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July 27 2012

10:30

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

On July 26, the Pennsylvania Supreme Court ruled PA Act 13 unconstitutional. The bill would have stripped away local zoning laws, eliminated the legal concept of a 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 "…violates 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 – 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 and noise."

Act 13 — pejoratively referred to as "the Nation's Worst Corporate Giveaway" by AlterNet reporter Steven Rosenfeld — would have ended local democracy as we know it in Pennsylvania.

"It’s absolutely crushing of local self-government," Ben Price, project director for the Community Environmental Legal Defense Fund (CELDF), told Rosenfeld. "It’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 at it."

Where could the idea for such a bill come from in the first place? Rosenfeld pointed to the oil and gas industry in his 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 seemingly 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 legislation to?

The answer, in a word: ALEC.

PA Act 13, Originally an ALEC Model Bill 

The American Legislative Exchange Council (ALEC) is in the midst of hosting its 39th Annual Meeting this week in Salt Lake City, Utah. ALEC is appropriately described as an ideologically conservative, Republican Party-centric "corporate bill mill" by the Center for Media and Democracy, the overseer of the ALEC Exposed project. 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 "model bills." Lobbyists have a "voice and a vote in shaping policy," CMD explains. They have de facto veto power over whether their prospective bills become "models" that will be distributed to the offices of politicians in statehouses nationwide.

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

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

The model bill opens by saying that "…the planning and zoning authority granted to rural counties may encourage land use regulation which is overly centralized, intrusive and politicized." The model bill's central purpose is to "grant rural counties the legal authority to abandon their planning and zoning authority in order to transition to decentralized land use regulation…"

The key legal substance of the bill reads, "The local law shall require the county to repeal or modify any land use restriction stemming from the county’s exercise of its planning or zoning authority, which prohibits or conditionally restricts the peaceful or highest and best uses of private property…"

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, running 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' 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 Proposed Elsewhere

The Act Granting the Authority of Rural Counties to Transition to Decentralized Land Use Regulation model bill 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 so far:

Ohio HB 278

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

Mirroring ALEC's model, HB 278 gives the "…Division of Mineral Resources Management in the Department of Natural Resources…exclusive authority to regulate the permitting, location, and spacing of oil and gas wells in the state.."

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

As was the case with ALEC's hydraulic fracturing chemical fluid "disclosure" model bill (actually rife with loopholes ensuring chemicals will never be disclosed), ALEC adopted legislation passed in the Texas state legislature as its own at its December 2011 conference.

Idaho HB 464 

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

Key language from HB 464 reads

It is declared to be in the public interest…to provide for uniformity and consistency in the regulation of the production of oil and gas throughout the state of Idaho…[,] 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.  (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 and counties…

The Democratic Party State Senate Minority Office was outraged about the bill's passage. 

"[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," reads a press release by the Idaho State Senate Minority Office. "[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 and zoning."

Sound familiar? Like PA Act 13 and the ALEC model? It 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 race begins. 

Colorado SB 88

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

The Bill Summary portion of SB 88 explains the bill concisely, mirroring, once again, PA Act 13 and the ALEC Model Bill: "…the 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 state law."

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 more obvious.

From Colorado Springs to Boulder County, cities and counties across Colorado have passed measures against fracking,” Sam Schabacker of Food and Water Watch told the Colorado Independent at the time SB 88 was struck down. “This 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 by fracking.” 

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.  

I don’t know where it goes from here. I suspect there is a happy medium and there is a compromise that can be reached,” Democratic Party State Senate President Brandon Shaffer told the Independent. “I 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.”  

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 bill passed. 

Texas HB 3105 and SB 875

In May 2011, TX SB 875 passed almost unanimously. The bill essentially calls for the elimination, in one fell swoop, of the common law of private nuisance in 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 federal government…

Texas — home to the Barnett Shale basin and the Eagle Ford Shale basin — played a dirty trick here, but what else would one expect from the government of a Petro 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 been eviscerated.

Perhaps Texas exemplifies a realization of the oil and gas industries' ideal world: legal rights for no one except themselves.

"This [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," Calvin Tillman, former Mayor of Dish, Texas and one of the stars of Josh Fox's Academy Award-nominated documentary film, "Gasland," wrote in a letter. "Therefore, private citizens would have no protection for their private property if this amendment was added."

HB 3105's key language, meanwhile, makes the following illicit (emphases mine): 

the adoption or issuance of an ordinance, rule, regulatory requirement, resolution, policy, guideline, or similar measure…by 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 municipality…or damages, destroys, impairs, or prohibits development of a mineral interest

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 their state.

