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Behind multiple local campaigns to ban fracking, one Pa. legal clinic

On a local level, the work of Ben Price and his colleagues shows up under names like the Youngstown Community Bill of Rights or the Lafayette Community Rights Act.

There was also the slightly clunkier Mora County Community Water Rights and Local Self-Government Ordinance.

But Price, the national organizing director for the Community Environmental Legal Defense Fund, suggests a catchall for the group's efforts: "nonviolent civil disobedience through local lawmaking."

The Pennsylvania-based Community Environmental Legal Defense Fund, or CELDF, has offered up free legal assistance since 1995 -- when it first worked to help communities fend off industrial projects via local permitting processes -- but in recent years, its work has gained attention as its efforts have turned to fighting against the development of hydraulic fracturing, or fracking.

In particular, the nonprofit law clinic, working in tandem with local activist groups, has drawn attention for its creative strategy in cutting off access to oil and gas developers.

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"This is an organizing strategy. We use law -- that's what's different. That's what's unusual about this strategy. We're actually using local lawmaking to advance the rights of people in their communities," said Price, who makes several comparisons to the civil rights movement of the 1960s in an hourlong conservation.

Rather than attempt to block development at the state or federal level, CELDF and its allies focus their efforts on creating "community rights" bills; the measures assert a locality's right to clean air and water, and often the rights of local ecosystems to thrive. At the same time, the bills seek to curtail corporate personhood, or the idea that businesses may claim the same protections afforded to individuals.

According to Price, the nonprofit has successfully worked in about 160 communities to date to enact laws, ordinances, local statutes or charter amendments based on its strategy.

Whether the tactic holds up over the long run remains to be seen -- bans on fracking in New Mexico and Colorado have been challenged by the oil and gas industry (EnergyWire, Nov. 18) -- but Price said CELDF has no plans to slow its work, which included more than 30 local rights bills in 2013.

Price can't give an exact count on how many proposals will go before local voters, city councils or county commissions this year -- he ticks off potential bills in Boulder, Colo.; Mendocino County, Calif.; and a handful of Ohio cities -- but he adds: "It's a real battle. Every inch of the way is a fight."

A strategy evolves

In its early years, CELDF offered free legal assistance or training to communities aiming to block projects via the state's regulatory system, typically raising issues with project permits.

Much as the nonprofit's focus has shifted since its establishment in the mid-1990s -- when it worked to curb projects like quarries and factory farms in the Keystone State -- Price notes that its legal strategy has also developed over time.

"It was kind of a traditional theory of organizing: Community organizations generally could not afford to hire attorneys at the prices they went for, hundreds of dollars per hour, and it made it very difficult for community members to go up against corporations," Price said.

CELDF's co-founders, Executive Director Thomas Linzey and Administrative Director Stacey Schmader, found success, even receiving an invitation to Environment Day at the White House in 1998 as guests of then-Vice President Al Gore.

But Price said the strategy of regulatory objections would prove problematic: Companies would eventually correct the errors CELDF raised, clearing the path for so-called factory farms and the use of sewage sludge, a liquid fertilizer made from waste.

"With that kind of free legal support from the legal defense fund, industry could amend their applications, resubmit them, and, at that point, it was virtually impossible for us to represent the community," Price said. "And so we didn't get the kind of results that folks really wanted, which was the ability to make decisions and to say no to projects that would be harmful to their health, safety and welfare ... so that wasn't a very satisfactory place to be."

Around that time, Price said CELDF began to amend its strategy.

"That, of course, sparked a lot of thinking and soul searching and research on our part, and it came down to examining what were the things that were stopping people from being the stewards of their own environment. What stood in the way?" Price said.

CELDF would begin pursuing local ordinances, many of which included bits of the language that would become the template for the community rights bills it now helps to implement in localities nationwide.

"The conclusion we came to is what is the higher law here: Is it state regulations, the permitting process, state regulatory agencies, or is it the people? And most state constitutions recognize the people as the source of all governing authority," Price said.

