[HISTORY: Adopted by the Borough Council of the Borough of Baldwin 6-21-2011 by Ord. No. 838. Amendments noted where applicable.]
The Borough Council of Baldwin finds that the commercial extraction of natural gas in Baldwin Borough violates the rights of residents and neighborhoods and poses a significant threat to their, health, safety and welfare. Moreover, widespread environmental and human health impacts have resulted from commercial gas extraction in other areas. Regulating the activity of commercial gas extraction automatically means allowing commercial gas extraction to occur within the Borough, thus violating the rights of residents and neighborhoods and endangering their health, safety and welfare by allowing the deposit of toxins into the air, soil, water, environment and the bodies of residents within our Borough.
Meaningful regulatory limitations and prohibitions concerning Marcellus Shale natural gas extraction, along with zoning and land use provisions, are barred because they conflict with certain legal powers claimed by resource extraction corporations. The Borough Council recognizes that environmental and economic sustainability cannot be achieved if the rights of municipal majorities are routinely overridden by corporate minorities claiming certain legal powers. The Borough Council also recognizes that sustainability cannot be achieved within a system of preemption which enables those corporations to use state governments to override local self-government and which restricts municipalities to only that lawmaking specifically authorized by state government.
The Borough Council believes that the protection of residents, neighborhoods and the natural environment constitutes the highest and best use of the police powers that this municipality possesses. The Borough Council also believes that local legislation that embodies the interests of the community is mandated by the doctrine of the consent of the governed and the right to local, community self-government. Thus, the Borough Council hereby adopts this chapter, which establishes a bill of rights for the residents and communities of the Borough; bans commercial extraction of Marcellus Shale natural gas within Baldwin Borough because that extraction cannot be achieved without violating the rights of residents and communities or endangering their health, safety and welfare; removes certain legal powers from gas extraction corporations operating within Baldwin Borough; and nullifies state laws, permits and other authorizations which interfere with the rights secured by this chapter.
As used in this chapter, the following terms shall have the meanings indicated:
- For purposes of this chapter, shall include any corporation, limited partnership, limited-liability partnership, business trust, or limited-liability company organized under the laws of any state of the United States or under the laws of any country, and any other business entity that possesses state-conferred limited liability attributes for its owners, directors, officers and/or managers.
- The digging or drilling of a well for the purposes of exploring for, developing or producing natural gas or other hydrocarbons, whether either the well site, or any part of the piping or well or removal process is located on or under the geographic boundaries of the Borough of Baldwin on either the surface or underground.
- NATURAL GAS
- Any gaseous substance, either combustible or noncombustible, which is produced in a natural state from the earth and which maintains a gaseous or rarified state at standard temperature or pressure conditions, and/or gaseous components or vapors occurring in or derived from petroleum or natural gas.
Rights of Baldwin residents and the natural environment:
Right to water. All residents, natural communities and ecosystems in Baldwin Borough possess a fundamental and inalienable right to sustainably access, use, consume and preserve water drawn from natural water cycles that provide water necessary to sustain life within the Borough.
Rights of natural communities. Natural communities and ecosystems, including, but not limited to, wetlands, streams, rivers, aquifers and other water systems, possess inalienable and fundamental rights to exist and flourish within Baldwin Borough. Residents of the Borough, along with the municipality, shall possess legal standing to enforce those rights on behalf of those natural communities and ecosystems.
Right to a sustainable energy future. All residents, natural communities, and ecosystems in Baldwin Borough possess a right to a sustainable energy future which includes, but is not limited to, the development, production and use of energy from renewable fuel sources.
Right to self-government. All residents of Baldwin Borough possess the fundamental and inalienable right to a form of governance where they live which recognizes that all power is inherent in the people, that all free governments are founded on the people's authority and consent, and that corporate entities and their directors and managers shall not enjoy special privileges or powers under the law which make community majorities subordinate to them.