ALEC's Bifurcated Attack: Erode Local Democracy, Strip Federal 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 statehouses nationwide. 

Sleep on this for awhile. There's more to 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 epic proportions.

If anything is clear, it's this: statehouses have become a favorite clearinghouse for polluters to install the "Corporate Playbook" in place of democracy.

Stay tuned for Part Two of DeSmog's investigation, coming soon.

(**Full Disclosure: Steve Horn is a former employee of CMD and worked on the ALEC Exposed project)

Image Credit: Center for Media and Democracy | ALEC Exposed

March 28 2012

17:26

On Our Radar: The Maldives Movie

In a sense, "The Island President" is the biggest media event that the deposed leader of the Maldives could have hoped for. But the attention he needs has more to do with his country's political turmoil then the film's theme, climate change.

January 09 2012

17:29

On Our Radar: Arctic Oil Discovery

The discovery appears to brighten prospects for Norway's industry, which had not had much luck exploring in the Barents Sea until recently.

December 12 2011

20:00

Learning How to Kill Trees

Scientists find evidence that the water distribution systems of aspens in Colorado were damaged during a drought, suggesting that they died of thirst rather than a lack of carbohydrates linked to a halt in photosynthesis.

December 01 2011

02:17

Suncor Refinery Spill Threatens River Supplying Denver Drinking Water

Just another day in reckless energy land. A broken pipeline at the Commerce City refinery operated by tar sands producer Suncor appears to have leaked an "oily muck" into Sand Creek in Colorado.

The spill may pose a threat to Denver drinking water supplies, although luckily it appears to have been contained, according to some media accounts.

Reuters reports that:

"The Canadian energy firm said it had not yet identified the source of the leak, but acknowledged it was likely coming from its 93,000 barrel-per-day (bpd) refinery in the area. …

Sand Creek joins the South Platte River, a major source of drinking water for the Denver metropolitan area.

Suncor's Commerce City plant recently underwent a $540 million upgrade to enable it to handle more heavy oil sands crude from Canada.

NRDC's Switchboard blogger Anthony Swift reports that: 

The spill was discovered by a fisherman Sunday morning who saw sheen on the river and said the area smelled like a gas station. On Monday officials from the Environmental Protection Agency (EPA) arrived onsite and Suncor reported a leak. On Tuesday evening Suncor and EPA officials decided to dig a trench. This afternoon, EPA officials announced that three small booms erected on a bank of Sand Creek appear to be containing the oil and preventing further contamination.

The extent of the contamination is still unclear. If the leak involves tar sands diluted bitumen, the contamination could be more severe. Tar sands diluted bitumen spills are associated with significantly more submerged oil which cannot be contained by surface booms. Spill responders are still struggling to handle the submerged oil at Enbridge’s Kalamazoo oil spill. However, this spill shows the weakness in spill response and is yet another example of the very real risks inherent in tar sands infrastructure projects.

National Wildlife Federation has more information about the potential impacts on wildlife and water supplies: Possible Tar Sands Spill Fouls Colorado Creek, Threatens Wildlife and Drinking Water

Image credit: Jeff Whyte / Shutterstock

November 08 2011

16:31

October 14 2011

11:23

From Oil and Gas Revenue, the Greenest of Schools

A new K-to-12 school in rural Mosca, Colo., offers plenty of natural daylight and other design features intended to create a better learning environment while reducing energy costs for the district.

July 05 2011

00:58

G.E. Bursts into the Solar Panel Field Equipped to Succeed


GE enters the thin-film solar panel market in a big wayGuest Post by Kriss Bergethon

General Electric is planning the largest solar panel factory in the United States, looking to get into the growing “green” industry in a big way, and on an accelerated timeline.

According to Victor Abate, vice president for G.E.’s renewable energy business, the news follows G.E.’s ongoing investments in solar panels, and takes their efforts to a much larger scale than ever before.

G.E. is leveraging their presence in Colorado, setting up the factory there, and bringing direct and indirect employment to about 1,000 people. The new factory will provide employment for 400 workers and create 600 jobs in related business nearby.

Having acquired Arvada-based PrimeStar Solar Inc., G.E. is off to a running start with a factory that is already tooled for highly economical thin-film solar panels. The panels are certified by the National Renewable Energy Lab as the most efficient of their kind. The factory will manufacture thin-film photovoltaic panels, made of cadmium telluride, by 2013.

Cadmium telluride panels are less efficient than ordinary ones, but can be produced at a lower cost. G.E. will manufacture the most efficient cadmium telluride panels currently possible, and because of the relatively low expense, expects to produce a high volume annually. There is a healthy market for cadmium telluride panels among utility providers and other large-scale operators.

