Pennsylvania is approaching a steep precipice, and the ramifications will be irreversible if we tumble over the edge and link our future to fracked gas, petrochemicals and plastics.
Could the Ohio River have rights? A movement to grant rights to the environment tests the power of local control
Can you imagine if the Ohio River and its tributaries had legal rights? While speculative, the idea isn't necessarily far-fetched.
The Rankin Bridge crosses over the Monongahela River between the boroughs of Rankin and Whitaker, near Pittsburgh. (Credit: Kimberly Rowen/PublicSource)<p>Thomas Linzey, co-founder and senior legal counsel of the Pennsylvania-based Community Environmental Legal Defense Fund [CELDF], sees the creation of the bill of rights as a tool to go beyond the protection offered by existing environmental regulations. His organization helped draft the measure, which has served as inspiration for similar proposals in cities like Buffalo, New York, and Flint, Michigan.</p><p>"I think Toledo is a real watershed moment," Linzey said. Residents took local action because "it got bad enough for people to shift gears."</p><p>In Pittsburgh, the idea of extending specific rights to a river is hypothetical — the mayor's office said that rights-of-nature legislation is not currently being discussed. The city, however, was previously a leader in rights-of-nature legislation with a 2010 ordinance that banned natural gas drilling by giving Pittsburgh residents the legal standing to sue on behalf of the natural environment.</p><p>Ordinances of this type, however, are largely symbolic until courts either uphold or strike them down.</p><p>"In Pittsburgh and wherever else these laws exist, they're just sitting there, not doing any good there," Linzey said. "Folks need to start picking them up and enforcing."</p><p>But not everyone feels that way. Industry groups largely bristle at local ordinances that go beyond state and federal regulations, and state courts have struck down several local ordinances with language rebuking municipalities for overstepping their authority. And though they agree with the end goal, even some environmentalists question if the fight to push an untested area of law is worth the potential financial costs from litigation and loss in community morale if a law is defeated.</p><p>A recent complaint involving a "community bill of rights" adopted by Todd Township in Huntingdon County, Pa., is an example of the pushback rights-of-nature ordinances can face. The 2018 ordinance, which was later repealed, included a ban on two types of industrial agriculture and was drafted with help from CELDF. It's been bluntly opposed by Pennsylvania Attorney General's office, which said in a March 2019 response to the complaint that the ordinance is "without doubt" in violation of state law and must be repealed to avoid costly litigation.</p><p>"CELDF knows this," the filing said. "[M]ore to the point, so do the Courts."</p>
State of the law<img lazy-loadable="true" src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yMjY1MTE0NS9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTYxMDA1ODc4Nn0.v694td9j3GJCtsjp-P9RwoF3koVPwlODfJSPT9LzS4Y/img.jpg?width=980" id="82c9f" class="rm-shortcode" data-rm-shortcode-id="b79f020dbac881745ac0f579590b86a8" data-rm-shortcode-name="rebelmouse-image" />
A tugboat pushes barges along the Ohio River at the confluence of the Monongahela and Allegheny rivers, near Point State Park in Pittsburgh. (Credit: Ryan Loew/PublicSource)<p>So why give rights to nature? Don't the state and federal government already enforce environmental regulations?</p> <p>That's the argument made by some industry groups that contend local environmental ordinances create a burdensome patchwork of rules municipalities aren't authorized to enforce.</p> <p>David Spigelmyer, president of the Marcellus Shale Coalition, said in a statement to PublicSource that oil and gas drilling in Pennsylvania is already regulated appropriately and "so-called model ordinances or zoning proposals" pushed by environmental groups "are nothing more than backdoor attempts at banning strongly regulated natural gas development."</p> <p>Linzey and other advocates, meanwhile, think current state and federal rules don't do enough.</p> <p>"What we've worked on for the past 15 years is actually creating a legal argument that says the city does have that authority, and the city authority can override the state permit" Linzey said. "And that's still a radical notion in legal circles."