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Fracking for natural gas in Pennsylvania is alive and well, even with slumping prices.  Thanks to Democrat Justices Todd, McCaffery and Baer we are no longer burdened with important portions of a state law that attempted to preempt most local, municipal regulation of oil and gas exploration and exploitation in PA.

The 162 page decision is a thing of beauty on many levels.  First, it doesn't really question the potential for environmental and human health damage associated with oil and gas operations.  While the decision cites testimony about the dangers posed by these activities from the Delaware River Basin Commission, and cites the testimony of some affected property owners, the fact of these perils is largely left as a gimme (as in, "duh").  

Second, the Justices used a little known amendment to the Commonwealth Constitution called the Environmental Rights Amendment to overturn a variety of components to Act 13 (the first major amendment to the Pennsylvania Oil and Gas Act in nearly three decades).   Act 13 lays out who gets what money from the tax on gas extraction, and tries to prohibit local municipalities from applying their own zoning ordinances on a local level.

This Commonwealth Constitutional Environmental Rights Amendment, enacted in 1971 and ratified by a four to one margin by Pennsylvania voters, pledges:

"The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.  Pennsylvania's public natural resources are the common property of all the people, including generations yet to come.  As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people."
This Environmental Rights Amendment is unique to PA, and has been used in the past to justify laws intended to protect the environment.  It has never before been used as a push-back against an unwillingness to prevent the abuse of the environment by the General Assembly and the Governor.  YEAH!

The Decision, dated December 19, 2013, contains an extraordinary telling of Pennsylvania's horrifying environmental past.  From discussion of the decimation of our precious forests by uncontrolled early logging, to discussion of how our streams and terrain have been ravaged by the coal and steel industries, the Decision was obviously written by Justices with a deep and abiding respect for our precious environment, our flora, our fauna, our water resources and our clean air.  The Justices note that while our forests are back, they lack their original diversities and while our streams have improved, we still have something like $5 billion worth of acid mine contamination to remediate.

The Decision is not all that I was hoping for, and leaves Act 13 largely intact.  It sends some issues back to the Commonwealth Court and leaves others open to interpretation.  But bless Justices Todd, McCaffery and Baer for so strongly and explicitly reminding the General Assembly and the Governor of their Constitutional responsibilities to protect the environment and their obligations to all of us here in PA.

Originally posted to santas on Thu Dec 26, 2013 at 12:25 PM PST.

Also republished by Philly Kos.

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