About Whale of a Time

Whale of a Time is riding the wave of change, promoting successful stewardship of our planet to create a peaceful, morally just, humane and sustainable culture, while ensuring survival of all species and their natural habitats. Whale of a Time organises creative and fun, inspiring and empowering events on environmental issues to encourage active participation living a sustainable lifestyle inspired by a positive attitude. We engage young and old from all walks of life through the Whale of a Time Community, the Whale of a Time Festival and the Whale of a Time Workshop. Our work has been recognised by many national and community and environmental awards schemes.

Whale of a Time Tweats

Sunday, 25 March 2012

UN HR Council solidifies the connection between the environment and human rights

The UN HR Council solidifies the connection between the environment and human rights suggesting that activities like climate changing CO2 emissions are a violation of human rights.

The present report is submitted in accordance with resolution 16/11 of the Human Rights Council. This analytical study examines the key components of the relationship between human rights and the environment, with emphasis on the following themes: the conceptual relationship between human rights and the environment; environmental threats to human rights; mutual reinforcement of environmental and human rights protection; and extraterritorial dimensions of human rights and the environment.

Please read the report here.

Saturday, 24 March 2012

From the forest to the ocean: how protected areas can positively impact species conservation. - Earthwatch

Addressing the challenge of conserving endangered species through the enforcement of protected areas, Professor Luke Dollar and Professor John Cigliano shared the impacts of their work in Madagascar and Belize respectively.

Describing Madagascar as an ‘evolutionary petri-dish’, Dollar spoke of the rapid decline of many of the unique species that are endemic to the country. Protected areas, he argued, are essential not only to sustain threatened habitats, but also human populations that depend on the natural resources that Madagascar’s forests provide.

The focus of Dollar’s research is the little-known fosa - Madagascar’s only natural mammalian apex predator, endemic to the island. Dollar drew on over a decade of data collected by over 300 Earthwatch volunteers. He observed “It is not necessarily the protected areas in themselves that make a difference to the conservation of endangered species, but rather the increased level of human presence in those protected areas that discourage activities such as illegal logging.”

“The simple presence of the many teams of Earthwatch volunteers that work with us in the National Park serves as a deterrent”, continued Dollar.

An interview with Earthwatch scientist, Professor Luke Dollar

Professor John Cigliano’s research by contrast focuses on the marine environment. The urgency of his work was illustrated with a stark warning that close to 80% of the world’s fisheries that have been assessed, are at or close to their maximum sustainable limits or past those limits, with some already collapsed or economically extinct.

Alongside Earthwatch volunteers, Cigliano has spent five years monitoring populations of the queen conch in Belize’s Sapodilla Cayes Marine Reserve. The queen conch is a species of marine mollusc, of great importance within the marine ecosystem, but also economically and culturally to the Belizean people.

“My project was set up in response to the needs and inputs of the local community”, explains Cigliano. “We are fortunate to be able to draw on several years of data about the status of populations before the marine protected area was enforced. We are now beginning to contrast those findings with similar recordings post-enforcement. We need a few more years’ data to be able to draw solid conclusions, but preliminary analysis suggests that the protected area is indeed making a positive difference to density and average age of conch both within the reserve as well as in the fisheries outside as the recovering populations migrate outwards.”

Over the course of the evening, both speakers addressed many of the greatest environmental challenges we face today. In spite of this, the audience left with a sense of optimism on hearing about the significant positive impacts that these two projects are having not only on wildlife and habitats, but also in providing economic and educational opportunities to local populations to sustain the conservation efforts into the future.

