Exposed: Pennsylvania Act 13 Overturned by Commonwealth Court, Originally an ALEC Model Bill

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On July 26, the Pennsylvania Commonwealth Court** ruledย PA Act 13ย unconstitutional.*** The bill would have stripped away local zoning laws, eliminated the legal concept of aย Home Rule Charter, limited private property rights, and in the process, completely disempowered town, city, municipal and county governments, particularly when it comes to shale gas development.

The Court ruled that Act 13 โ€œโ€ฆviolates substantive due process because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications โ€“ irrational because it requires municipalities to allow all zones, drilling operations and impoundments, gas compressor stations, storage and use of explosives in all zoning districts, and applies industrial criteria to restrictions on height of structures, screening and fencing, lighting andย noise.โ€

Act 13 โ€“ pejoratively referred to as โ€œthe Nation’s Worst Corporate Giveawayโ€œย byย AlterNetย reporter Steven Rosenfeld โ€“ would haveย ended local democracy as we know itย inย Pennsylvania.

โ€œItโ€™s absolutely crushing of local self-government,โ€ Ben Price, project director for the Community Environmental Legal Defense Fund (CELDF), told Rosenfeld. โ€œItโ€™s a complete capitulation of the rights of the people and their right to self-government. They are handing it over to the industry to let them govern us. It is the corporate state. That is how we look atย it.โ€

Where could the idea for such a bill come from in the first place? Rosenfeld pointed to the oil and gas industry in hisย piece.

That’s half of the answer. Pennsylvania is the epicenter of the ongoing fracking boom in the United States, and by and large, is a state seeminglyย bought off by the oil and gas industry.

The other half of the question left unanswered, though, is who do oil and gas industry lobbyists feed anti-democratic, state-level legislationย to?

The answer, in a word: ALEC.

PA Act 13, Originally an ALEC Modelย Billย 

Theย American Legislative Exchange Council (ALEC)ย is in the midst of hosting itsย 39th Annual Meetingย this week in Salt Lake City, Utah. ALEC is appropriately described as an ideologically conservative, Republican Party-centric โ€œcorporate bill millโ€ by theย Center for Media and Democracy, the overseer of theย ALEC Exposedย project.ย 98 percent of ALEC‘s funding comes from corporations, according to CMD.

ALEC‘s meetings bring together corporate lobbyists and state legislators to schmooze, and then vote on what it calls โ€œmodel bills.โ€ Lobbyists have a โ€œvoice and a vote in shaping policy,โ€ CMD explains. They have de facto veto power over whether their prospective bills become โ€œmodelsโ€ that will be distributed to the offices of politicians in statehousesย nationwide.

A close examination suggests that an ALEC model bill is quite similar to the recently overturned Actย 13.ย 

It is likely modeled after and inspired by an ALEC bill titled, โ€œAn Act Granting the Authority of Rural Counties to Transition to Decentralized Land Use Regulation.โ€ This Act was passed by ALEC‘s Energy, Environment, and Agriculture Task Forceย at its Annual Meeting in August 2010 in San Diego, CA.ย 

The model bill opens by saying that โ€œโ€ฆthe planning and zoning authority granted to rural counties may encourage land use regulation which is overly centralized, intrusive and politicized.โ€ The model bill‘s central purpose is to โ€œgrant rural counties the legal authority to abandon their planning and zoning authority in order to transition to decentralized land useย regulationโ€ฆโ€

The key legal substance of the bill reads, โ€œThe local law shall require the county to repeal or modify any land use restriction stemming from the countyโ€™s exercise of its planning or zoning authority, which prohibits or conditionally restricts the peaceful or highest and best uses of privateย propertyโ€ฆโ€

In short, like Act 13, this ALEC model bill turns local democractic protections on their head. Act 13, to be fair, is a far meatier bill, runningย 174 pages in length. What likely happened: Pennsylvania legislators and the oil and gas industry lobbyists they serve took the key concepts found in ALEC‘s bill, ran with them, and made an even more extreme and specific piece of legislation to strip away Pennsylvania citizens’ย rights.

There were many shale gas industry lobbyists and those affiliated with like-minded think-tanks in the house for the Dec. 2010 San Diego Energy, Environment, and Agriculture Task Force Meeting where this prospective ALEC model bill became an official ALEC model bill. They included Daren Bakst of the John Locke Foundation (heavily funded by the Kochs), Russel Harding of the Mackinac Center for Public Policy (also heavily funded by the Koch Family Fortune), Kathleen Hartnett White of the Texas Public Policy Foundation (again, heavily funded by the Kochs), Mike McGraw of Occidental Petroleum, and Todd Myers of the Washington Policy Center (a think tank that sits under the umbrella of the Koch Foundation-funded State Policy Network).

