American Oil and Gas Reporter - April 2015 - 178

ConventionCoverage: Pennsylvania Independent Oil & Gas Association
ki, R-Ak., takes the gavel in the Energy
and Natural Resources Committee.
"Senator Inhofe already has established priorities for moving forward,
ranging from the highway bill to the
Endangered Species Act to climate
change. He possibly will seek tax reform
as well," McDonald offered. "In terms
of her experience when Secretary of Energy (Sally) Jewell testified before the
committee, Senator Murkowski gave an
indication of what is going to move for-

ward from her in the next couple of
years: Alaska, Alaska all the time."
During Senate budget hearings in late
February, several senators raised questions
about the ESA status of the northern
long-eared bat, she said. Jewell did not
provide many detailed answers, but did
foresee a threatened status in the near future, McDonald reported, adding IPAA
and other industry groups are planning
to advocate for a range of exemptions
under ESA's 4(d) provision.

Republicans remain in charge of the
House of Representatives, McDonald noted, but several committees have new
chairmen, including the Natural Resources
Committee, with Rob Bishop, R-Ut., replacing Doc Hastings, R-Wa.
"Hastings was known as a collaborator,
working with individual groups, particularly at the local level but also Democrats,
to achieve compromises," assessed McDonald. "Bishop is more of a bomb
thrower."
Ì

Community Rights Struggle Continues
CHAMPION, PA.-Oil and gas operators usually have the law on their side
when fighting community bill of rights
initiatives, but achieving victory can be
an expensive campaign.
A trio of Pennsylvania lawyers joined
Kevin Moody, vice president and general
counsel of the Pennsylvania Independent
Oil & Gas Association, for a panel discussion on local ordinance legal issues
during PIOGA's winter meeting, held
Feb. 24-25, at the Seven Springs Mountain
Resort in Champion.
When the community environmental
rights ordinance movement began in
2008, it targeted the coal industry, recounted Kevin Garber with Babst Calland.
It has also moved to farming as well as
the oil and gas and other extractive in-

dustries, with local municipalities seeking
to strip corporations of their commercial
and constitutional rights, and to create
rights in ecosystems such as wetlands, as
if they were persons.
Garber said he and fellow PIOGA
panelist Blaine Lucas, who also works
with Babst Calland, first encountered the
movement that year in Washington County, Pa., where the Community Environmental Legal Defense Fund (CELDF)
worked with municipal and township officials in an effort to prohibit coal mining.
"The way these ordinances developed
is that they are not specific," Garber said.
"They are blanket prohibitions on extractive activity that strip away corporate
rights. The legal challenges to block ordinances proceed on federal and state

Participating in a panel discussion on local ordinance legal issues during the Pennsylvania
Independent Oil & Gas Association winter meeting, held Feb. 24-25, at the Seven Springs
Mountain Resort in Champion, Pa., are, from left, Kevin Moody, PIOGA's vice president
and general counsel; Blaine Lucas, an attorney with Babst Calland; Lisa McManus, vice
president legal and general counsel for Pennsylvania General Energy Company; and
Kevin Garber, an attorney with Babst Calland.

178 THE AMERICAN OIL & GAS REPORTER

levels. On a federal basis, the challenges
that succeed say the ordinances violate
protection and due process, and violate
the supremacy clause of the U.S. Constitution. Then there are any number of
state grounds. We believe the Oil and
Gas Act pre-empts these ordinances. They
are exclusionary, and therefore prohibited
by Pennsylvania law."
Moody said that in a case involving a
CELDF-proposed ordinance prohibiting
a normal agricultural operation, "Our
Commonwealth Court ruled in 2008 that
there was no 'right to local self-government' in Pennsylvania's constitution,
which is CELDF's claimed legal basis
for these ordinances, yet CELDF continues
to assert this so-called right."
Garber added a federal judge in the
District Court for the Western District of
Pennsylvania wrote a very strong opinion
that dismissed the Washington County
ordinance.
Lucas pointed to one section of the ordinance that forbade discussions about the
ordinance between any representative of
a corporation and anybody in the township.
Another portion said if any higher legislative
or judicial authority deemed a local government action as pre-empted, the local
government preserved the right to consider
severance from higher government.
Another interesting aspect of some of
the ordinances, suggested Lisa McManus,
vice president legal and general counsel
for Pennsylvania General Energy Company, was they provided residents the
right to file an action on behalf of ecosystems.
"PGE filed an action against a township," she said. "There was a petition for
intervention by the watershed itself. It is
a legal statement that the watershed has
a right to come into court and file an
action on its own. It is very novel, and

American Oil and Gas Reporter - April 2015

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