</p> <p>In 2006, Tamaqua Borough in Schuylkill County, Pa., became the first place in the United States to recognize rights of nature in law when it banned toxic sewage dumping. </p> <p>In 2013 and 2014, Highland Township in Chester County and Grant Township in Indiana County, respectively, adopted ordinances that banned hydraulic fracturing waste dumping. Both laws were challenged by the Pennsylvania Department of Environmental Protection [DEP] on the notion that they violated the state's exclusive right to regulate natural gas activity under the 2012 Oil and Gas Act. Highland's case was settled in favor of the DEP, but Grant's case is ongoing. </p> <p>A case involving the local authority of Robinson Township in Allegheny County to regulate fracking opened a pathway to limited local control. </p> <p>In 2013, the Pennsylvania Supreme Court ruled that Robinson Township did not have authority to ban fracking, though it could restrict where it happens. The ruling was partly based on a provision in the state Constitution called the Pennsylvania Environmental Rights Amendment. </p> <p>The 1971 amendment bestows the right to a clean environment on all Pennsylvania residents. In 2017, the state Supreme Court reaffirmed its 2013 decision, stating that the Robinson Township ruling was widely applicable to other municipalities.</p> <p>Grant MacIntyre, director of the University of Pittsburgh's Environmental Law Clinic, sees this ruling as a landmark environmental decision. The initial case "started to upend what people assumed was the existing structure for interpreting that amendment," he said, and the 2017 case "firmly placed the Environmental Rights Amendment back into the legal narrative."</p> <p>The amendment grants rights to people — not natural entities like the Ohio River. But MacIntyre said the "the values in that amendment are certainly those that express value for the environment in a way that would seem to align with a natural rights movement."</p> <p>Industry and agricultural groups view the Environmental Rights Amendment differently.</p> <p>Mark O'Neill, director of media and strategic communications for the Pennsylvania Farm Bureau, said current state regulation is consistent with the charge of the amendment. Local governments are permitted "considerable latitude in regulating farming" under state restrictions, O'Neill said. But "the key here for municipalities is that they exercise their regulatory authority in a reasonable, not punitive way."</p> <p>O'Neill also noted that Pennsylvania courts have repeatedly struck down local ordinances.</p> <p>Emily Collins is watching rights-of-nature cases closely. She is the executive director of Fair Shake Environmental Legal Services, a Pittsburgh-based nonprofit law firm.</p> <p>Collins said potential clients come to her organization "literally out of desperation...mostly because they thought they had a right [to protect their environment], but the government isn't treating them like they do."</p> <p>But she's cautious to recommend rights-of-nature ordinances. She's seen communities "feel complete burnout" after seeing their ordinances fail to be upheld in the courts. </p> <p>"I think there's a limited amount of civic engagement and energy that you can put into these environmental questions that communities are facing," she said. "I would rather harness that energy to do something that I know is possible."</p>
Costs and strategy<img lazy-loadable="true" src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yMjY1MTE0MS9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTYyNjQ0MDU0MX0.H-g465sIjvNSiQcYBpEQ8srbn6vYPk8ls2FOdcpn5NY/img.jpg?width=980" id="4b591" class="rm-shortcode" data-rm-shortcode-id="08d8a3748262f740cf0dc03600c9e3d1" data-rm-shortcode-name="rebelmouse-image" />
David McKeag of Chalfant, Pa., casts into the Monongahela River at the Braddock boat ramp on Jan. 30, 2020. (Credit: Kimberly Rowen/PublicSource)<p>Chad Nicholson sees both promise and risk in rights-of-nature ordinances.</p><p>One afternoon in April, Nicholson stood at the Braddock, Pa., "beach," the site of a small cement dock for boats to come out of the river, adjacent to U.S. Steel's Edgar Thomson Steel Works. U.S. Steel has faced public criticism and multiple lawsuits over the harm of pollution and violation of air quality permits. Plans to allow fracking at the plant have also drawn criticism, though officials in nearby boroughs <a href="https://www.publicsource.org/the-well-next-door-east-pittsburgh-and-north-braddock-diverge-on-the-local-impact-of-proposed-fracking" target="_blank">both support and oppose the move</a>.