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August 16 2012


July 27 2012


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

April 30 2012


Report Finds Pipeline Oversight Wanting

Current federal rules do not take into account the long-term risks and environmental impacts of new pipeline routes, a report commissioned by the National Wildlife Federation argues.

April 10 2012


A Sacred Peak With Rich Ore Deposits

Tribes in northwestern Montana hope to turn public opinion against the "hollowing out" of a spiritual site, Chicago Peak, where a copper and silver mine is planned.

January 20 2012


December 16 2011


Hunting Wolves Out West: More, Less?

Critics of wolf reductions say that state officials are allowing too many to be killed, bowing to pressure from hunters, who in turn complain that wolves have decimated elk populations.

November 23 2011


Appeals Court Keeps Yellowstone Grizzlies on Threatened List

Conservationists and their opponents have been watching the Yellowstone grizzly bear case in Montana, because it has many similarities to an earlier court battle to prevent the removing of the wolf from the endangered species list.

September 19 2011


A Summer of Humans vs. Grizzlies

No one knows the reason why humans have come into conflict with grizzlies so often this summer, but the growing bear population seems to be a big factor.

July 11 2011


July 08 2011


Musings of a Malcontent: EXXON ROCKS!

Exxon Rocks! Maybe the recent spill into the Yellowstone River was the river's fault anyway...“Musings of a Malcontent” is a weekly op-ed by GlobalWarmingisReal contributor Carlyle Coash

Yes, I am going out on a limb and making sure I REPRESENT. (Sorry – channeling the hood there for a second)

As you all likely know by this point, on Friday July 1st an Exxon pipeline running under the Yellowstone River in Montana burst, causing a huge swath of oil to float down the river. By Sunday it had sent a plume 25 miles downriver. Since there has been record flooding in the area, there have been delays in getting to the pipe or starting any kind of real clean up.


The best part of the AP news report I read showed how the numbers can be spun regarding the amount that was spilled. Pam Malek, an Exxon spokesperson, said 750 to 1,000 barrels. Other Exxon officials estimated it at 42,000 gallons.

1,000 or 42,000? I’m keeping that spokesperson around the next time I cause an environmental disaster. She can low-ball my destruction of the planet anytime. Just make sure to use the measuring system that sounds the least damaging.

A barrel is about 42 gallons, but who’s counting. Already Exxon is downplaying it, saying that the situation is not all that bad. Like we’re going to believe them. Large organizations and truth – not a great track record.There is even blame being put on the river. Yes, my friends – the Yellowstone River is the true villain in this story. I know – I could not believe it myself. In a ploy to destroy the natural environment, the river over the last several days has conspired to flood its banks. In a statement, the Yellowstone River claimed it was the sky’s fault for sending so much rain – but we know better. The water levels rose, likely “exposing” the pipe to debris, which split the pipe. In typical river fashion the Yellowstone refused to bend to criticism.

Jokes, satire, and puns – I use them all.

I imagine that the Exxon spin team is already hard at work with the “upsides” to the spill, so that by next week we will all be convinced it was a good thing this happened. A few that popped into my head:

  • More Omega 3 – The fish of the Yellowstone will benefit from the new oil enriched water of the river. It will totally boost their Omega 3 content! So for all you health conscious folks out there, make sure to stock up on genuine Yellowstone River oil fed trout this summer. GOOD EATS!
  • Watery Water – Scientists from Exxon, along with experts from the EPA, determine that the water of the Yellowstone River before the spill was too “watery”. “Too much water type substance in that water. It needed more character”, stated a lead spokesperson. “Thanks to Exxon, the river’s content is more diverse. Oil adds just the right qualities to make the river’s ecosystem really shine. Literally.” As a result, the EPA is giving Exxon a “Best Water Enrichment” award for their innovation and moxie.
  • Fireworks Display the Best Ever – Thanks to all the oil fumes in the air from the Yellowstone River spill, the fireworks this year in nearby Laurel, Montana were amazing. The fumes, which ignited when the fireworks exploded, flashed magnificently in the July sky. Although a relatively small town of 6,500 residents, Laurel hosts a huge 4th of July fireworks display. It is not uncommon for 50,000 or more area residents to attend. “It was incredible this year!” said one resident, “the flames arching across the sky were just the right touch. Thank you Exxon!”

