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When Patrick Dowd offered new legislation to govern natural-gas drilling in the Marcellus Shale at a Sept. 20 press conference, he stood alone. There were no drilling-company representatives behind him, no environmentalists anywhere. And that, if nothing else, suggests how fractious the debate over gas “fracking” has become.
City officials, Dowd told reporters, “have an obligation … to ensure the health and safety of our citizens.” But they also have a duty “to guarantee that our citizens benefit both from the jobs and wealth” created by the industry. Accordingly, he was proposing a four-bill legislative package to balance those interests.
Among other things, the legislation requires a “master planning” process in which the full impact of drilling — the location of wells and related infrastructure, truck and emergency-vehicle access — would be addressed, with community input. The legislation would require the planning zone to cover at least 40 acres, a complicated task in a densely built urban area.
But the city code already features an outright ban on drilling, passed in 2010. Isn’t establishing zoning regulations now like teaching abstinence in sex-ed … and then telling students how to use birth control?
Such ambiguity worries environmentalists. “We’re just going with the ban,” says Peter Wray, who chairs the Allegheny Group of the Sierra Club’s state chapter. “Once you start saying, ‘We need some regulation of this activity,’ it’s almost like admitting the activity is OK.”
Critics say no drill site is 100 percent safe. Drilling for shale gas involves digging mile-deep shafts, and then “hydrofracturing” by injecting water and other chemicals that break up the rock and release natural gas. Environmentalists worry that those chemicals, and methane gas, can migrate into nearby water supplies.
Under questioning by reporters, Dowd repeatedly denied that his bill necessarily spelled the end of the ban. “Nothing [in the bill] at this time says, ‘We’re putting this in place of the ban,'” Dowd said. If that sounds a bit equivocal to you, you’re not alone: “Pittsburgh council may vote to permit some drilling in the city,” one energy-industry publication reported.
Still, Dowd hasn’t exactly embraced drilling supporters either.
Mayor Luke Ravenstahl has long opposed the drilling ban, in favor of a more restrained approach. And mayoral spokeswoman Joanna Doven says, “We’re glad to see Mr. Dowd finally getting on the same page we’ve been on all this time.”
But Dowd went out of his way to blast Ravenstahl’s own position on drilling as “simple-minded” and “corrosive,” prompting Doven to respond that the most simple-minded position was in supporting the ban.
Currently, the closest thing Dowd has to a supporter is … Doug Shields, the former city councilor who authored the ban in the first place.
“Zoning isn’t going to protect anyone” from environmental impacts, Shields says. But because there has been no drilling in city limits, Shields says, “For a lot of people, extraction is an abstraction.” Focusing attention on where drilling might be allowed, Shields says, “puts the matter on the table in a real sense.”
Couldn’t zoning regulations weaken the ban’s rationale? Shields shrugs. “The ban has always been at risk,” he says.
Dowd’s zoning regulations might be at risk too. On Oct. 17, the state Supreme Court will be in Pittsburgh to hear arguments over Act 13, the state law which governs gas-drilling. Act 13 strips much of the zoning authority municipalities would otherwise have over drillers. While a lower court has rejected those provisions, industry groups have appealed: The Marcellus Shale Coalition, for one, says such uniformity is necessary “to provide certainty and predictability” to the industry. (Unsurprisingly, the coalition has called Dowd’s zoning bill “short-sighted.”)
Dowd is unfazed: “This is exactly the time for us to assert our rights,” he says — as another kind of statement about local self-determination. Ironically, though, while zoning regulations are being argued in court, the city’s outright ban has never been challenged.
“Everyone said we’d be sued,” Shields says. But the ban, he says, “has been the Rock of Gibraltar.”
This article appears in Oct 10-16, 2012.
Dear City Paper
Just to be clear.
The Community Rights Ordinance (CRO), which asserts the Community’s right to say “NO” to an inherently dangerous activity is the law here in Pittsburgh. It is our right as citizens to say “No Thanks” to FRACKING. Why would we say “NO?”
IT ISN’T SAFE
4 rigs blew up within 70 miles of the city (the closest was 12 miles away- 2 men killed) during the Council’s consideration of the CRO. There have been numerous other such calamities since then throughout the Commonwealth. Our State Parks are now being converted to industrial zones.
Air quality is clearly denigrated as a result of shale gas extraction; off gassing of VOC’s (carcinogens) diesel fumes and other material is legally permitted for us to breath. VOC’s are known carcinogens and endocrine disrupters, effecting women’s reproductive systems and children’s development.
The air quality, in the middle of nowhere in Wyoming is is now worse than Los Angeles The only plausible source of air pollution there is massive shale gas extraction operations
Attending formation of ozone lowers crop yields and is a clear danger to our respiratory health.
Water supplies are clearly contaminated as a result of the shale gas extraction process (See: EPA’s Pavilion, Wyoming EPA study).