</p><p>"The system is too cooked. We can't tweak it," Nicholson said, looking out at the Monongahela River. "We have to create something new." Nicholson, a Pennsylvania-based organizer for CELDF, believes rights-of-nature laws could be that something. </p><p>He notes, though, that a small borough like Braddock might not be well-positioned to pursue a hypothetical rights of nature legal battle — they're costly, both monetarily and in community morale. When towns are considering an ordinance, he asks, "Are you prepared to go bankrupt?"</p><p>Grant Township in Indiana County is concerned about that prospect. In an attempt to stop a frack-waste injection site, township supervisors in 2014 adopted a community bill of rights containing rights-of-nature language. Shortly after, Pennsylvania General Energy [PGE] filed a lawsuit that settled in April, after five years of litigation. Grant Township owes PGE just more than $100,000 in compensation for legal fees the corporation spent suing the township.</p><p>"We don't have it," said Stacy Long, vice chair of the Grant Township Board of Supervisors and board member of the East Run Hellbenders Society, an environmental group formed to oppose drilling. "I offered them a $250 Sheetz card," she said, chuckling. </p><p>In a <a href="https://www.reuters.com/article/us-usa-fracking-lawsuits-insight/green-groups-unconventional-fight-against-fracking-idUSKCN0P90E320150629" target="_blank">June 2015 Reuters article</a> about the township's efforts, Linzey was quoted saying that bankruptcy may be a necessary consequence for a municipality to push the rights-of-nature movement forward.</p>
The Allegheny River in Pittsburgh. (Credit: Jay Manning/PublicSource)<p>Long said she feels Pennsylvania's current environmental law has failed her community and the natural environment: "You have to wait to get polluted or poisoned, and then you can sue, but not before that."</p><p>In October, the DEP presented opening arguments in its <a href="https://www.indianagazette.com/news/hellbenders-have-their-day-in-court/article_a3381998-edaf-5743-8277-e2ac71ee60e6.html" target="_blank">lawsuit against Grant Township</a> for its attempts to limit oil and gas fracking. The DEP asserted the township's efforts were in direct opposition to the DEP's permitting process.</p><p>Lauren Fraley, the southwest regional community relations coordinator for the DEP, said the agency cannot comment on ongoing litigation. She referred to filings in the case in which DEP affirms the rights of municipalities to use zoning restrictions to promote environmental health. She also noted that if Pennsylvania residents believe DEP protections are insufficient, they have a right to advocate for change.</p><p>"Where citizens and local officials believe that existing regulation is insufficient, they have a few options: lobby state and federal representatives to pass laws providing more legal authority to regulate an activity; pass lawful ordinances within local authority to address the issues of concern (where the local government holds authority and is not preempted), and petition the regulatory authorities directly, like EPA, DEP, PUC, etc. to seek to have enhanced rules created," Fraley wrote in an email.</p><p>Thomas Hoffman, a clean water organizer for the Pennsylvania chapter of the Sierra Club, noted the importance of political organizing.</p><p>"The current strategy of the environmental movement is too reliant on legal strategy," he said.</p><p>For instance, he criticizes the Allegheny County Sanitary Authority [ALCOSAN] for not doing enough to address flooding and industrial runoff in its plans to invest $2 billion to reduce sewage contamination in local rivers. <a href="https://www.publicsource.org/how-much-green-infrastructure-will-be-included-in-alcosans-2-billion-upgrade-to-prevent-sewage-overflows/" target="_blank">ALCOSAN has repeatedly said</a> that its scope is limited to reducing sewage overflows. To advocate for more, the Sierra Club's Clean Rivers Campaign has a political strategy that includes public education, walking tours, petition signing and lobbying.</p><p>In Linzey's view, rights-of-nature laws are about more than court battles.</p><p>"What you're seeing is not just a legal strategy, it's an organizing strategy," he said. Ultimately, Linzey doesn't want to only see laws change. "It's not just a seismic shift in the law that has to happen," he said. "It's a seismic shift in thinking about nature that has to happen."</p>
How the Ohio River Valley Water Sanitary Commission’s role as steadfast defender of the Ohio River has changed over time
I live in Mount Washington, on the east side of Cincinnati, roughly the midpoint of the 981-mile Ohio River. Below us, near the mouth of the Little Miami River, marinas, barge terminals and Cincinnati Water Works' Miller Treatment Plant line the river's bank.