People as sovereign. Baldwin Borough shall be the governing authority responsible to, and governed by, the residents of the Borough. Use of the "Baldwin Borough" municipal corporation by the sovereign people of the Borough to make law shall not be construed to limit or surrender the sovereign authority or immunities of the people to a municipal corporation that is subordinate to them in all respects at all times. The people at all times enjoy and retain an inalienable and indefeasible right to self-governance in the community where they reside.
Rights as self-executing. All rights delineated and secured by this chapter shall be self-executing, and these rights shall be enforceable against corporations and governmental entities.
Prohibitions necessary to secure bill of rights' protection:
It shall be unlawful for any corporation to engage in the extraction of natural gas within Baldwin Borough, with the exception of gas wells installed and operating at the time of enactment of this chapter, provided that the extraction of gas from those existing wells does not involve any practice or process not previously used for the extraction of gas from those wells.
Corporations in violation of the prohibition against natural gas extraction or seeking to engage in natural gas extraction shall not have the rights of "persons" afforded by the United States and Pennsylvania Constitutions, nor shall those corporations be afforded rights under the First or Fifth Amendments to the United States Constitution or corresponding sections of the Pennsylvania Constitution, nor shall those corporations be afforded the protections of the commerce or contracts clauses within the United States Constitution or corresponding sections of the Pennsylvania Constitution. "Corporations," for purposes of this chapter, shall include any corporation, limited partnership, limited-liability partnership, business trust, or limited-liability company organized under the laws of any state of the United States or under the laws of any country, and any other business entity that possesses state-conferred limited liability attributes for its owners, directors, officers and/or managers.
Corporations engaged in the extraction of natural gas shall not possess the authority or power to enforce state or federal preemptive law against the people of Baldwin Borough, or to challenge or overturn municipal ordinances adopted by the Borough Council of Baldwin, when that enforcement or challenge interferes with the rights asserted by this chapter or interferes with the authority of the municipality to protect the health, safety and welfare of its residents.
No permit, license, privilege or charter issued by any state or federal agency, commission or board of supervisors to any person or any corporation operating under a state charter, or any director, officer, owner or manager of a corporation operating under a state charter, which would violate the prohibitions of this chapter or deprive any Borough resident(s), natural community, or ecosystem of any rights, privileges or immunities secured by this chapter, the Pennsylvania Constitution, the United States Constitution, or other laws, shall be deemed valid within Baldwin Borough.
Any person, corporation or other entity that violates any prohibition of this chapter shall be guilty of a summary offense and, upon conviction thereof by a Magisterial District Judge, shall be sentenced to pay the maximum fine allowable under state law for a summary offense and shall be imprisoned to the extent allowed by law for a summary offense. A separate offense shall arise for each day or portion thereof in which a violation occurs and for each section of this chapter found to be violated.
Baldwin Borough may also enforce this chapter through an action in equity brought in the Court of Common Pleas of Allegheny County. In such an action, Baldwin Borough shall be entitled to recover all costs of litigation, including, without limitation, expert and attorney's fees.
Any Borough resident shall have the authority to enforce this chapter through an action in equity brought in the Court of Common Pleas of Allegheny County. In such an action, the resident shall be entitled to recover all costs of litigation, including, without limitation, expert and attorney's fees.
This chapter shall be effective five days after the date of its enactment, at which point the chapter shall apply to any and all extractions of natural gas in Baldwin regardless of the date of any applicable DEP permits.
The foundation for the making and adoption of this chapter is the people's fundamental and inalienable right to govern themselves and thereby secure their rights to life, liberty and the pursuit of happiness. Any attempts to use other units and levels of government to preempt, amend, alter or overturn this chapter, or parts of this chapter, shall require the Borough Council to hold public meetings that explore the adoption of other measures that expand local control and the ability of residents to protect their fundamental and inalienable right to self-government. Such consideration may include actions to separate the municipality from the other levels of government used to preempt, amend, alter or overturn the provisions of this chapter or other levels of government used to intimidate the people of Baldwin Borough or their elected officials.