long-lasting negative effects on Brazil's socio-biodiversity," said Siqueira-Gay.
One example are the niobium reserves in Seis Lagos, in Brazil's northeast, which could be quarried to build electrolytic capacitors for smartphones.
"They overlap the Balaio Indigenous land and it would cause major impacts in Indigenous communities by clearing forests responsible for providing food, raw materials and regulating the local climate," Siqueira-Gay explained.
She says scientific good practice guidelines offer a blueprint for sustainable mining that adheres to human rights and protects forests. Quarries in South America — and especially Brazil — funded by multilaterial banks like the International Finance Corporation of the World Bank Group have to follow these guidelines, Siqueira-Gay said.
They force companies to develop sustainable water supply, minimize acid exposure and re-vegetate mined surfaces. "First, negative impacts must be avoided, then minimized and at last compensated — not the other way around."
Reposted with permission from DW.