Biologists testing fish species in the Ohio River. (Illustration by David Wilson for Belt Magazine)<p>ORSANCO is still going. These days, it monitors the river at locks, dams and tributaries for metals, radiation, chemicals and biologicals. Their biologists are out there every summer, electrically stunning and counting fish for the largest river fishery dataset in existence.</p> <p>Key to my health — and yours, if you live in a municipality along the Ohio's banks — is their source water protection program, through which ORSANCO partners with drinking water utilities. For example, ORSANCO operates an organic compound detection system, which monitors around the clock for spills. When one occurs, ORSANCO staff track, model and share information with downstream water utilities. ORSANCO also sets pollution control standards for levels of contaminants, based on their impairment of four essential uses of the river: drinking and industrial water supply, recreation and habitat for fish and wildlife.</p><p>A few years ago, ORSANCO's board of commissioners flirted with eliminating its pollution control standards. The reason, according to ORSANCO Chief Engineer and Executive Director Richard Harrison, is that the Clean Water Act had developed to a point that some people on the commission felt there were now redundancies between ORSANCO and the federal act — and that this entailed altogether too much regulation. "The thought that you can put everything in a regulatory arena and have the same level of investment in infrastructure replacement just isn't accurate," he said.</p><p>ORSANCO embarked on a multi-year review process that resulted in June 2019 with the decision to revise those standards to allow for "greater flexibility" among its member states. There was immediate blowback. Over three public sessions, four hearings and multiple webinars, the commission received more than 10,000 comments, almost all of them against revising the standards it had long set. It's the word "flexibility" that vexes many concerned citizens who worry it removes a much-needed check on polluters.</p><p>The news came at what felt like a bad time for the Ohio River. Cincinnati's "Bill Keating Jr. Great Ohio Swim," the only open water swim across the Ohio and back, was canceled in October due to a harmful algal bloom (HAB). The Trump administration's repeal of Obama-era protections of drinking water supplies was ringing in my ears. And for the umpteenth year running, the Ohio River had been listed by the U.S. Environmental Protection Agency [EPA] as the dirtiest river in America based on raw tonnage of emissions. </p> <p>ORSANCO's seemingly softened stance felt like a steadfast defender of our river had put down its sword.</p><p>Harrison told me the recent revision doesn't in any way change its mission to protect the four uses of the river. And while the compact grants the commission authority to "issue orders on any entity discharging sewage or industrial waste," per the ORSANCO agreement, it falls to the states to actually enact legislation necessary to maintain their Ohio River waters according to the standards. In practice, enforcement happens through the EPA, which publishes its own water quality standards, and the National Pollutants Discharge Elimination System, which is part of the Clean Water Act.</p><p>Tom Fitzgerald, a federally appointed ORSANCO commissioner and director of the Kentucky Resources Council, was a voice of both dissent and compromise in the revision process. The latest review of the pollution control standards revealed that one state, Illinois, wasn't applying any of ORSANCO's standards to its discharge permitting and another, Ohio, was only using some of them, he explained. (Ohio has since moved to implement them.) Some ORSANCO commissioners argued that the discrepancy in application of the standards was leading to undue confusion.</p><p>"The reality is there's no mechanism in those pollution control standards or in the compact to compel a member state to use the standards," Fitzgerald told me. For ORSANCO to compel any one of the member states to comply would be unlikely, given that it requires a vote from two out of three of the commissioners appointed by each of the states, including the offending state. And for ORSANCO to force compliance on one of its member states would have a corrosive effect, he said, jeopardizing by extension the other vital roles ORSANCO fills.</p><p>But outright elimination of these historically agreed-upon standards "would have sent entirely the wrong message at a time when the science behind pollution control and the premise that you don't compromise public health for economic considerations are under attack," and when the EPA's standards are being delayed, repealed and otherwise revised, Fitzgerald said. "I think that for ORSANCO to have signaled a retreat on water quality would have been devastating."</p>
