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August 20 2012

11:21

Sweaty Lessons in the 'True' Cost of Construction

Toiling with volunteers on the foundation of a straw bale house, the author absorbs a whole new environmental calculus.

July 30 2012

12:10

From the Ground Up: An Adventure Begins

A couple quits the city to volunteer for green construction work in Utah, with the ultimate goal of building their own home in rural New York State.

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

December 15 2011

20:54

On Our Radar: Superfund Cleanups in N.Y.

Corporations had argued that state regulations require them only to address significant environmental threats, not do a complete cleanup.

October 25 2011

15:54

June 14 2011

00:49

Interior Dept Okays Thousands Of New Unconventional Gas Wells In Utah

Last week, Interior Secretary Ken Salazar announced that his department and the Environmental Protection Agency (EPA) are fast-tracking unconventional gas drilling permits in Utah’s Uintah Basin. The federal agencies will approve up to 3,675 new wells for the Greater Natural Buttes Area Gas Development Project, first proposed in 2006 by Kerr-McGee Oil & Gas Onshore LP, a subsidiary of Anadarko Petroleum Corporation.

The Greater Natural Buttes project was delayed for many years in part because it will emit large quantities of hazardous air pollution. In fact, the Bureau of Land Management (BLM) issued a draft environmental impact statement discussing how oil and gas wells in the Uintah Basin region are the primary cause of ozone pollution, which exceeded acceptable levels for 23 days during January and February 2011, including five “very unhealthy” days.

The Interior Secretary is hailing unconventional gas as “clean” despite the fact that the EPA and a recent Cornell study suggest that unconventional gas drilling releases huge amounts of climate-altering pollution. Now it appears that air pollution will no longer hold up gas development with the inclusion of an air quality supplement helping to speed up the project’s draft environmental impact statement.

Salazar described the agreement between the federal agencies and drillers as representing a “sea change” for streamlining air and environmental monitoring, and for approving (future) fossil fuel projects.

Of the sea change, he stated:


“I am encouraged that the BLM, EPA, and the company found a collaborative path forward that would put sensible air pollution control technologies to work as the field is explored and developed. We are going to work to institutionalize this type of collaboration between the BLM and EPA to ensure that future proposals receive prompt and thorough reviews and are not delayed by unnecessary bureaucracy.”


The Salazar announcement follows on the heels of a memo [pdf] he sent earlier this month to BLM Director Bob Abbey. The order stressed not to designate certain lands with wilderness characteristics as "Wild Lands."
 
By not placing lands off-limits for oil and gas drilling, and with federal agencies now geared towards quickly approving projects, oil and gas drillers stand poised to drill whenever and wherever they wish, with inadequate scrutiny into the climate and health impacts of their actions.

According to the Environmental Working Group (EWG), oil and gas companies have used waivers under the Safe Drinking Water Act, Clean Water Act and Clean Air Act to inject toxic chemicals into some 120,000 wells drilled in the Western U.S. since 2000, mainly for unconventional gas, and around 270,000 wells since 1980.

The health, air and water pollution risks tied to unconventional gas drilling, and in particular the much-maligned and destructive hydraulic fracturing (a.k.a. fracking) method, are increasingly well-known. Just last month, a former Bush-era EPA official publicly stated (again) that the safety of unconventional gas fracking was exaggerated.

To respond to the specific dangers to groundwater from fracking for unconventional gas, the EPA is in the midst of an initial assessment of the drilling process.

The study, however, is not due out until late 2012 (with the final report expected in 2014), offering little solace for public concern around gas fracking.

The Utah gas drilling approvals arose from the increased pressure Republicans are putting on the Obama Administration to cut funding for Wild Lands preservation.

Due to the politically-motivated rejection of scientific concerns on fracking, the Obama administration seems ready to roll over on its land conservation pledges. Former Clinton-era Interior Secretary Bruce Babbitt recently called on the President to assert himself against those politicians who have “…simply declared war on our land, water and natural resources.”

Babbitt added that:


“It is imperative that President Obama take up the mantle of land and water conservation — something that he has not yet done in a significant way…”

“We’re three years into this administration and we haven’t heard a strong conservation voice…”

“This silence is going to yield some very bitter fruit if it continues.”


The President’s disappointing stance on protecting land is echoed in his recent pro-drilling slant. In May, Obama named a panel to study the fracking process and to make recommendations within six months. As EWG has pointed out, the panel is dominated by representatives from the oil and gas industry.

EWG Senior Counsel Dusty Horwitt described the panel and its mandate by saying:


“It looks as if the Obama Administration has already reached the conclusion that fracking is safe.”

“The new administration panel appears to be an effort to undercut the EPA’s study by assigning an elitist group of industry insiders to take a cursory look at fracking…”


Access the Department of the Interior Air Quality Supplement Notice published in the Federal Register  June 10, 2010, which is available for public review for 45 days.