Without the community rights measures, Price asserts that localities are typically left with little more than zoning measures, which he called "drafting up terms of surrender."

"Zoning isn't really about governing. It's not about deciding whether certain activities are allowed. It's about saying where they're allowed," Price said. "You get to decide what part of your community to surrender to the frackers."

Even though much of its recent work has focused on challenges to the oil and gas industry, Price rejects the suggestion that the nonprofit has made a conscious effort to focus on hydraulic fracturing.

"Fracking is not part of our mission, if you will. We're not an advocate against fracking or for fracking, or for or against anything particularly," said Price, who joined CELDF in 2004 after serving as president of the watchdog Pennsylvania Consumer Action Network.

Price, who is not an attorney, said CELDF's shift from farms to fracking in large part has come at the behest of the local groups that contact the office for assistance. It won its first ban in 2010 when the Pittsburgh City Council agreed to ban drilling within the city's limits.

"It's not so much that it's fracking all the time, it's that it's a broad problem shared by so many communities," Price said. "I think maybe the extraction industry has unwittingly woken up the sleeping giant."

He noted that although CELDF once worked exclusively in Pennsylvania, it now boasts in-state organizers in Ohio, New Hampshire, Maine, New Mexico, Washington and Illinois.

According to its 2012 tax filings, CELDF reported about $1.2 million in net assets. The bulk of its revenue came in the form of about $746,000 in grants and contributions.

Among its donors, CELDF counts the Jessie Smith Noyes Foundation, which backs grass-roots efforts on environmental and social policy issues. On its website, the foundation reports it gave CELDF $20,000 in 2012 to "help communities promote sustainable development by reining in corporate power and asserting local democratic control." The foundation likewise gave CELDF $25,000 each year from 2009 to 2011.

The New York-based Norman Foundation is also a repeat supporter of CELDF, providing $25,000 a year between 2010 and 2012. Other contributors have included the Swift Foundation, RSF Social Finance, the Park Foundation and the Howard Heinz Endowment.

CELDF's expenses include offering assistance in responding to legal challenges to the community rights bills.

"When that becomes law, we're not gone at all. We're there to consult with the community if there is a challenge," Price said, pointing to Highland Township in Elk County, Pa., where Seneca Resources Corp. has said it could challenge a 2013 ordinance that would ban injection wells. U.S. EPA approved a wastewater injection well permit for the project earlier this year.

Protecting 'what you feel are fundamental rights'

While CELDF's efforts often achieve headlines as well as lawsuits, it often cedes the spotlight to local activists who work on the drive in their city or county.

"We don't do any self-promoting, it really has been about people calling us," Price said. "I think that the work we're doing has sparked people's imagination."

That imagination has prompted one of the most inclusive efforts CELDF has assisted with to date: a proposed amendment to Colorado's Constitution that would allow cities and towns to block or deter any action by a for-profit business -- not just the oil and gas industry (EnergyWire, Jan. 24).

"We look at this as the building of a real movement," Colorado Community Rights Network organizer Cliff Willmeng told Greenwire. "It's a social cause that addresses a fundamental legal structure that is used by the few against the interests of the many."

The measure, formally the "Right to Local Self-Government Act," aims to curb state pre-emption, a legal precedent in which local laws may be invalidated when they conflict with state laws.

The amendment would instead hand the trump card to municipalities, allowing them to refuse industrial activities that they see as a danger to the health and safety of their communities, even when state law would otherwise allow the activities.

Willmeng said the inspiration for the amendment, which must still clear several hurdles before it can appear before voters in November, came from a 2012 ban on fracking that CELDF pursued with activists in Lafayette, Colo.

Willmeng, then a leader with the group East Boulder County United, said the success of the Lafayette measure, despite an ongoing legal challenge, prompted a desire to look at the state as a whole.

"On any thoughtful review, you really start to realize that as a community there's no legal authority granted to you to enact laws to protect what you feel are fundamental rights," Willmeng said.

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