“It really doesn’t matter if you win or lose. It’s how — it’s putting the fight on. We don’t know what discussions and results are going to come out of this.”
City Council member Doug Shields talks about how perceptions of natural gas drilling are changing rapidly for the worse at the grass roots level. He says his proposed ordinance that would ban all drilling within the City of Pittsburgh is intended, in part, to provoke realizations of such realities among state legislators while there is still time.
Section 5.1 of his proposal would ban the drilling. I asked him about the sections appearing thereafter, abbreviated here:
5.2 Corporations engaged in drilling in the City shall not have the rights of persons.
5.3 They shall not have the authority or power to enforce state or federal preemptive law, or to overturn municipal law.
5.4 No permit, license, privilege or Charter of any state or federal agency that would violate this ordinance shall be deemed valid within the City.
“It’s pretty radical isn’t it?” he responded coyly.
“That’s the bill. What it ends up at the end, I don’t know. I don’t control that, how can I control that with, you know, nine members of Council?”
But is Shields comfortable with so much of his bill flying directly in the face of fairly well-established case law?
“It’s called: the opener. It’s the opener.
“And Councilman Dowd, his opener was — and I don’t fault Councilman Dowd at all on his legislation, not in the least, I have no criticism to offer — but his opener was, ‘Okay, we’re going to go the zoning road.'”
Shields offered an analysis of that zoning road:
“If you write zoning law — this is what the adult bookstore industry ran into with suburban communities in the early nineties — they’re legal, and as a legal use, then you have to provide for them under zoning code. But you can’t say, ‘Okay, you can come here, but, you can’t be within 1000 feet of 800 different things’, which basically is just as problematic as what I’m throwing on the table. Because [a court is] going to say, ‘Yeah, you provided for it, but you wrote the law in such a way that you really didn’t.'”
Speaking for both Councilman Dowd and himself together, he says, “We’d write something else, but the fact of the matter is, the state has preempted us on everything, and basically we’re being treated as a colony.”
To illustrate his point of political disenfranchisement, Shields cites the state Supreme Court case of Huntley & Huntley vs. Borough Council of Oakmont.
“Joe Massaro and his neighbor wanted to drill a gas well. A shallow well, I understand.”
“Oakmont has the protection of the Municipal Planning Act of the state … which asserts that there is zoning authority here at the local level, and the Supreme Court agreed with the Borough of Oakmont.”
“And Huntley & Hutley and Mr. Massaro could not drill their well. I don’t have the protections of the Municipal Planning Act as a city of the second class. I don’t even have that. I think I’m being treated differently. I think there are inherent dangers to the public in this thing.”
In addition to the host of environmental dangers we keep hearing about, Shields cited the city budget.
“What the Mayor’s office said was,” he began, having dug out a news clip, “What the Mayor is focusing on is balancing the two, noting that ‘the City is going to prepare for any possible pollution, well fires or other risks.’ Why? Because this business is inherently risky. This business just had four gas wells blow up in the last month and a half.
“Right now, we’re talking about 10% budget cuts across the board. What am I going to prepare with? I can’t even get a playground or a rec center open, and we’re talking about preparing for ‘pollution, well fires or other risks.’ And I say, well, I really don’t want to. And I don’t think the taxpayer wants to either.”
Shields hands me a couple sections of the Pennsylvania Constitution which guarantee that The People have the right “to clean air, pure water, and to the preservation of natural scenic, historic and aesthetic values of the environment,” and that all rights not specifically enumerated in the Constitution are inherent to The People.
Moreover, he cites a section pointing out that state’s natural resources are “the common property of all the People, including generations yet to come”, which he says contradicts gas industry claims about the supremacy of individual property rights.
“No state legislature can preempt that,” Shields insisted.
However, these portions of the Constitution come out of what’s called the Declaration of Rights. In another state Supreme Court case, Commonwealth of Pennsylvania vs. East Brunswick Township, the Court said pretty clearly that reference to the Declaration of Rights is inappropriate where municipal corporations are concerned. Individuals may enjoy protections under those stipulations, but not cities which purport to be acting on their behalf.
In response to that, Shields tells the story of a water treatment plant near New Castle that is under stress from shale drilling operations, and that “the treatment for Marcellus Shale water is dilution.”
“So the only treatment is, if you’ve got one bucket of water, with dirty water and bad chemicals in it, you add ten more buckets and you throw that in the river. But cumulatively, the amounts are beyond the pale.”
Another treatment is to add Chloramine — which, when performed at the Sewickley Township Water Authority, required public notice to go out warning dialysis patients and fish owners to stay away from public water.
I attempted vainly to steer the discussion back to the likely projected legal outcomes of his course of action, including practical outcomes in terms of legal expenses and what could happen next. Shields steadfastly steered it instead toward outcomes regarding the environment and public health.
“What tomorrow brings I have no idea,” he said by way of attempting to resolve the impasse, “but I know if I don’t put something into play here, then nothing will be done. Because no one’s doing anything.”
He reached that realization that fully, he recounted, when someone with which he was discussing legislative strategy said, “Doug, don’t you get it? The government is the oil and gas industry.”
Doug Shields is aware that some folks deep within politics view his crusade rather cynically, as a way to “make a big name for himself” (my words to him) in advance of elections this coming May.
“I made a big name for myself a long time ago. My support base is there. They know who I am and they know what I do. If someone wants view politics as a little cartoon in the Sunday paper, let me assure you it is not.”