The Law
November Light - French Azilum, PA
Brian Keeler Studio, www.briankeeler.com
Pennsylvania Environmental Hearing Board
On August 26, 2021, PennFuture, Clean Air Council, and Sierra Club appealed to the DEP Environmental Hearing Board a second extension of the air pollution permit the Pennsylvania DEP issued for the New Fortress Energy LNG facility. Read more here.
Laws favoring development
As a Pennsylvania resident, although you have a constitutional right to environmental protection, many laws disadvantage communities. Most Pennsylvania law favors development at the expense of environmental protection and conservation. Issues have been described thusly by the Community Environmental Legal Defense Foundation breaks down rights among,
Community rights
Corporate “rights”
Democratic rights
Rights of Nature
State Laws and Agencies just don’t have enough power to protect and conserve the environment.
Act 13 has mostly been used to enable gas development. https://www.dep.pa.gov/Business/Energy/OilandGasPrograms/Act13/Pages/default.aspx
DEP Permitting was discussed on the Find Out page and how you can be notified of your rights via the Pennsylvania Bulletin to comment and appeal. Be aware that nothing in DEP’s “general” permitting programs for gas fracking and processing requires a wide-area environmental assessment (aka harms vs. benefits) such as that for municipal waste landfills. The Regulatory Fallacy: The permitting process, and the regulations supposedly enforced by regulatory agencies, are intended to create a sense of protection and objective oversight. By working through regulatory agencies such as the Environmental Protection Agency (EPA) and our state agencies, we’re told we can protect our community. We can challenge permit applications and demand regulations be enforced. Except, by their very definition, regulatory agencies regulate the amount of harm that takes place. When they issue permits, they give cover to the applicant against liability to the community for the legalized harm. https://celdf.org/community-rights/
Pennsylvania’s Act 14 notice, discussed above, does not compel the “host municipality” to notify neighboring municipalities of a company seeking a DEP permit.
Whereas municipal zoning can determine “where”, it has to accommodate all legal uses.
Local governments do not have the ability to assess property taxes on gas and oil reserves. Representation without Taxation, How Natural Gas Producers Escape Taxes in Pennsylvania. Pennsylvania Budget and Policy Center, April 25, 2011.
http://pennbpc.org/sites/pennbpc.org/files/How-Natural-Gas-Producers-Escape-Taxes-in-PA.pdfUnfortunately, PennDOT can’t help you avoid unwanted truck traffic on state roads. If a road use is legal, any legal vehicle can use it. Only if there is a history of crashes or incidents, such as steep downhill or tight-turning radius, would they be able to reroute truck traffic.
PUC’s jurisdiction is only in regards to gas and LNG movement to PA power generators. It has no jurisdiction over interstate movement. That’s the role of the Department of Transportation, FERC, and PHMSA.
Commerce: If they frack it, they have the right to move it to market, anywhere.
“We can not solve our problems with the same level of thinking that created them.”
~ Albert Einstein
Wyalusing Creek
Brian Keeler Studio, www.briankeeler.com
Pennsylvania Constitution – Environmental Rights Amendment
The best protection for Pennsylvanians is our Constitution. On May 18, 1971, Pennsylvania's voters by a four-to-one margin ratified what is now Article I, Section 27 of our state constitution, what has become known as The Environmental Rights Amendment. “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.”
https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=00&div=0&chpt=1&sctn=27&subsctn=0
The Environmental Rights Amendment has been key to court cases:
Gorsline et al. v. Board of Supervisors of Fairfield Township v. Inflection Energy LLC et al. PennFuture began representing the Gorslines and Batkowskis in January 2014, when its lawyers appealed a decision by Fairfield Township to issue Inflection Energy a conditional use permit for operation of a shale gas well pad in the residential portion of the municipality’s R-A (Residential-Agricultural) zoning district.
