Legal Defense Expert Talks To Pocahontas County Commission About Marcellus Drilling

Marlinton, WV – “It’s not so much the issue itself, gas drilling for instance” says Ben Price, Projects Director for the Community Environmental Legal Defense Fund, based in Chambersburg, PA. “You don’t have a gas problem, you have a democracy problem.”

Price was speaking to the Pocahontas County Commission earlier this week about how to address the issue of Marcellus Shale drilling.

“And the democracy problem is, the way we identify it is this” says Price,”if we have the premise that people are self governing and have the right to self govern on issues of direct impact on their communities, and on their health, safety and welfare and quality of life, or if not direct self governance, then through their representatives, such as County Commissioners; the problem that we run into is that communities are told that state law preempts them from enacting local ordinances that protect their rights and interests.”

Price, who is not an attorney, says that the legal defense fund is a non-profit public service law firm. He explains how they usually get involved with community groups.

“We would hear from a community group and they would be told well, Project X is coming in, the corporation has filed applications for permits, has the land, and now they’re looking to get the appropriate permits to allow the project to go forward” says Price. “And so we would be asked what can you to help us to prevent the permits from being issued.”

Price says what they used to do was compare the permit applications to existing laws to find deficiencies that might prevent the permit from being issued. However, he says even when successful in stopping a permit application, they didn’t always get the solution they were seeking.

“What we were actually doing was identifying the problems with the applications” he says, “and then 60 or 90 days later, we would get a call from the community groups. They would say, guess what, there’s a new application filed for the same project. So they amend the application, and in amending it they refer to our arguments against the permits being issued, and they plug in all the holes.”

He says that leaves local and state agencies with little power to oppose granting the permit.

Price says the legal defense fund has seen this become a critical issue in the controversy over Marcellus shale drilling. He says in Pennsylvania, there are over 3000 existing gas wells, with plans for anywhere from 50,000 to several hundred thousand more. For communities, he says it boils down to three options – do nothing, work within the existing laws and risk preemption at the local level by state code, or work to assert the rights of the community. He prefers option three.

“Assert rights by passing law that recognizes the rights, and then protects the rights by prohibiting activities that would violate those rights” he says. “I would predict and guarantee that if you turn to options one and two, you’re guaranteed to be “fracked”. There’s no guarantee that you win if you assert rights, but there’s a guarantee that you lose if you don’t.”

Price says the legal defense group continues to refine draft ordinances concerning Marcellus shale drilling. Commission President David Fleming asked Price to send a copy of the ordinance they drafted for the city of Pittsburgh. A local lodging owner, impressed with his presentation, offered Price free lodging, if he’s asked to come back and work with the Commission on this issue.