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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

May 01 2012

16:35

On Our Radar: Pipeline Company Acquires Sunoco

Energy Transfer says the $5.3 billion deal will expand its presence in the transportation and storage of crude oil, natural gas and refined petrochemicals.

April 15 2012

16:00

More on the Link Between Earthquakes and Fracking

Next week, the United States Geological Survey will present a report on the increase in earthquakes in Oklahoma and Arkansas related to the natural gas industry, but it will identify more than one technique as the likely cause.

March 12 2012

17:54

Enviro News Wrap: Fracking Causes Earthquakes in Ohio; Exxon Plans on High Oil Prices; American Enterprise Institute’s Trouble with Math


The Latest Environmental News HeadlinesGlobalWarmingisReal contributor Anders Hellum-Alexander wraps-up and comments on the climate and environmental news headlines for the past week:

January 20 2012

05:24

72 Percent of Ohioans Want A Fracking Moratorium, Citing Need For More Study

The unconventional gas industry's latest rush in the United States will land it in the state of Ohio, but a recent poll shows that the state's residents are not rolling out the red carpet for an industry famous for threatening drinking water supplies, causing earthquakes, noise and air pollution and trying to proliferate global addiction to fossil fuels.

Results from a Quinnipiac University poll released today shows that 59 percent of those polled have heard of or read about hydraulic fracturing, or "fracking," the complex and risky process that enables unconventional gas drilling. A whopping 72 percent of Ohioans familiar with fracking support a moratorium on the process until it is studied further.

The other 41-percent of citizens are likely to follow suit once they discover what is headed their way, and how little this industry will help them from a financial point of view in the long run.

Ohio recently found itself with the fracking shakes, as magnitude 4.0-level earthquakes struck near Youngstown on New Year's Eve. Scientists suspect the earthquakes resulted from a wastewater injection well disposing of fracking brine from Pennsylvania. The Christian Science Monitor explained in a story that the "quake triggered shaking reportedly felt as as far away as Buffalo, N.Y., and Toronto." 

These fracking-related earthquakes are not an aberation, but rather a repeated occurence linked to fracking in Texas, Oklahoma, and Arkansas, as well as abroad in the U.K., in the city BlackpoolAl Jazeera English recently ran a story on the Ohio fracking-induced earthquakes. Watch:

  

Fears 'fracking' causes Ohio Quakes

Multinational Gas Corporations Head to Ohio

On the financial side of things, the gas industry's rush to drill the Utica Shale is led by the nation's largest unconventional gas corporation, Chesapeake Energy. Chesapeake has a huge joint ownership stake in the Utica Shale with Total SA, the French oil and gas conglomerate. As DeSmogBlog wrote a bit over a month ago, "Total S.A. is positioning itself to acquire 25 percent of Chesapeake Energy’s stake in Ohio's Utica Shale, valued at $2.14 Billion." 

Also in on the hunt for gas in the Utica are industry giants Royal Dutch ShellChevronExxonMobil, Anadarko Petroleum, and Range Resources, a corporation now infamous for its use of psychological warfare tactics to "win the hearts and minds" of U.S. citizens in the neighboring Marcellus Shale basin.

So much for "energy independence," "boosting the local economy," and small, independent "mom and pop" gas industry start-ups.

Thankfully, Ohioans aren't drinking the kool-aid and have chosen, like the citizens of Bulgaria</a> recently did, to <a href=" https:="">fight back against the industry's destructive deceit. They are wise to demand a moratorium on fracking, which DeSmogBlog called for in Fracking The Future.

Time will tell if they succeed.

January 12 2012

20:20

On Our Radar: A Fracking Confrontation in Ohio

Residents of Youngstown express disappointment after state officials decline to link 11 earthquakes to fracking for a deep-injection gas well.

January 08 2012

19:59

Fracking Earthquakes Becoming Serious Cause for Concern

For the fracking industry, 2012 is off to a shaky start…literally. On New Year’s Eve 2011, a 4.0 magnitude earthquake was recorded in Ohio, one of the largest fracking-related quakes to date. According to reports, the quake was felt across hundreds of square miles in the state of Ohio, and scientists suspect it is related to hydraulic fracturing wastewater disposal near Youngstown, Ohio.

The New Year’s Eve quake is just the latest in a growing list of fracking-related earthquakes that have made headlines in the last 12 months. From DeSmogBlog’s Year In Dirty Energy: Fracking report:
  

New reports are surfacing that link fracking to earthquakes that occurred in January in Oklahoma. According to a new study by the Oklahoma Geological Survey [PDF], fracking is linked to 50 mini-earthquakes that occurred on January 18, 2011 in Oklahoma.