Shale gas extraction waste stream disposal has clearly denigrated drinking water supplies by dumping untreatable return fluids into our local rivers. The industry said it was safe and just just fine until CMU’s Professor Van Briesen’s study proved otherwise (bromides – a salt- when treated with chlorine at a water treatment plant, form trihalomethane, a carcinogen directly linked to bladder cancer. The PWSA has spent over $475K this past year to deal with the problem and has had issues in meeting drinking water standards. Not only is this a public health issue, it is a cost incurred by the PWSA’s rate base.
Waste stream disposal via injection wells did cause a series of seismic events (earthquakes) in Youngstown OH and in Arkansas, England and elsewhere. What is the waste stream management plan?
Significant numbers of civil suits have been filed by property owners, due largely to water well contamination. Settlements provide for confidentiality agreements (no talking about this or you have to give the cash back) are sealed and and shielded from public view. The P-G was denied access to review such cases by a Washington County Court.
The industry admits to a well casing failure problem leading to methane gas migration into water supplies. A Well Casing is the “impermeable seal” that is supposed to protect contamination of aquifers. They have to last forever. They fail routinely. It was a bad casing that led to the disaster in the Gulf. Add to that, old, unmapped, unplugged, gas and oil wells (many drilled during the birth of this industry boom here 100 years ago) also provide pathways for methane and fracking fluid migration and attending aquifer contamination.
There is much more to be concerned about. None the less, do we have a right to protect our health welfare and safety. Yes, we do.
I disagree with Mr. Dowd’s public comments on the CRO. He claims it isn’t really quite a law. It is. It is the law in the City. The PA Supreme Court presumes all law enacted by a legislature is Constitutional. It is so until proven otherwise if challenged. It is the same judicial principal as the presumption of innocence afforded individuals in a criminal prosecution by the state.
He also stated publicly and privately to me that he would “not ever vote to repeal” the CRO.
His zoning ordinance does not have a recession clause superseding any laws in conflict with it.
The CRO/drilling ban is not impacted by his legislation. It stands and governs conduct here.
Now the industry says that we have “no intention of drilling in the city – at this at this time.”
It is not for them to decide when that time will come. It is our decision to make. We made that decision. Whatever their intentions may be (that is hard to discern. This industry has proven to be less than honest and transparent about much of anything) the city’s intentions are clear. “No Thank you.” We have a right to say that- don’t we? Or are we a mere colony of the state and to do what we are told to do. ?
What Mr. Dowd’s proposed zoning ordinance does do is clearly illustrate what Pittsburgh would look like with drilling operations along with its attending adverse impacts. Some of the questions that will need to be answered before the Planning Commission are:
Do we have a fire department equipped and trained to deal with well fires and explosions? NO.
Do we know the cost of doing so? NO.
Do we have an evacuation plan/cost for a one or two mile area? NO.
Do we understand how an incompatible use denigrates property value? YES.
Do we know there are inherent dangers associated with Fracking. YES.
Do we have a comprehensive public health impact study to look to for guidance? NO.
Do we have an Environmental Impact Study (as-built & natural) to make public policy? NO.
Mr. Dowd’s legislation will cause these and many other questions to be raised in a very public forum. It will require a very non public industry to very public about it’s position.
It will bring evidence, not talking points, the fore of this debate.
I see value in that. That process was denied to us in the State Assembly.
Let’s take testimony under oath before the planning commission; cross examination of witnesses.
I have been involved in many zoning issues. One telecom tower in a neighborhood engenders tremendous public interest and resistance. LED Billboards required expert testimony, demonstrations of the technology, studies and engendered significant public interest. That took three years to decide. This issue dwarfs all other zoning issues that have come before it.
The City is taking up the issue in a very public process; a process the Commonwealth failed so miserably at in it’s construction and passage of Act 13.
According to Act 13, (if upheld in the PA Supreme Court) Mr. Dowd’s legislation is moot. It grants the Oil & Gas Industry a “use by right” in all zoning districts in the Commonwealth and trumps any local ordinance.
Drilling, compressor stations, pipelines, frack ponds in:
Stanton Heights? YES
Frick Park. YES.
Oakland. YES.
Homewood. YES.
Brookline? Yes.
City Greenways? YES.
Sheridan? YES
Point Breeze? YES.
Every square inch of the 57 sq. miles of the city? YES.
Do you, a resident of this city, have anything to say about it? NO.
The benefit of this legislative exercise compels us as a community to deal with this issue in a very direct and very personal way. It is no longer in the abstract. It is your present reality.
One thing is clear to me. If shale gas extraction operations are permitted in our city – by way of a state act or city zoning ordinance – I find no benefit that would override our health, welfare and safety.
Douglas Shields
former member of Pittsburgh City Council
Chris: Just an editorial note.
For the record, I did not “shrug” when I said the Ban was “always at risk.”