Professor John Cigliano speaks about monitoring queen conch in Belize

Thursday, 22 March 2012

The law of Ecocide

The moral imperative trumps the economic imperative; putting people and planet before profit is our number one duty. We’ve done it before and each time business went onto flourish. We abolished slavery, we outlawed apartheid, we prohibited genocide. The next step is to eradicate ecocide.
Download Government Concept Paper, Closing the Door to Dangerous Activity, here
Download 1 page summary of Concept Paper here
The humanitarian crisis of the Second World War required the word ‘genocide’ to describe the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group. So it is in 2010, the International Year of Biodiversity, that the current environmental crisis called for a new language to describe the extensive damage to and loss of ecosystems of a given territory, whether by human agency or by other causes. That word is ecocide. In April 2010 Polly submitted to the United Nations Law Commission a fully worked proposal for the law of Ecocide. The full submission is set out in Chapters 5 and 6 of her book, Eradicating Ecocide: laws and governance to prevent the destruction of our planet. Below is some of the proposal.
“There are certain principles of universal validity and application that apply to civilization as a whole. They are the principles that underpin the prohibition of certain behaviour, for example apartheid and genocide. Such abuses arose out of value systems based on a lack of regard for fellow humanity and are now universally outlawed. The rendering of such action as illegal is premised on the advancement of a higher morality that operates without caveat of qualification, a morality based on the sacredness of human life. In a world aspiring to sacredness of life, it is still necessary to identify the crimes to prevent those who fail to live by similar values. But what of the well-being ofall life – not just that of humanity – but of all who inhabit a territory over which one has certain responsibilities?
It was the humanitarian crisis of the Second World War which prompted the creation of the United Nations Organisation whose stated aims are to facilitate cooperation in international law, international security, economic development, social progress, human rights, and the achieving of world peace. The Charter of the United Nations (UN Charter) declared in 1945:
“We the peoples of the United Nations, determined to save succeeding generations from the scourge of war…to promote social progress and better standards of life in greater freedom”.
In advancement of peace, the term genocide was soon given international legal recognition to describe the enormous deliberate destruction of human life, such as the holocaust of World War 2. Trials were held in Nuremberg to prosecute perpetrators. However, it took over 50 years for the creation of the International Criminal Court (ICC) to provide a permanent international enforcement tribunal, as set down by the provisions in the Rome Statute and ratified in 2002. Jurisdiction is limited to prosecution of individuals of the four“most serious crimes of concern to the international community as a whole”, more commonly known as the 4 Crimes Against Peace. They are: Genocide, Crimes Against Humanity, War Crimes, and Crimes of Aggression. Now another type of international crime against peace has arisen; that crime is Ecocide.
The Crime of Ecocide
The neologism ecocide is already in use to a limited extent, denoting large-scale destruction, in whole or in part, of ecosystems within a given territory. Ecocide is in essence the very antithesis of life. It can be the outcome of external factors, of a force majeure or an ‘act of God’ such as flooding or an earthquake. It can also be the result of human intervention. Economic activity, particularly when connected to natural resources, can be a driver of conflict. By it’s very nature, ecocide leads to resource depletion, and where there is escalation of resource depletion, war comes chasing close behind. The capacity of ecocide to be trans-boundary and multi-jurisdictional necessitates legislation of international scope. Where such destruction arises out of the actions of mankind, ecocide can be regarded as a crime against peace; a crime against peace for all those who reside therein. In the event that ecocide is left to flourish, the 21st Century will become a century of ‘resource’ wars.
For the purpose of international law, I propose the following definition for ecocide:
the extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.
There are two categories of ecocide: non-ascertainable and ascertainable ecocide. Non-ascertainable ecocide describes the consequence, or potential consequence, where there is destruction, damage or loss to the territory per se, but without specific identification of cause as being that which has been created by specific human activity.
Ascertainable ecocide describes the consequence, or potential consequence, where there is destruction, damage or loss to the territory, and liability of the legal person(s) can be determined. The destruction of large areas of the environment and ecosystems can be caused directly or indirectly by various activities, such as nuclear testing, exploitation of resources, extractive practices, dumping of harmful chemicals, use of defoliants, emission of pollutants or war. Examples of ascertainable ecocide territories of sizeable note include the deforestation of the Amazonian rainforest, the proposed expansion of the Athabasca Oil Sands in northeastern Alberta, Canada and polluted waters, which account for the death of more people than all forms of violence including war.
In any given example of ecocide, the extent of “destruction, damage or loss” suffered requires analysis. Whereas “destruction” and “loss” are easy to ascertain by way of data, what constitutes “damage” for the purpose of establishing the crime of ecocide is more complex. Size, duration and significance of impact of damage to a territory in most instances shall be of relevance to determine whether the crime is made out. The Rome Statute sets out an extended definition of damage to the environment, specifically as a consequence of War Crimes, which provides useful assistance. Article 8(2)(b)(iv) criminalises:
“widespread long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”
Change one word here: “widespread long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall community advantage anticipated”, and incidents of ecocide such as the BP Gulf oil spill can begin to be properly assessed.
The wording used in this section was adopted from the 1977 United Nations Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques (ENMOD). ENMOD specifies the terms “widespread”, “long-lasting” and “severe” as
“widespread”: encompassing an area on the scale of several hundred square kilometers;
“long-lasting”: lasting for a period of months, or approximately a season;
“severe”: involving serious or significant disruption or harm to human life, natural and economic resources or other assets.
These expanded definitions, which are already embedded in international laws of war, offer an existing basis upon which the international crime of ecocide can be seated at the table of the ICC. The word “ecocide” bestows the missing name and fuller comprehension of the crime of unlawful damage to a given environment. As a crime that is not restricted to the confines of war alone, the categorisation of ecocide as a crime against peace is appropriate. Thus, for the purpose of defining ecocide “damage”, determination as to whether the extent of damage to the environment is “widespread, long-term and severe” can be applied to ecocide in times of peace as well as in times of war.