A Model That’s Been Passed and Proposedย Elsewhere

Theย Act Granting the Authority of Rural Counties to Transition to Decentralized Land Use Regulationย model billย has made a tour to statehouses nationwide, popping up in Ohio, Idaho, Colorado, and Texas. The model passed in some states, while failing to pass in others.

Here is a rundown of similar bills that DeSmogBlog has identified soย far:

Ohioย HBย 278

Long before the ALEC model bill was enacted in 2010, Ohio passed a similar bill in 2004,ย HB 278, which gives exclusive well-permitting, zoning, and regulatory authority to the Ohio Department of Natural Resources (ODNR). Ohio is home to theย Utica Shale basin.

Mirroring ALEC‘s model, HB 278 gives the โ€œโ€ฆDivision of Mineral Resources Management in the Department of Natural Resourcesโ€ฆexclusive authority to regulate the permitting, location, and spacing of oil and gas wells in theย state..โ€

Could it be that the ALEC model bill was actually inspired by HB 278? It’s very possible, based on recentย history.

As was the case with ALEC‘sย hydraulic fracturing chemical fluid โ€œdisclosureโ€ model billย (actually rife with loopholesย ensuring chemicals will never be disclosed), ALEC adopted legislation passed in the Texas state legislature as its ownย at its December 2011ย conference.

Idaho HBย 464ย 

Idaho’s House of Representatives passed HB 464 in February 2012ย in aย 54-13-3 roll call vote. A month later, the bill passed in the Senate in aย 24-10-1 roll call vote. Days later, Republican Gov. Butch Otterย signed the bill into law.

Key language from HB 464 reads,ย 

It is declared to be in the public interestโ€ฆto provide for uniformity and consistency in the regulation of the production of oil and gas throughout the state of Idahoโ€ฆ[,] to authorize and to provide for the operations and development of oil and gas properties in such a manner that a greater ultimate recovery of oil and gas may be obtained.ย ย (Snip)

It is the intent of the legislature to occupy the field of the regulation of oil and gas exploration and production with the limited exception of the exercise of planning and zoning authority granted cities andย countiesโ€ฆ

The Democratic Party State Senate Minority Office was outraged about the bill’sย passage.ย 

โ€[HB] 464 establishes Idaho law governing oil and gas exploration and development including limits to local control over the location of wells, drilling processes, water rights and the injection of waste materials into the ground,โ€ reads a press release by the Idaho State Senate Minority Office. โ€œ[HB 464] preempts local land-use planning statute dating back to 1975. Counties will have little input in the permitting process whereby well sites are selected (or restricted) and no role in planning andย zoning.โ€

Sound familiar? Like PA Act 13 and the ALEC model? Itย should.

Full-scale fracking has yet to take place in Idaho, though the race is on, with Idahoans signing more and more leases with each passing day. Thanks to gas industry lobbyists’ use of ALEC‘s model bill process, the industry will have far fewer hurdles to clear in the state when the raceย begins.ย 

Colorado SBย 88

The Demoratic Party-controlled Colorado State Senate struck down an ALEC copycat bill, SB 88, in Februaryย 2012.

The Bill Summary portion of SB 88 explains the bill concisely, mirroring, once again, PA Act 13 and the ALEC Model Bill: โ€œโ€ฆthe Colorado oil and gas conservation commission has exclusive jurisdiction to regulate oil and gas operations, and local regulation of oil and gas operations is preempted by stateย law.โ€

Colorado sits atop the Niobrara Shale basin. Like Pennsylvania, it has seen many cities successfully move to ban fracking, making the goal of a bill of this nature all the moreย obvious.