You could not possibly know if I “shrugged” or not. You interviewed me on the phone. That was a statement of fact. Not an off-hand “shrug” as you infer the “shrug” thing.
There is alway the “risk” that a much different City Council, say 9 carbon copies of Luke Ravenstahl, could take action to repeal the Community Rights Ordinance. That “risk factor” is very low.
What I find interesting is Mayor Ravenstahl (9/10/12) told an Oil & Gas industry gathering to “call the Council to repeal the Ban.” That was reported in the Pittsburgh Business Times. Mr. Ravenstahl was unaware that a reporter was in the room to take down his remarks.
http://www.bizjournals.com/pittsburgh/blog…
The people he told that to were industry types. Well, the quote gets out there and people did call the Council (phone traffic being termed as “heavy” by some staffers meaning a lot).
They called and said “You best keep that ban in place – or else.”
They also called the Mayor’s office in some numbers and delivered the same message.
The P-G, seeing the Mayor’s quote, went to see him about it and all the sudden Luke Ravenstahl does what he really does best. He disappeared. No Comment.
I guess he was busy golfing. Or Not putting computers in BBI cars while paying Verizon for the wireless service for 40 of them for 1.5 years. Too busy not fixing a tree problem. Too busy not doing his job.
On a matter of substantial public interest and concern, you would think Luke (who obviously thinks the ban is bad) would welcome the opportunity to be featured in the P-G to expound on his views on Fracking in the City. But, he did not.
I would like to see the Mayor run for re-election on a “Let’s Drill the City” platform.
That is his campaign speech in front of a friendly crowd – in private – with people who can write him a check.
So, while everything has an element of risk, I would posit that the RISK of Luke being unelected if he publicly campaigns to remove the ban is far greater than any present risk of the ban being overturned.
Douglas Shields
Chris, I would love to hear your own take on whether or not Dowd’s zoning ordinances are in fact simply a ban by different name, but slightly more likely (most legal experts believe) to survive a challenge if one ever arises: http://is.gd/ehAmUH. I read what Dowd has said is the intent, but that may be a byproduct of his concern over legal proceedings, if you catch my drift.
After all, requiring finding no less than 30 football fields of land in the city that are far enough away from our rivers (I mean, right there!) and then mandating a rejection if ANY adverse visual, transportation, operational, health and safety, or property value impacts are discovered.
This strikes me as a mostly well-intentioned effort by Dowd to upgrade our policy — that will ultimately fail. Because so long as the ban remains on the books, that will speak to the intent of any additional layer of zoning. And the ban is going to remain on the books, because gosh darn it, Douglas Shields wrote a bill that Pittsburghers really like, and the Council feels that heat. So all this is likely to do is attract the wrath of voters to Dowd’s left, who are just chomping at the bit these days for an excuse to organize and show they can hurt somebody.
“I would love to hear your own take on whether or not Dowd’s zoning ordinances are in fact simply a ban by different name.”
>>> Two points here. First, as the story notes, the state Supreme Court is about to hear arguments on whether ANY municipality has the kind of zoning power that Dowd’s regulations rely on. So it may be premature to argue whether Dowd’s approach is likely to be a more effective prohibition than what’s already on the books. As Mr. Shields notes below, a Supreme Court ruling in favor of the drillers makes the exercise moot.
Second, even if the court upholds local zoning powers in principle, a given municipality’s zoning rules could still be challenged in their own right. Exclusionary zoning — zoning rules that act as a “ban by a different name” — has been tossed out by the courts in a variety of cases. So if the city passes zoning rules whose effect is to preclude drilling anywhere within city limits, those rules are just as subject to challenge as an explicit ban would be.
The courts have said exclusionary zoning is acceptable in some circumstances — as when a particular use has “the obvious potential of poisoning the air or the water of the area, or [other] clearly deleterious effects upon the general public.” And you can imagine locals making that very case. (Actually, you don’t HAVE to imagine it: Mr. Shields suggests the argument quite clearly below.) But that just brings us back to the rationale of the current ban, with city officials arguing that on the face of it, drilling will hurt the city, and they don’t want it around, period. Presumably, a gas driller would raise the same set of counterarguments to that mindset, no matter where it was enshrined in the city code. (And while having an explicit ban on the books might help a drilling company argue intent, removing the ban wouldn’t necessarily make a difference. If the EFFECT of the zoning rules was to improperly exclude drilling, that would be enough to toss the rules out.)
Caveat: I’m not a lawyer, and the above — while based on conversations with people who ARE lawyers and a working familiarity with some case law — is not a learned assessment of Dowd’s proposal. (We don’t know whether its effect will work out to be as exclusionary as you suggest, for one thing.) I’m just saying that, if the idea is simply to preclude drilling in city limits, I’m not sure Dowd’s proposal can get you any farther down that road than the existing ban.