Wednesday, 21 March 2012


Sign the petition here

Brazil megadam washes residents away - YouTube

With an estimated cost of at least $14 billion and a projected electrical capacity that would make it the third most powerful in the world, Brazil's Belo Monte Dam is leaving a large footprint - one that looks like it will stamp out local residents in the Amazon.

Until recently, Belo Monte faced seemingly endless court cases and popular opposition, but in June, the Brazilian environmental agency IBAMA granted Norte Energia, the owner, a license to go ahead. That means an estimated 24,000 people living in the dam's vicinity are going to be paid to leave.

Elio Alves Da Silva, a fisherman who has lived in the community for 30 years, says he will take a $12,000 buy out, despite not wanting to leave.

Al Jazeera's Gabriel Elizondo reports from the construction site.

AMAZON WATCH » Chief Raoni and the Kayapo Under Attack!

AMAZON WATCH » Chief Raoni and the Kayapo Under Attack!

AMAZON WATCH » ARTiculate Belo Monte

AMAZON WATCH » ARTiculate Belo Monte

Tuesday, 20 March 2012

Close Encounters of the Giant Kind

Brian Skerry describes the exhilaration of an up-close encounter with a curious, 45-foot-long right whale

Big Miracle Movie | Official Site for the Big Miracle Film | Now Playing

Inspired by the true story that captured the hearts of people across the world, the rescue adventure Big Miracle tells the amazing tale of a small town news reporter (John Krasinski) and a Greenpeace volunteer (Drew Barrymore) who are joined by rival world superpowers to save a family of majestic gray whales trapped by rapidly forming ice in the Arctic Circle.

Local newsman Adam Carlson (Krasinski) can't wait to escape the northern tip of Alaska for a bigger market. But just when the story of his career breaks, the world comes chasing it, too. With an oil tycoon, heads of state and hungry journalists descending upon the frigid outpost, the one who worries Adam the most is Rachel Kramer (Barrymore). Not only is she an outspoken environmentalist, she's also his ex-girlfriend.

With time running out, Rachel and Adam must rally an unlikely coalition of Inuit natives, oil companies and Russian and American military to set aside their differences and free the whales. As the world's attention turns to the top of the globe, saving these endangered animals becomes a shared cause for nations entrenched against one another and leads to a momentary thaw in the Cold War.

Monday, 19 March 2012

Plunder continues as EU fisheries ministers tinker around the edges of reform

*Brussels**/Nouadhibou (Mauritania)**, 19 March 2012 *-- European

fisheries ministers meeting in Brussels to discuss the reform of EU

fishing rules are expected to ignore the critical imbalance between the

bloated size of EU fleets and dwindling stocks, said Greenpeace.

Ministers are likely to reach an agreement on how to manage the impact

of the EU's Common Fisheries Policy on fishing in foreign waters.

The Greenpeace ship the Arctic Sunrise is currently off the coast of

West Africa, near Senegal and Mauritania, where it has been involved in

actions to highlight the destructive impact of European overfishing.

The EU fisheries Council is expected to recognise the right of fishermen

in foreign coastal nations to retain priority access to local fishing

grounds and to only allow European and other foreign vessels the option

of fishing unclaimed quotas within sustainable levels. However,

ministers will likely omit any reference to agreed international

commitments on the reduction of fleet capacity [1].