The occurrence of so-called “induced seismicity” – seismic activity caused by human actions – in conjunction with fluid injection or extraction operations is a well-documented phenomenon. However, induced earthquakes large enough to be felt at the surface have typically been associated with large scale injection or withdrawal of fluids, such as water injection wells, geothermal energy production, and oil and gas production. It was generally thought that the risk of inducing large earthquakes through hydraulic fracturing was very low, because of the comparatively small volumes of fluid injected and relatively short time-frame over which it occurs. As the controversy over hydraulic fracturing has heated up, however, researchers and the public have become increasingly interested in the potential for fracking to cause large earthquakes.

But this is hardly a new phenomenon. Studies show that fracking practices in the 1970s had caused similar seismic activity in Oklahoma, according to E&E News.
 

But the most recent Ohio quake has generated a more-urgent cause for concern than the previous quakes. As The Huffington Post points out:

Earthquakes have a special ability to grab public attention.

That's especially true after Saturday's quake near Youngstown, at magnitude 4.0 strong enough to be felt across hundreds of square miles. Gov. John Kasich, a drilling proponent, has shut down the wastewater well on which the quake has been blamed, along with others in the area, as the seismic activity is reviewed.

Ohio's closure of the well will have little to no impact on drilling, said Travis Windle, a spokesman for the Marcellus Shale Coalition, an industry group based in Pennsylvania. Four of the five wells that Ohio shut down were not operational, Windle said.

Kasich told reporters over the weekend that he doesn't believe the energy industry should be blamed for issues arising from disposal of their byproducts (fracking). That would be like blaming the auto industry for improper disposal of old tires, the first-term Republican said.

But Kasich’s actions in this matter speak louder than his words. Sure, he claims that we can’t blame the dirty energy industry, but in the same breath he announces that he’s halting fracking activities in the area until further review. These aren’t the actions of a man who believes that the two events aren’t related.

Kasich has been a long-time supporter of fracking, claiming in January of last year that he would be pushing for more hydraulic fracturing in Ohio because he thinks it will create jobs, and that it would be a “great opportunity” for the state. And just 2 months ago, Kasich announced that he would be opening up federal lands in Ohio to natural gas companies to drill. His proposal included allowing fracking to take place in the state’s national parks, something that 70% of his constituents opposed. The United States Forest Service stepped in an removed 3,000 acres of public land from Kasich’s proposal.

As is always the case, you have to follow the money on Kasich’s fracking push. Kasich has received more than $150,000 from the oil and gas industries, as well as an additional $489,000 from the energy industry (not oil and gas-related companies.) Truth-Out provides the following analysis of the gas industry's lobbying efforts in Ohio over the years:

The fracking industry, on the other hand, has spent $747 million dollars in the past decade to lobby Congress and support politicians in states like Ohio, Michigan and New York as part of a campaign to keep fracking unregulated, according to a recent Common Cause report.

Common Cause reports that fracking companies spent $2.8 million in political contributions to Ohio parties and candidates since 2001. Republican Gov. John Kasich tops the list and has received $213,519 in campaign contributions from the industry.

Additional analysis of campaign records by Truthout reveals that wealthy executives of companies connected to the natural gas industry, including billionaires William "Bill" Koch and David Koch of Koch brothers fame, funneled an additional $127,268 in personal donations through a political action committee (PAC) to support Kasich's election in 2010.

Kasich is not the only Ohio politician who has enjoyed support from the industry. Former Democratic governor Ted Strickland received $87,450 since 2001. The state-level Republican campaign committees for the Ohio House and Senate have received a combined total of $210,250. Ohio Secretary of State Jon Husted received $84,750.

Truthout found that wealthy businessmen connected to the natural gas industry donated thousands of dollars to a PAC organized by the Republican Governors Association (RGA) in 2010. The PAC used a majority of the money to pay for attack ads against former governor Strickland, whom Kasich defeated in 2010.
 

There’s big money for Kasich if he allows the dirty energy industry to frack the state into oblivion, but for now, the governor has made the right call. The likelihood of the fracking moratorium to last is small, but the earthquakes being felt are growing larger and more needs to be done to prevent the threat of property damage and risks to public health.