Laugh now, but just wait.


Comments? Suggestions for articles? Let me know!

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July 04 2011


Creator of the Valdez Catastrophe, ExxonMobil, Tries to Downplay Yellowstone Spill

The ExxonMobil pipeline that runs under the Yellowstone River in Laurel, Montana ruptured late Friday night, leaking 1,000 barrels of oil into the river. ExxonMobil estimates that approximately 160,000 litres of oil seeped into the river, one of the principal tributaries of the upper Missouri River. 

The spill has forced hudreds of evacuations, and the Environmental Protection Agency (EPA) has said that only a small fraction of the spilled oil is likely to be recovered. Its unclear how far the damage will extend along the river, but fishing and farming are likely to be impacted. 

Record rainfall in the last month has caused widespread flooding, and compromised spill cleanup efforts. While residents wait impatiently for the arrival of Exxon cleanup crews (who are only now arriving on site), Exxon is engaging in image control by trying to convince people that the spill is not as bad as it seems.

An Exxon Mobil executive said shoreline damage was limited to the Yellowstone between Laurel and Billings. President Gary Pruessing said company observers had seen "very little soiling" beyond Billings, and that the oil appeared to be evaporating and dissipating into the river. Exxon claims the bulk of the damage is contained within 16 kilometres of the spill, but EPA spokeswoman Sonya Pennock confirms oil has been seen 65 kilometres away, with some reports confirming as many as 160 kilometres.

Exxon also claims that no injured wildlife has been found, which is not as of yet verified. 

Exxon's safety record on their Silvertip pipeline has already been questioned. In 2010, the U.S. Department of Transportation issued a warning letter to Exxon, citing seven safety violations along the ruptured line. Two of the related to emergency response and pipeline corrosion training.

It has also been revealed that in May, the pipeline was temporarily shut down due to concerns over the rising waters of the Yellowstone. The company decided to restart the line the following day, deciding the risk was low. More like they wanted to keep their profits soaring. 

Up to 100 emergency response workers from Exxon Mobil are expected are expected to arrive late today. 

Head over to CBS to read their coverage, and check back for more on this story.

Photograph: Matthew Brown, Associated Press

July 03 2011


Preserving Land for Northward Migration

A new report warns that as climate change unfolds, there will be a great need to free up new lands for species seeking habitat conditions that they are now used to in wildlands surrounding Glacier National Park in Montana and Canada.

June 09 2011


For Weary Antelope, a Perilous Swim

Record snow and rain this year have caused unprecedented flooding in the Missouri River, resulting in a dangerous and sometimes fatal swim for the prongback antelope during its seasonal migration. Longer-term, some experts worry that climate change could rob the antelope of its ancestral memory and ability to migrate.

March 16 2011


“14 Degrees” – a Video on Trout Unlimited’s Western Water Project

Highlighting a TU project on Wasson Creek on the Mannix Ranch in Montana, the video shows how stream restoration efforts, such as boosting flows and revegetation of streambank, can help reduce temperatures and make trout streams more healthy and resilient. In effect, these efforts help boost the “immune system” of rivers and streams and provide [...]

January 28 2011


Oil Equipment Foes Stand Down, for Now

After months of wrangling, opponents of planned shipments of massive oil equipment through rural Idaho are resigned to the fact that at least some of those shipments will go forward. But they say the fight is not over.

January 19 2011


Idaho Approves Giant Refinery Shipments

The state's transportation department said it would grant two permits to ConocoPhillips to begin moving giant loads of oil equipment along a disputed route.

December 07 2010


On Our Radar: Negotiations on Wolf Protections Fail

The Interior Department offered to allow limited hunting, but state officials in Idaho and Montana said the restrictions were too severe.

April 01 2010


In Montana, Governor Stirs Ire Over Coal

Brian Schweitzer requested that county officials express support for "coal money" in exchange for financing for local projects.
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