Ministers will also debate rules to prohibit the damaging practice of

discarding unwanted catches, as well as a new fisheries subsidy regime

and common market rules.

The over-exploitation of fish stocks in Europe means that some of the

world's largest fishing vessels need to venture further and deeper to

catch fish in large quantities, with devastating impacts on the

environment. Super-sized industrial factory ships increasingly compete

with local fishermen in the developing world, pushing many communities

into poverty.

*Greenpeace EU fisheries policy director Saskia Richartz*said:

/"Ministers claim they are making progress on European fisheries reform,

but they are just pussyfooting around the real problem: there are just

too many destructive boats out there and not enough fish for them to

catch. The measure of success of fisheries reform will be whether Europe

commits to cut the size of its fishing fleet to ease the pressure on the

oceans and local fishing communities."/

According to official figures, the EU catches about 1.2 million tonnes

of fish per year outside its waters -- almost one quarter of its total

catch [2]. The Commission reports that 14 EU countries have fishing

interests in foreign countries, but over two thirds of these 300 ships

fly the Spanish flag (67% of the total) and 14% are from France. While

French vessels target tropical tuna, vessels from the Netherlands,

Germany and Lithuania focus on small fish species [3].

Last week, in the space of just 10 hours, the Arctic Sunrise came across

no fewer than seven EU mega trawlers plundering the ocean's resources

off the coast of Mauritania. While patrolling the area, the Arctic

Sunrise also took action against other European and Russian ships taking

large quantities of fish.

*Greenpeace report*: /The price of plunder - How European tax-payers are

subsidising factory trawlers to strip fish from West Africa's waters


*Notes to editors:*

*[1] *The EU acknowledges that there are simply far too many powerful

and destructive vessels for the amount of fish left in the sea. As

recently as autumn 2011, the EU joined other countries in the UN General

Assembly in a pledge to /"urgently reduc[e] the capacity of the world's

fishing fleets to levels commensurate with the sustainability of fish


*[2]*European Commission external fleet study (2008)


*[3]*European Commission assessment of the CFP


Greenpeace press release

Saturday, 17 March 2012

A Success Story for Dolphins in Switzerland

Filed in Marine Biology, Policy on March 15, 2012 with no comments

Emily Tripp
Senior Writer

Switzerland has joined Norway, Luxembourg, Slovenia, and Cyprus in banning the captivity of dolphins.

Switzerland’s House of Representatives has voted to outlaw the keeping of dolphins in aquariums or for entertainment purposes. The Senate also banned the future importation of dolphins, meaning that the dolphins living in the country’s only dolphinarium, Connyland, will remain there but will not be replaced when they die.

“We’re very excited about it,” said Mark Palmer, Associate Director of the Earth Island Institute‘sInternational Marine Mammal Project, in an exclusive interview with TakePart. ”The grass roots group Ocean Care deserves a great deal of credit for working on this for many years, working with Ric [O'Barry, of The Cove] in Switzerland. We also think that Ric’s appearance last year during the Bambi Awards, which aired in Germany and Switzerland, and in which he said ‘don’t buy a ticket to these shows’ played a big part.”

In the open ocean, a wild dolphin can live up to 50 years and swim up to 100 miles a day, but dolphins in captivity are limited to and area only 1/10,000 of 1 percent of their natural environment, which greatly decreases their lifespan. Many dolphins develop depression which can even lead to suicide.

The ban in Switzerland was spurred by the death of two dolphins last fall at Connyland. There was public concern that they were killed by hallucinogens thrown into their enclosures after a two-day techno party in the park, but the autopsies proved otherwise. Both dolphins, ages eight and 30, died from brain damage due to an overdose of antibiotics.

Bonsai tree trade closing net on near-extinct Vietnamese monkey

One of world's rarest primates, the white-headed langur, numbers around 70 as increasing deforestation uproots habitat

Golden-headed langurs – their white-headed cousins are found on the Cat Ba island in north Vietnam. Photograph: Terry Whittaker/Alamy

Squelching his way along a muddy trail in one of Vietnam's most famous national parks, Vu Huu Tinh points to some pits in the forest floor. "This is where the trees used to be," he says.