https://www.pennfuture.org/Blog-Item-PennFuture-Secures-Victory-for-Homeowners-in-PA-Supreme-Court-CaseOn December 19, 2013, the Pennsylvania Supreme Court issued a final in the case Robinson Township, Delaware Riverkeeper Network, et al. v. Commonwealth, 83 A.3d 901 (2013). In the plurality opinion written by the Chief Justice of the Court, the justices vindicated the importance and power of the Environmental Rights Amendment of the Pennsylvania Constitution.
https://www.delawareriverkeeper.org/ongoing-issues/pennsylvanias-green-amendment-generations
New York’s recently enacted climate Law (Pennsylvania has no such comparable law.)
“… the agency also found that the introduction of a new natural gas pipeline would be ‘inconsistent’ with New York's recently-enacted climate law—landmark legislation that requires the state to transition its power sector to net-zero emissions by 2040 and reduce overall greenhouse gas emissions by 85 percent from 1990 levels by 2050.” https://insideclimatenews.org/news/21052020/williams-pipeline-new-york-natural-gas-fracking
Pennsylvania Municipalities Planning Code
Municipal governments are bound by the PA Municipalities Planning Code. It can work to your advantage or disadvantage.
Excerpts:
Section 105. Purpose of Act.--It is the intent, purpose and scope of this act to protect and promote safety, health and morals; to accomplish coordinated development; to provide for the general welfare by guiding and protecting amenity, convenience, future governmental, economic, practical, and social and cultural facilities, ……to promote the preservation of this Commonwealth's natural and historic resources and prime agricultural land;…………… and to permit municipalities to minimize such problems as may presently exist or which may be foreseen and wherever the provisions of this act promote, encourage, require or authorize governing bodies to protect, preserve or conserve open land, consisting of natural resources, forests and woodlands, any actions taken to protect, preserve or conserve such land shall not be for the purposes of precluding access for forestry. (105 amended May 9, 2002, P.L.305, No.43)
Contiguous and neighboring municipalities have rights! Suggestion: Search the PA Municipalities Planning Code on the words “contiguous” and “neighboring”. Example: Article III - Comprehensive Plan. Section 301. Preparation of Comprehensive Plan. (a) The municipal, multimunicipal or county comprehensive plan, consisting of maps, charts and textual matter, shall include, but need not be limited to, the following related basic elements: (5) A statement indicating that the existing and proposed development of the municipality is compatible with the existing and proposed development and plans in contiguous portions of neighboring municipalities, or a statement indicating measures which have been taken to provide buffers or other transitional devices between disparate uses, and a statement indicating that the existing and proposed development of the municipality is generally consistent with the objectives and plans of the county comprehensive plan.
Article VI – Zoning. Section 602.1. County Review; Dispute Resolution. The county planning commission shall offer a mediation option to any municipality which believes that its citizens will experience harm as the result of the adoption of a zoning ordinance or an amendment to an existing zoning ordinance in contiguous municipalities, if the contiguous municipalities agree. In exercising such an option, the municipalities shall comply with the procedures set forth in Article IX. The cost of the mediation shall be shared equally by the parties, unless otherwise agreed. The problem is that we can’t find anywhere in the code that the municipality that made the zoning amendment is required to tell any other municipality.
Local Government Services
The Governor's Center for Local Government Services (GCLGS) is a one-stop shop for local government officials and provides a wealth of knowledge and expertise on all matters affecting local government operations throughout Pennsylvania.
https://dced.pa.gov/local-government/
And, the Land Use Library
https://www.landuselawinpa.com/
Your County Plan
Be sure to check out your county comprehensive land use plan and other county-wide initiatives.
Pennsylvania Environmental Hearing Board.
Read about your rights to appeal a decision of DEP. Recall that those PA Bulletin notices informed you of your right to appeal via the Environmental Hearing Board. Caution: Observe published deadlines. http://ehb.courtapps.com/content/noticeOfAppeal.pdf