Peters Township

On November 23, 2010 Ellen Mavrich contacted CELDF asking for advice about adopting a community rights ordinance similar to the one enacted by Pittsburgh City Council, in consultation with CELDF, on November 16th.  She and a group of residents of Peters Township in Washington County, Pennsylvania were convinced that a zoning ordinance being considered by their municipality would not protect the community. They wanted to ban fracking altogether rather than surrender parts of the township to the gas drillers under a zoning scheme.

A hearing on the township’s proposed zoning ordinance was set for December 7th and the group prepared arguments to set it aside in favor of a local ban. The hearing was held at the middle school auditorium and over two-hundred residents attended, with dozens standing to offer comments. The Council gave a cool reception to the ban idea, indicating they would not introduce legislation modeled on Pittsburgh’s.  One resident put it this way: “Since our current council is actively involved in trying to lease about 600 acres of our public land, these pleas for an all out ban probably fell on a majority of deaf ears.”

The folks organizing for the ban were not surprised, and they weren’t finished either. They soon created a local association called Peters Township Marcellus Shale Awareness (PTMSA). Their home rule charter guaranteed community members a right to propose local legislation through an initiative process, and state law defined the steps they needed to take to amend their charter. They decided to place the Community Bill of Rights directly into the charter, along with the gas drilling ban. So they got busy circulating petitions and on August 9th 2011 submitted nearly 2500 signatures to the Washington County Board of Elections to place the proposed charter amendment on the November 8, 2011 ballot.

They did not know to what lengths their local officials would go to stop a ban on fracking from being adopted by their constituents.

On September 12th the Council introduced a motion to file a request with the Court of Common Pleas for an injunction that would forbid the County Board of Elections from posting the ballot measure. Despite extensive testimony from the community, with citizens insisting the Council must allow the people to decide, a headline on the PTMSA web site sums up the official response: “Peters Township Council Strikes a Blow against Democracy.” It was a unanimous vote.

 The Council filed the injunction request, with Solicitor Bill Johnson claiming that the proposed amendment would place the Township in legal jeopardy on multiple fronts because, he argued, it violates the Township Charter, that it is preempted by the state’s Oil & Gas Act and Municipalities Planning Code, and that it is unconstitutional because it would strip corporations that violate the prohibition against gas drilling of “corporate rights.”

Mr. Johnson is also Solicitor for Mount Pleasant Township and helped draft their conditional use zoning ordinance, which drew a prompt lawsuit from Range Resources, LLC earlier in 2011. That ordinance appears to have been legal under the state’s Oil & Gas Act and Municipalities Planning Code and constitutional as well, notwithstanding the negotiated concessions recently granted to the corporation.

Residents have argued that at least two Council members have a conflict of interest and should have recused themselves from votes dealing with gas extraction but did not. One works for Tetra Tech, a company which conducted the first “study” of the effects of frackwater dumping in the Monongahela River. That study was funded by the industry. Another member of Council is president of Zoom Resources, a drilling wastewater treatment company which also claims to bundle gas leases.

With CELDF legal representation, PTMSA filed a request with the court for Intervenor status and received it, but only after a protracted effort to navigate the court’s arcane rules, which required even routine filings be done by an attorney and in front of the judge.

The granting of Intervenor status opened the way for the citizens to argue against the suit brought by their local representatives against the County Board of Elections to block their participation in municipal governance. The CELDF filing asserted that the court has no jurisdiction and cannot stop the Board of Elections from placing a charter amendment proposal on the ballot. The legal brief making the people’s case argued that home rule charters have the status of state legislative enactments and it would be improper for the court to violate the separation of powers between the judicial and legislative branches of government by blocking the people from acting in their legislative capacity and engaging in direct democratic law-making. In addition, the brief argued that the Township Council lacked standing since the measure imposed no immediate harm upon Peters Township and could not, since it had not yet been adopted as law.

On October 3rd, Judge Paul Pozonsky agreed with the people and against their erstwhile representatives, ruling that the court lacks jurisdiction to impose an injunction against the petitioned home rule charter amendment proposal. He ruled further that allowing the voters to approve or deny the adoption of the amendment did not create an immediate harm to the township.  Score one for the home team, right? Almost. The Township Council worked behind the scenes to influence the County Board of Elections to word the ballot question (which is in their authority) to draw conclusions of law Council was not able to argue in court. The question, as well as the plain English summary of the proposed amendment produced by the County Board of Elections read like arguments against adopting the amendment.

In addition, right up through election day, glossy flyers were sent to residents urging them to vote against the referendum—funded by Consumer Energy Alliance in Houston, Texas.  The referendum was soundly defeated, with approximately 5,200 township residents voting against and 1,100 for the ban.

The charter amendment would have established a local Bill of Rights recognizing the fundamental right to water, to local self-government, the rights of eco-systems to exist and flourish, and it would have prohibited the extraction of natural gas or the transport, storage or disposal of drilling waste water within Peters Township, among other provisions.