We are just a few kilometres from the protected home of one of the world's rarest primates, the Cat Ba angur, or white-headed langur. Only 70 are known to survive on the island of the same name, off the coast of north Vietnam, following decades of hunting. But conservationists have warned that there is another threat: intruders taking the trees themselves.

One kind of tree is targeted in particular. The Ficus benjamica, a common sight across south-east Asia, is a kind of strangling fig popular among bonsai growers. Small trees are taken out at the root, or their stems are removed to sell to nurseries for up to $1,000, where they are potted and pruned into shape for sale. The older the plant, the more valuable it is for the bonsai industry. That, says bonsai expert Nguyen Cong Chi, is why many are taken from the forest.

Chi cares for around 700 bonsai trees at a nursery in Hanoi, and some of them are more than 150 years old. "You can tell the age of the plant by the colour and texture of the bark," he said. Some of his trees sell for up to $350,000.

Experts discourage people from using trees from national parks, said Do Phuong, chairman of the Vietnam Natural and Traditional Beauty Association.

"We ban our members from taking bonsai from protected forests, and if we discover someone doing so, we will expel them from our organisation," he said.

However, the temptation for poor farmers living near Cat Ba national park to sell the trees is great, said conservation officer Pham Van Tuyen. "It just takes a couple of hours to go into the forest and take a tree but it can take 30 to 40 years to grow one." With hunting becoming more difficult as animals grow scarcer, Tuyen said local people are plundering the trees instead.

Both Tuyen and Tinh work for the Cat Ba Langur Conservation Project, set up in 2000 by the German Zoological Society for the Conservation of Species and Populations and M√ľnster zoo. Scientists had just declared the species one of the rarest primates in the world with less than 60 individuals left. The project employs local people to protect the langur instead of hunting it and runs education programmes in surrounding communities.

Despite their hard work, continued intrusion into the park to get trees is upsetting the already fragile ecosystem and encouraging opportunists to use the forest more often, said project manager Rick Passaro.

"The island is so rich in biodiversity," he said. "Recently rangers found a species of snake never recorded on the island before. Scientists just found two new species, one bat and one gecko, but the large animals are in deep, deep trouble."

Tinh said at the rate the forest is being destroyed: "There will be nothing left in the park, not even trees."

Friday, 16 March 2012

How an Anti-Democratic, Corporate-Friendly Pennsylvania Law Has Elevated the Battle Over Fracking to a Civil Rights Fight

The upcoming legal fight over Pennsylvania's pro-fracking law, Act 13, pits the civil rights of people against the economic rights of corporations.