June 01 2011

17:28

May 25 2011

21:46

Extricating Wilderness From Political Limbo

A group of 44 mostly Democratic members of Congress ask President Obama to invoke existing legal authority to set aside federal land as potential wilderness.

March 01 2011

20:54

Oil-Auction Fraud Trial Begins for Utah Man

The defendant called his bids for oil leases an act of civil disobedience motivated by concerns over climate change and the despoiling of public lands by industry.

February 28 2011

23:21

Tim DeChristopher Trial Commences in Salt Lake City

Today in Salt Lake City, climate activist Tim DeChristopher (aka Bidder 70) finally gets his day in court after waiting almost 2 years since his original indictment for disrupting an illegal auction of oil and gas leases that would have opened pristine public lands in Utah to drilling. The district attorney has delayed the trial as many as 6 times as the government hoped DeChristopher would succumb to a plea bargain, but DeChristopher’s legal team has stood firm in demanding a public trial by a jury of his peers so that the public might hear the truth about the original BLM auction, which was a last-minute parting gift to the oil and gas industry from outgoing President George W. Bush.

Back in December 2008, DeChristopher showed up at a controversial oil and gas auction in Utah that was offering leases to companies to drill on environmentally-sensitive public lands, including Nine Mile Canyon and Dinosaur National Monument. An economics student at the time, DeChristopher was troubled by the Bush Administration’s efforts to skirt around required environmental assessments, essentially making the auction illegal in the first place. <!--break-->

Although he originally planned to protest the auction, when DeChristopher walked into the room, he was surprised to find a greeter offering him a paddle to bid. Seizing the opportunity, he went on to buy 116 parcels of land totaling over 148,598 acres. With no intention of actually paying the more than $1.7 million price tag, the auction was shut down and DeChristopher was taken into custody by federal agents. The auction was later canceled when the Obama Administration took office and Interior Secretary Ken Salazar withdrew the leases.
 
But it isn’t the Bush administration that stands trial today for the real crime.  Instead, Tim DeChristopher is going to trial facing two felony counts that could land him 10 years in prison and $750,000 in fines.  

DeChristopher has been working with climate justice action group Peaceful Uprising in an effort to stand up to the government’s bullying:

“The federal government admitted that the auction [DeChristopher] disrupted was illegal,” states Dillon Hase, a board member of Peaceful Uprising. “As soon as Obama took office, Salazar dismissed nearly all the leases, and now they’re putting Tim on trial to scare off other people who are fed up enough with government inaction on the climate crisis to try civil disobedience.”

Indeed, the case has already been knocked down before reaching the courtroom. DeChristopher was going to use the “Necessity Defense” to claim that his actions were the lesser of two evils. However, the judge has put the kibosh on this strategy, which would have allowed DeChristopher to relay his motivations and facts about the auction’s illegality. Denying the ability to state his rationale makes it slightly harder for the jury to decide whether his actions were justified or not. Yet Judge Dee Benson decided his courtroom was not to be a battlefield for “a lengthy hearing on global warming and environmental concerns.” Not too surprising considering the raging bunch of Republicans residing in Utah that put their anti-climate stance into an official bill in 2010.

Working together, DeChristopher and Peaceful Uprising hope to ultimately put an end to the type of federal intimidation tactics he experienced, and to let a jury decide who are the real criminals. Americans have long used civil disobedience to rise up and push for justice and social change. Yet here again the government’s response has been to sue and threaten stiff jail time and fines, hoping that the populace might be scared back to complacency.

One brave young man stood up and said enough is enough.  Had it not been for Tim DeChristopher’s actions as ‘Bidder 70,’ there would likely be drilling rigs tearing up these nationally treasured lands and threatening the climate with more fossil fuel pollution.

Hundreds of supporters have held vigils for DeChristopher and are gathered around the courthouse right now, hoping that the jury recognizes DeChristopher’s heroic act as anything but a crime.  The trial is expected to last through Wednesday. Stay tuned for more trial coverage and reports from the rallies.

January 18 2011

20:31

Tiny Flower Saved from Extinction

In 1985, only seven known Maguire daisy plants were still living; today, biologists estimate that there are 163,000 in southeastern Utah.

December 16 2010

21:42

December 15 2010

13:50

Imagining a Renewable Utah

A report proposes a system based nearly entirely on solar, wind and geothermal power and the mass deployment of compressed-air energy storage and a smart grid that takes control of customers' appliances.

September 14 2010

18:43

Of Mussels, Repo Men and the Law

Boaters who spread pipe-clogging, pump-destroying shellfish can be found on the "Wanted" posters of law enforcement agencies around the West.

August 12 2010

20:33
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