After Drilling Ban, Legality Still a Question in Forest Hills

Last month, joined a growing list of Pennsylvania municipalities to . But while activists call the measure a win for the community, questions about whether the ban would withstand legal challenges still loom.

Local concern over the hazards of hydraulic fracturing—a process by which drillers inject a mixture of water, sand and chemicals through a well at high pressure to fracture shale rock and extract natural gas—has escalated over the past few years. Following Pittsburgh’s ban on drilling last November, communities such as Baldwin, West Homestead and Wilkinsburg have adopted similar legislation.

The Forest Hills ordinance, officially titled “Forest Hills Borough’s Community Rights and Protection from Natural Gas Exploitation Ordinance,” states that the ban was enacted because “extraction or exploration (of natural gas) violates the civil rights of Forest Hills residents, and because it threatens the health, safety, and welfare of residents, natural communities and neighborhoods of Forest Hills."

The ordinance lists four rights it sees being jeopardized by gas drilling—right to water, rights of natural communities, right to a sustainable energy future and right to self government.

On the surface, the ordinance seems to run afoul of Pennsylvania’s Oil and Gas Act, which states that “all local ordinances and enactments purporting to regulate oil and gas well operations regulated by this act are hereby superseded ... The Commonwealth, by this enactment, hereby preempts and supersedes the regulation of oil and gas wells as herein defined.”

For his part, Council President Frank Porco said he wasn’t aware of the Oil and Gas Act leading up to the passing of the ban. As of deadline, Porco had reviewed the law briefly but declined to comment on it yet.

But according to Ben Price, who serves as projects director at the Community Environmental Legal Defense Fund and helped draft Forest Hills’ ban, ordinances such as the one adopted in Forest Hills don’t violate the act because they don’t regulate industry; they assert a community’s right to protect its citizens from perceived harm.

“Our communities in Pennsylvania don’t have a fracking problem; they have a democracy problem,” Price said.

“Here is the question: Which is the higher law—inalienable rights or the oil and gas law?” he said. “Local officials are to protect the health, safety and welfare of the community.”

Price said CELDF has worked with Pittsburgh, Baldwin, West Homestead and Wilkinsburg—none of whose bans have been overturned. Pittsburgh’s ban being the longest standing, the others were modeled after it.

For all of the debate across the state and nation, Forest Hills residents have been receptive to the measure, Porco said.

“This has probably been one of the biggest hot-button items of the year,” he said. “But I’ve not heard one person come up and speak against it.”

Still, concerns about the ordinance’s legality linger.

Speaking just moments , Porco said he was interested in researching whether additional zoning ordinances could strengthen the ban.

Last week, he was still mulling over the question.

“It’s more of an educated guess on my part,” Porco said. “When you tighten down zoning ordinances, it makes it harder to challenge.”

Price said he doesn’t see how additional zoning ordinances could strengthen a complete ban—unless the ban itself were overturned.

“[But] I’ll give him credit for wanting to make sure the community continues to be protected,” Price said of Porco’s efforts.

Porco stressed that council is completely committed to the ban and will do whatever is necessary to keep drillers out.

“At the end of the day, it comes down to the fact that you need an ordinance to stand up in court," he said.

State of Emergency?

The way Mayor sees it, there was no imminent threat of drilling in Forest Hills.

O’Malley said he hadn’t heard of an instance where drillers expressed interest in coming into the community—a small, residential one that doesn’t contain large areas of open land.

Fracking is dangerous, O’Malley believes. But essentially, he said, the ban is more a show of solidarity with communities who feel threatened by drilling than it is a fast-needed firewall. 

“We’re doing it more to make a statement than because we are worried about drilling companies coming into Forest Hills,” O’Malley said.

But a common sentiment among local officials is that the gas industry’s interests may change years down the road, after larger gas reserves have been tapped. 

And among environmentalist activists like , who lobbied for the ban, there’s little trust in Gov. Tom Corbett's administration to ensure that drilling is safe.

“With the people we have in Harrisburg ... that’s not a place where you’re likely to get any kind of movement,” Donohoe said. “People are frustrated with legislators who legalize things that do harm to the community.”

Donohoe sees state government as being too closely aligned with the gas industry, which maintains that there is no evidence of environmental harm resulting from drilling. 

“When it has radioactive and toxic chemicals in it—it doesn’t take a rocket scientist to figure out that’s not good,” Donohoe said. “The rights of people in a community are above the rights of corporations who harm people in the process of making money."

That’s a sentiment CELDF’s Price shares, though he doesn’t necessarily see CELDF as an environmental advocate. Instead, he said, the group is a supporter of local governments’ right to self-govern—which he said would be the central issue in any legal challenge of a drilling ban.

While conditional use ordinances that aim to regulate where and how companies drill seem to some communities like a wiser, more conciliatory strategy, most have come under legal challenges, Price said. Cecil and South Fayette townships, for instance, have both been sued by Range Resources for their conditional use ordinances.

Price said laws based on community rights are stronger because they hold that residents’ constitutional rights would be violated by drilling. Ceding complete authority over gas drilling to the state—which he, too, sees as industry-biased—would amount to throwing one’s hands up when faced with corporate pressure.

But in the end, Price said, no one can be certain of the local drilling bans’ legality until a court rules on a challenge.

“I can’t guarantee what a court would say,” Price said. “But should they say that corporations have the right to come in and profit while harming residents, the courts will be wrong.”

Invoking the legalized injustice of times past, such as the Jim Crow era, Price said the strongest defense of drilling bans may be the will of the people.

“We’re sitting down at the counter and demanding to be served,” Price said. “The only way unjust laws get changed is when people challenge them.”