In a handful of communities in eastern states, local anti-fracking activists have been heartened by recent lower court decisions that have upheld local zoning ordinances and statewide moratoriumsto keep the controversial natural gas wells out of their towns.
But in Pennsylvania, the epicenter of the controversial drilling, the legislature recently stripped all local zoning authority to prevent drilling, overturning the kinds of steps that have frustrated drillers in neighboring states. As a result, a different and riskier strategy is emerging in the battle to keep drilling at bay: local ordinances and organizing elevating the civil rights of communities and nature while limiting the legal rights of corporations.
“What we are doing with our ordinances is challenging the authority of state government to license the corporations to violate rights,” said Ben Price, Community Environmental Legal Defense Fund (CELDF) project director. “The courts have never seen that argument before. There has not been a civil rights argument against industrial trumping of local authority, or against the state using licensing statutes to trump local self-governing authority to protect health, safety and welfare.”
In Pittsburgh and surrounding suburbs, State College and handful of small towns in New York and Maryland, municipal governments have explicitly asserted their right to a clean environment, to safeguard natural resources, and have stated the civil rights of people are superior to the economic rights of corporations—even if state legislatures or regulatory agencies supervise those industries, such as gas producers.
In Pennsylvania, these local ordinances are among a handful of legal and political lines of defense being drawn against a new state law that has granted extraordinary powers to gas companies and to state regulators. They are part of a strategy to recast this struggle as one that is not just about whether fracking can occur, but rather as a civil rights battle where the key issue is can a community govern itself, its natural resources, and its future.
“It’s not a gas extraction problem,” said CELDF’s Price. “It’s a rights denial problem.”
The Power of Money
The 500-mile long Marcellus Shale and two other shale deposits in Pennsylvania, West Virginia, western New York and eastern Ohio, are a Saudi Arabia-sizedresource, the U.S. Geological Survey has said. According to the gas industry, the deposits are worth billions and could not only meet one-quarter of the nation’s natural gas needs by 2020, but also generate jobs and lift impoverished local economies. Even though some financial experts have questioned those projections, Pennsylvania’s Republican-led government has embraced gas drilling as if it were a modern gold rush.
However, getting to the gas is not a simple process. The industry uses a technique called hydraulic fracturing, or fracking, in which large volumes of water with toxic chemicals is injected under great pressure into wells and lateral bores to crack the rock and free the gas. The industry has not disclosed what chemicals it uses and claims fracking is safe. But in numerous communities across the country people have seen drinking water polluted, reported earthquake-like tremors and even seen gas escape in their home plumbing.
Last month in Pennsylvania, Republican Gov. Tom Corbett and GOP majorities in both legislative chambers brushed aside skeptics and community activists to adopt what might be the most anti-democratic, anti-environmental, pro-fracking new law in the nation. Act 13 comprehensively rewrote the state’s oil and gas laws for the first time since 1984, giving unprecedented power to the gas industry, smothering local political obstacles and streamlining statewide procedures to license and operate the wells.
Fracking opponents saw the pro-drilling reforms coming, but nonetheless were stunned by how much the legislature and governor gave away to one industry.
To start, Act 13 stripped local municipalities of zoning authority to block wells and any related operation—pads, pipelines and processing plants. It imposed a new tax on wells—but only shares those revenues with towns that delete anti-drilling provisions from local zoning codes. It empowers the state’s Public Utilities Commission to invalidate zoning codes that might block drilling, and tells the PUC it must act on behalf of “aggrieved” landowners or gas companies. Similarly, Act 13 gives gas companies eminent domain power to take property for drilling operations. And it imposes confidentiality rules for physicians and health professionals who might treat anyone suffering from a drilling-related illness, and says those medical files are not public records.
Act 13 did not pass without opponents—including town officials who not only heard from concerned and well-informed residents at their meetings but also did not want to lose their zoning authority. While the state’s Republican political leaders ignored their complaints and pushed it through the legislature, that hubris has enlarged the anti-fracking opposition and added a significant new player: some local governments.
“There are places for them to go,” said Steve Karas, Forest Hills Borough Council vice-president, who said some towns welcome the wells—though not his Pittsburgh suburb. “The idea of using a bill to do a statewide ‘we will come and do this’ whether you changed your zoning ordinance or passed a moratorium. Boy, it’s not like if they just went to where people wanted them they couldn’t do just fine from a monetarily perspective. They went for the whole deal.”
“It is the corporate state,” said CELDF’s Price, whose group helped Forest Hills craft its community rights ordinance. “We have no representation at the state or federal level. That’s why we go to the locals to work. Because the only way we can illustrate what people want is to put that into law and have that challenged.”
Fighting Back
The ordinances are one component in an emerging response to Act 13, said Doug Shields, former Pittsburgh City Council president who helped shepherd that city’s community rights ordinance—the state’s first—in 2010.