December 09 2011

18:24

Fracking Ohio's Utica Shale to "Boost Local Economy"? A "Total" Sham

It is a well-known fact that the unconventional gas industry is involved in an inherently toxic business, particularly through hydraulic fracturing ("fracking"), which the EPA just confirmed has contaminated groundwater in Wyoming. The documentary film "Gasland," DeSmogBlog's report "Fracking the Future: How Unconventional Gas Threatens our Water, Health, and Climate," and numerous other investigations, reports, and scientific studies have echoed the myriad problems with unconventional oil and gas around the globe.

What is less well-known, but arguably equally as important, is who exactly stands to benefit economically from the destruction of our land, air, and water in the gas industry's rush to profit from the fracking bonanza. The U.S oil and gas industry would have us believe that they are principally focused on ushering in American energy independence. But their claims are increasingly suspect as the real motivation of this industry becomes clearer by the day.

A hint: it's not the small "mom and pop," independent gas companies, but multinational oil and gas corporations. Another hint: it's often not even American multinational oil and gas corporations, but rather, foreign-based multinational oil and gas corporations who stand to gain the most.

France's Total S.A. Enters Ohio's Utica Shale, as well as Uganda, South Sudan and Kenya

On December 7, Bloomberg's Businessweek reported that Total S.A. is positioning itself to acquire 25 percent of Chesapeake Energy’s stake in Ohio's Utica Shale, valued at $2.14 Billion

Total S.A., the largest oil and gas producer in France, is a multinational corporation perhaps most notorious for its involvement in Iraq's "Oil-For-Food" scandal. In 2010, Total S.A. was accused of bribing former Iraqi dictator Saddam Hussein's officials to secure oil supplies. 


Total SA also brokered another big deal on December 7, this one in Uganda, a place I recently wrote about on AlterNet in a piece titled, "Did Obama Just Kick Off Another Oil War — This Time in Africa?" It appears the question raised and answered in my article is being confirmed more and more with each passing day.

Explaining the terms of the deal, Reuters wrote, "French oil major Total said it could build a pipeline from South Sudan to Uganda that would continue to Kenya’s coast, potentially solving the fledgling state’s headache about how to export its oil."

These announcements comes on the heels of a December 1 announcement by another foreign corporation, Norway's Statoil, stating that it "would like to add to its acreage position in the Eagle Ford Shale in South Texas as it looks to grow its unconventional oil and gas position in North America."

Speaking of corruption, by the way, Ohio is a natural landing spot for Total S.A.

Ohio: Home to Big Gas Money

Common Cause of Ohio, in a recent report titled "Deep Drilling, Deep Pockets," revealed that from 2001 through June 2011, Republican Governor John Kasich received $213,519 in campaign contributions from the gas industry. The Republican Senatorial and House Campaign Committees took another $210,250 from the gas industry during that same time period.

Not to be outdone, on the other side of the aisle, former Democratic Governor of Ohio, Ted Strickland, received $87,450 during that time frame. 

Top donors included the following:

  • Ohio Oil & Gas Producers Fund - $820,285
  • British Petroleum PAC & Employees - $215,438
  • Marathon Oil PAC & Employees - $207,054

Summing things up, Common Cause wrote,

Companies engaged in fracking contributed $2.8 million to state candidates, political committees, and parties in Ohio from 2001 through June 2011, helping the natural gas industry preserve what are some of the nation’s most lenient fracking regulations. Ohio does not require full disclosure of chemicals used in the fracking process, has stripped from local governments the power to regulate fracking, and allows fracking as close as 100 feet to a residence.

All in all, this is a bad deal for the people of Ohio, but a great deal for global multinational oil corporations, a pattern all too familiar in the American political fray.

Any way one slices it, the claim that the gas industry first and foremost is a "good neighbor" who will "benefit the local economies," is a total sham. 

 

October 20 2011

21:00

On Our Radar: Massachusetts Leads Efficiency Rankings

A group says its new report card shows that many states are taking energy efficiency seriously despite a weak economy and budget constraints. Massachusetts ranked first.

October 19 2011

13:54

February 22 2011

20:23

December 09 2010

15:23

Save High-Speed Rail, Departing Ohio Governor Urges

Gov. Ted Strickland warns his successor that canceling construction of a high-speed passenger rail network could jeopardize jobs and cause Ohio to forfeit stimulus funds.

August 18 2010

15:37

August 12 2010

20:33

June 07 2010

20:24

An Old Nuclear Problem Creeps Back

A nuclear reactor where a hidden leak caused near-catastrophic corrosion in 2002 has experienced a second bout of the same problem.
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