With this announcement, G.E. is signaling again that it is serious about increasing its energy business. G.E. already holds large stakes in nuclear power and natural gas. Recent expansion in these energy sources has been largely through acquisitions.

According to Abate, G.E. will be a cost leader and a technology leader. “We’re excited about our position in a 75 gigawatt solar market over the next five years,” he added.

G.E. is not alone in pursing the solar panel business, which is very competitive. One major player is Arizona-based First Solar, the market leader in thin-film panel manufacturing. Abound Solar, another competitor, is rapidly adding manufacturing capacity for its cadmium telluride panels. The company recently took out a $400 million federal loan guarantee to fund their expansion.

G.E. won’t be applying for federal loan guarantees like Abound Solar has. Instead, they plan to explore state and federal manufacturing tax credits to expand as needed.

G.E.’s manufacturing roll-out will be small compared to First Solar’s level of production. G.E.’s Abate said his company’s solar efforts can grow swiftly, as happened with their wind energy business. Abate told the New York Times, “It’s a $6 billion platform and it was a couple of hundred million dollars in ’02,” regarding G.E.’s wind division. “G.E. is very good at scale. In ’05, we were building 10 turbines a week. By ’08, we were doing 13 a day.”

G.E. faces competition from low-cost, government-subsidized Chinese manufacturers. Without similar cash subsidies available to them in the U.S., G.E. will deal with low cost international competitors as it does already in the wind business.

——————

Kriss Bergethon is a writer and solar expert from Colorado, visit his site at Solar Panels

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June 23 2011

21:26

Fracking and Water: E.P.A. Zeroes In on 7 Sites

The agency plans case studies on natural gas drilling's effect on drinking water in Pennsylvania, Texas, Colorado, North Dakota and Louisiana.

May 27 2011

19:52

Oil and Gas Disasters Raise The Ire of Colorado Hunters

The Bull Moose Sportsmen Alliance in Colorado has set their sights on the oil and gas industry. In a new report, the hunting and fishing group highlights the damage that the dirty energy industry has done to their hunting and fishing grounds for years. Among the more damning findings are the fact that there are over 100 oil spills every year in just three counties in Colorado – Garfield, Mesa, and Rio Blanco. The state of Colorado has confirmed that no fewer than 77 of these spills managed to taint water supplies of the three counties. These spills combined have leaked more than 5.6 million gallons of oil into the lands that the Bull Moose Sportsmen Alliance works to preserve.

As the Alliance points out, the hunting and fishing industry in Colorado brings in more than $1.2 billion a year, making it more profitable than the sports industry in the state, which includes NFL, NBA, and MLB teams. But thanks to the reckless oil and gas industry, the ecosystems and habitat that hunters and fishermen spend that billion-plus dollars to enjoy are threatened.
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Here are some of the highlights from the group’s report:

Oil and gas companies reported 992 oil and gas spills from 2001 to 2010. Those spills released at least 5.6 million gallons of wastewater, oil and other chemicals and fluids.

Operators in Garfield County – the epicenter of a natural gas drilling boom in the last decade – reported 535 spills reported to state regulators from 2001 to 2010. Those releases spilled about 3.5 million gallons of oil and gas fluids. Nearly 2 million gallons were unrecovered and remain on the landscapes of the county.

Garfield County also recorded the highest amount of oil and gas spills and releases that tainted surface and groundwater. In 10 years, incidents have infiltrated surface water at least 45 times and groundwater 11 times.

Wastewater from oil and gas operations accounts for the vast majority of spilled fluids in the three counties. About 91 percent of the oil and gas fluids spilled in the three counties from 2001 to 2010 was wastewater, which is also known as produced water. That water can contain salt, oil and grease, along with naturally occurring radioactive material and inorganic and organic compounds.

Equipment failure was the leading cause for spills in Garfield, Rio Blanco and Mesa counties with at least 49 percent of the 992 spills were caused by faulty equipment. Human error caused at least 23 percent of the spills, according to the analysis.


The group fears that the increased pressure from Washington to drill for more domestic oil and gas will only exacerbate the current problems in their area, which would lead to irreparable harm to their environment, economy, and personal lives.

For more information about the Bull Moose Sportsmen Alliance, visit their website and download the full report [PDF].

February 28 2011

19:43

Climate Change Takes Toll on the Lodgepole Pine

The tall, slender pines, once used widely by Native American tribes as poles for teepee lodges, could largely disappear from the region by the end of the century if current climate trends persist, researchers say.