There is much in Act 13 that should be challenged in court and declared unconstitutional under many established areas of law, Shields said. But the ordinances create a new legal area that has not yet come before Pennsylvania courts, he said, because they confer civil rights under the Pennsylvania constitution and prior state Supreme Court rulings. Legally speaking, that is different from the dozens of symbolic Town Meeting resolutions passed in nearby Vermont decrying corporate personhood and urging the Congress to propose a federal constitutional amendment to redress controversial U.S. Supreme Court campaign finance decisions. It is also different from the successful strategies used in New York, where lower courts have upheld local zoning ordinances to stop fracking—and the state legislature issued a moratorium to study the issue.
The question in Pennsylvania is not whether there will be litigation to challenge the constitutionality of numerous Act 13 provisions, but which provisions will first be targeted and when will the local community rights ordinances join the legal fight.
“I would expect within the next 20 to 40 days, you will probably see lawsuits filed by municipalities challenging provisions,” Shields said, saying that Act 13 has many parts that appear unconstitutional under established areas of law.
“For instance, how is it that a legislative body—be it a Congress, a statehouse, or local town council—is subject to an appointed commission? Constitutionally, that makes no sense at all,” he said. “It’s the executive, the judiciary and the legislative branches that are the prime branches, not the legislation, the PUC, the executive and the court.”
“And then it says the use by right [to drill] is in all zoning areas except residential,” Shields continued. “But if you go on to read about the residential where it is allowed, it is a conditional use. If the drilling company finds the [drilling] pad would be better served not 500 feet away, or 1,500 feet away, or whatever it is in local codes, they have a right to appeal to the PUC and it says the PUC shall grant them a variance. Your house doesn’t really have any protection despite what it says. That’s crazier than our ordinances saying that we have rights and that the federal and state government can’t take them away.”
And there are other constitutional issues, Shields said, such the unequal power granted by the state to one industry.
“How is that you convey these special rights to this single industry—not U.S. Steel, not Alcoa, not Joe’s garage, not Mary’s hair salon—just them. Even the federal government, when they build a Social Security office, cannot have a use by right to build anywhere,” he said. “The whole world has to abide by Pittsburgh’s zoning code except these guys? By conveying them special rights you denigrate the equal rights that we are all entitled to.”
Legal Strategies Taking Shape
It is not clear which legal avenue will first challenge Act 13, which takes effect on April 14. Some of the constitutional questions cited by Shields raise more "conventional" issues than limiting corporate personhood and granting civil rights to communities and nature. But courts take cases raising new issues all the time, and fracking opponents say it is inevitable that Pennsylvania’s highest courts will face questions about balancing of civil and economic rights.
Indeed, part of the reason the gas industry wanted Act 13 was because the Pennsylvania Supreme Court ruled in 2009 that towns did have zoning authority to discourage drilling, and that authority did not conflict with state oil and gas laws. That unexpected decision—because it held that local zoning was not trumped by statewide gas regulations—opened the door to community rights ordinances. A year later, as Pittsburgh’s City Council saw the rapid incursion of the natural gas industry into western Pennsylvania, it became the first of a half-dozen municipalities to respond by asserting its “right to water,” “rights of natural communities,” “right to self-government” and “people as sovereign.”
Pittsburgh’s ordinance, like the other Pennsylvania municipalities, also says that “natural gas extraction” companies “shall not have the rights of “persons” afforded by the United States and Pennsylvania Constitutions, nor shall those corporations be afforded the protections of the commerce or contact clauses within the United States Constitution or corresponding sections of the Pennsylvania Constitution.”
“Looking back, when you find that your state is in the middle of a 'game-changer' you go, ‘Hmm. How do you deal with this,” Shields recalled. “And the more I looked at it, it became evident that you really could not stop this juggernaut by way of zoning… What attracted me was it was under a whole different legal theory. It was not based in zoning law. It’s based in civil rights. And you reflect that off the constitution of Pennsylvania.”
Indeed, in 1972, Section 27 was added to Article One of Pennsylvania Constitution, and reads, “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.”
Moreover, Pennsylvania is among a handful of states where citizens can petitionthe state Supreme Court to hear a case, Shields said, even though he expects the high court to take a case based on some combination of Act 13’s constitutional excesses, the new municipal civil rights ordinances, the state constitution’s environmental provisions, and the Court’s 2009 ruling allowing drilling and local zoning.
Even with all this legal fodder, it is unclear which municipalities will be first to challenge Act 13 and on what basis. Forest Hills’ Karas said his borough council would likely join an effort if it were not too costly and led by a non-profit law firm. Efforts to recruit towns were underway, Shields said, but he added that a handful of sympathetic localities were worried about the governor or senior legislators withholding state funds if they sued.
Neither Shields nor Price expect this fight to be settled in court. What they do expect is that political fallout will build as Pennsylvanians see the negative quality of life impacts from drilling—not just checks from leasing their land and ashort-term economic boom. They also say GOP leaders will be forced to explain why they have given gas companies new economic rights at the expense of communities' and individuals' civil rights.
“I have never seen an issue that has so many facets,” Shields said. “The politicians’ talking point is this is a game-changer. My response is, ‘Okay, what is the game? What are we changing? You are the moving party. The burden falls on you to explain it.”