โ€œFrom Colorado Springs to Boulder County, cities and counties across Colorado have passed measures against fracking,โ€ Sam Schabacker of Food and Water Watch told the Coloradoย Independent at the time SB 88 was struck down. โ€œThis bill is an attempt by the oil and gas industry to strip local governments of what little power they have to protect their citizens and water resources from the harms posed byย fracking.โ€ย 

Far from a completed debate, as covered in a June 2012 follow-up story by the Colorado Independent, things are just getting underway on this one in The Centennial State.ย ย 

โ€œI donโ€™t know where it goes from here. I suspect there is a happy medium and there is a compromise that can be reached,โ€ Democratic Party State Senate President Brandon Shaffer told theย Independent. โ€œI also suspect next year additional legislation will come forward on both sides of the spectrum. Ultimately I think the determination will be made based on the composition of each of the chambers. If the Democrats are in control of the House and Senate, there will be more emphasis on local control.โ€ย ย 

Former Sen. Mike Kopp (R) was one of the public sector attendees at the Dec. 2010 Energy, Environment, and Agriculture Task Force Meeting where the ALEC model billย passed.ย 

Texas HB 3105 andย SBย 875

In May 2011, TX SB 875ย passed almost unanimously.ย The bill essentially calls for the elimination, in one fell swoop, of theย common law of private nuisanceย inย Texas.

SB 875’s key operative paragraph explains,

[Entities] subject to an administrative, civil, or criminal action brought under this chapter for nuisance or trespass arising from greenhouse gas emissions [have] an affirmative defense to that action if the person’s actions that resulted in the alleged nuisance or trespass were authorized by a rule, permit, order, license, certificate, registration, approval, or other form of authorization issued by the commission or the federal government or an agency of the federalย governmentโ€ฆ

Texas โ€“ home to the Barnett Shale basin and the Eagle Ford Shale basin โ€“ played a dirty trick here, but what else would one expect from the government of a Petroย State?

The ALEC model bill calls for a transition from centralized power by local governments to individual property rights under the common law of private nuisance, a civil suit that allows those whose private property has been damaged to file a legal complaint with proper authorities. Now, under the dictates of SB 875, even these rights have beenย eviscerated.

Perhaps Texas exemplifies a realization of the oil and gas industries’ ideal world: legal rights for no oneย exceptย themselves.

โ€œThis [bill allows] the willful trespass onto private property of chemicals and or nuisances, thus destroying the peaceful enjoyment of private property, which someone may have put their life savings into,โ€ Calvin Tillman, former Mayor of Dish, Texas and one of the stars of Josh Fox’s Academy Award-nominated documentary film, โ€œGasland,โ€ wrote in a letter. โ€œTherefore, private citizens would have no protection for their private property if this amendment wasย added.โ€

HB 3105’s key language, meanwhile,ย makes the following illicit (emphasesย mine):ย 

โ€ฆthe adoption or issuance of an ordinance, rule, regulatory requirement, resolution, policy, guideline, or similar measureโ€ฆby a municipality that..has effect in the extraterritorial jurisdiction of the municipality, excluding annexation, and that enacts or enforces an ordinance, rule, regulation, or plan that does not impose identical requirements or restrictions in the entire extraterritorial jurisdiction of the municipalityโ€ฆorย damages, destroys, impairs, or prohibits development of a mineral interestโ€ฆ

This bill, unlike SB 875, never passed, though if it did, it would do basically the same thing as PA Act 13 and the ALEC model. If it ever does pass, however, it would mean that Texans would have literally no legal standing to sue the oil and gas industry for wrongdoing in theirย state.

ALEC‘s Bifurcated Attack: Erode Local Democracy, Strip Federalย Regs,

Coming full circle, though PA Act 13 was struck down, for now, as constitutional, that doesn’t necessarily mean ALEC copycat versions like it won’t start popping up in other statehousesย nationwide.ย 

Sleep on this for awhile. There’s more toย come.

Part two of DeSmog’s investigation on ALEC‘s dirty energy agenda will show that, along with pushing for the erosion of local democracy as we know it today, ALEC has also succeeded in promulgating legislation that would eliminate Environmental Protection Agency (EPA) power to regulate greenhouse gas emissions – another Big Business giveaway of epicย proportions.

If anything is clear, it’s this: statehouses have become a favorite clearinghouse for polluters to install the โ€œCorporate Playbookโ€ in place ofย democracy.

Stay tuned for Part Two of DeSmog’s investigation, comingย soon.

Photo Credit:ย James Steidl | ShutterStock

**In an earlier version of this post, we mistakenly attributed the court decision to the Pennsylvania Supreme Court, though it was a Pennsylvania Commonwealth Court decision. We regret theย error.

***Update:ย On July 27, PA Gov. Tom Corbett (R) announced his Administration would be appealing the PA Commonwealth Court decision to the PA Supreme Court. Further, his Administration has requested an expedited review.

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Steve Horn is the owner of the consultancy Horn Communications & Research Services, which provides public relations, content writing, and investigative research work products to a wide range of nonprofit and for-profit clients across the world. He is an investigative reporter on the climate beat for over a decade and former Research Fellow for DeSmog.

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