February 16 2011

13:14

The Coming Classroom Climate Conflict

I’ve just completed a trip out to the National Center for Atmospheric Research in Boulder, Colorado—a town that’s in many ways the chief hub for our country’s climate scientists, as well as for a variety of other researchers (especially on weather and renewable energy) and many science education specialists. My visit was focused on science communication, but another theme kept coming up: climate science education, and the conflicts arising therein.

A lot of people out here seem worried about growing resistance to climate science teaching in schools. It was a regular topic of conversation, and at the end of my public talk, one audience member asked whether there needs to be an equivalent of the National Center for Science Education for the climate issue. (The National Center for Science Education is the leading organization defending the teaching of evolution in the U.S.). And no wonder: This state has already seen one of the most direct attacks on climate education yet—although it seems to have fizzled.<!--break-->

Last year, a group called “Balanced Education for Everyone” was linked to an effort to try to prevent teaching about human-caused climate change in Mesa, Colorado schools—although the Denver Post reports that the organization has since disbanded, for reasons that seem unclear. “Balanced Education for Everyone" had also been supporting including the anti-global warming movie “Not Evil Just Wrong” in schools, as well as a climate “skeptic” curriculum that went with it.

Similarly, in a recent study published in the Journal of Geoscience Education, researcher Sarah Wise reports on a 2007 survey of 628 Colorado teachers, which sought to determine what they currently teach about climate change and what kind of resistance they’ve seen as a result of doing so. The most troubling finding was that 85 percent of the teachers felt that “both sides” of the “debate” over whether climate is human caused should be presented in the classroom. Furthermore, 13 percent of the earth science teachers surveyed said they had experienced pressure from another teacher, parent, or other party not to teach global warming.  

Does the future hold more of these conflicts? I think the only reasonable supposition is, “yes it will.”

I’ve already discussed here the growing trend towards folding climate change into anti-evolution bills, and singling “global warming” out as a uniquely controversial subject to be critiqued in the classroom. I think the most logical expectation is that the national controversy over climate change will continue to filter into schools just as it diffuses across all levels of society--and moreover, it should follow a predictable pattern.

Just as the general public breaks into “6 Americas” when it comes to levels of knowledge about (and acceptance of) climate change science, so will teachers, school districts, and communities. And in those communities where the so-called “dismissives” (the most devout climate science rejecters, and currently about 12 % of the U.S. as a whole) are most prominent, conflicts will be most likely to erupt.

Meanwhile, the vast majority of what's going on in schools will never draw significant public attention. A recent study on evolution education, for instance, found that 13 percent of public school science teachers in the U.S. actively teach creationism—even though this has repeatedly been ruled unconstitutional. Legally, every one of those teachers (and their schools) could be sued, but we see nothing like a proportionate number of lawsuits erupting. In all likelihood, this creationist teaching is mostly happening in communities where it is perfectly well accepted and not even controversial. It’s under the radar.

Meanwhile, the evolution survey also found that fully 60 percent of teachers “compromise” in some way on its teaching so as to avoid controversy—showing “both sides,” dodging the issue, giving caveats, etc. In light of the politicization of climate science—and the Colorado data above—we have to assume that many teachers will follow a similar pattern on the teaching of the anthropogenic causes of climate change.

What can we do about this? We certainly do need a national organization to defend climate education in schools—and we need much more focus on preparing teachers for handling controversies. Those teachers who are well informed, and confident in their abilities, will be the least likely to fall into the bad teaching traps outlined above, or to cave to political pressure from parents and others in the community. We need to empower them—so they can accurately inform their students about the single most important thing happening to the planet.

January 31 2011

16:21

January 25 2011

21:32

December 27 2010

21:03

In the Job-Starved West, a Debate Over Uranium's Legacy

Is uranium a victim of emotional prejudice or a dangerous and unwelcome energy source?

December 16 2010

21:42

October 12 2010

18:35

September 23 2010

17:32

On Our Radar: Shrinking Caribou Herds

As development impinges on their range, rapidly rising Arctic temperatures throw caribou out of sync with the environment in which they evolved.

August 20 2010

14:13

Dust-Bowl Bust Haunts Wheat Farmers

Many wheat farmers are nervous about planting more wheat this year, fearing that prices that have recently soared could fall back to earth -- or that commodity speculators and investment funds might be amplifying the a shortfall in Russia.

June 21 2010

11:20

A $100 Million Pool for Solar Financing

PG&E Corporation, the California utility holding company, has created a $100 million tax equity fund to finance residential solar installations by SunRun, a San Francisco startup that leases photovoltaic arrays to homeowners.
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