The Ohio River near Sewickley, Pa. (Credit: Nick Childers/PublicSource)<p>The muddy Ohio was unusually clear at Cincinnati this year. Near the banks you could actually see the bottom. But pretty quickly, a green film of algae formed in the water. As the date of the "Bill Keating Jr. Great Ohio Swim" approached, Miriam Wise was paying close attention to E.coli and harmful algae levels in ORSANCO's weekly water quality reports. Wise works for Adventure Crew, the nonprofit that organizes the swim. Adventure Crew hoped conditions would change, that the HAB would drift downstream. When it didn't, they canceled the swim. That's a shame, Wise said, because registrations for the event have been on the rise. The Ohio Department of Natural Resources has also seen increased registration for kayaks and canoes. People are flocking back to the river, which feeds back into a wellspring of support.</p><p>The Ohio River Paddlefest, which Wise also organizes, wasn't canceled. This August event is the largest group paddle in the nation. The Ohio is closed to motorized and barge traffic for an en masse 10-mile float. As usual, thousands turned out. Kayaks and canoes spread across the mile-wide river in a bright flotilla. Wise said the event reconnects people with the river, which they then share, counteracting the bad rap for "the most valuable natural resource in the region," she said. </p><p>During the summer, Brewster Rhoads, who founded the Ohio River Paddlefest, swims in the river about five times a week from the Ohio River Launch Club, where he moors his steel, motorless double-decker Kelly houseboat. Rhoads has lived in Mount Washington much longer than me — since the 1980s — but like me, his preferred route into the city follows the water. Over the decades, he's watched that neighborhood, Cincinnati's historic East End, transform as Mom and Pop shops close with the departure of residents whose livelihoods were tied to the river. This was the center of Cincinnati's booming steamboat industry. Steamboat captains lived here, he said. And a couple of grand (if dilapidated) old dames still stand there, with high turret rooms that take in the broad sweep of water.</p><p>Photographers Charles Fontayne and William S. Porter captured the history of this place in their first panorama of an American city: "Daguerrotype View of Cincinnati." The image was taken from a Newport, Kentucky rooftop in September 1848, almost exactly a century before the ORSANCO compact was signed in Cincinnati. </p> <p>This length of bank is shown in the eighth and final plate of the series. It's a diagonal shot across the upriver water. Dozens of silvery sternwheelers stand along the banks at what was then called Fulton, named for the inventor of the commercial steamboat. Timber and industrial detritus tumble into the river beneath smoke-shrouded, denuded hills. In the foreground, just off the Kentucky shore, a man drives his horse and cart in the shallows. Held up to the present, it completes a picture of how deeply we have relied on this waterway, how hard we have used it. How central it was and will always be to the landscape and communities through which it wends.</p><p>Our present economic connection to the river is no less real, but easier to overlook. Energy generated along its banks travels over high-tension lines from rural power stations. Riverside utilities and industries are boxed in behind high levees and fencing. </p> <p>Meanwhile, in that familiar succession of neighborhoods, the old riverside villages are being replaced by new communities for those who can afford a premium river view. In downtown Cincinnati, as in many river cities, millions are being invested in riverfront development that draws on the beauty and sense of place only a river can provide. The shift from industrial to commercial and residential is probably good for the river's overall ecology, Rhoads thinks. And while location alone doesn't connect you with the river the way swimming or paddling these waters will, those new water-facing windows have potential to build what Rhoads calls "a constituency of concern for the health of the river."</p>
A castle-like tower at the Cincinnati Water Works' Miller Treatment Plant. (Illustration by David Wilson for Belt Magazine)<p>So if ORSANCO was never an enforcer, how did it manage to accomplish so much? And what does that say about its the future?</p> <p>Edward J. Cleary, ORSANCO's first director, believed the commission's success lay in its appeal to the ultimate authority on the fate of the river: public opinion. From the beginning, it mounted PR and community action campaigns in some 3,000 riverside cities and towns, made films, held rallies, all of which garnered citizen support at the ballot box for the bond issues that primarily financed water-treatment infrastructure. In "The ORSANCO Story: Water Quality Management in the Ohio Valley," Cleary, an engineer, writer and former employee of Thomas Edison, estimated the project came out to an average price of about $100 per capita across the Ohio River Valley.</p><p>ORSANCO is still waging a PR campaign for a river that many, including environmental activists, say still has an image problem: its designation as the most polluted waterway in America, based on the EPA's annual toxic inventory report. </p> <p>News reports touting those numbers do the river a disservice, Harrison said, because they don't account for overall volume, flow and other factors like where discharges occur. Under normal flow conditions, he said, from a bacterial standpoint the river is safe for recreation. "When you look at the Ohio River Sweep [the annual volunteer-powered cleanup ORSANCO organizes along the river's entire length], when you look at the Ohio River Recreation Trail, and at the Great Ohio River Swim, these are all events that show that in actuality the river is in amazing condition."</p><p>In the coming years, ORSANCO must adapt, developing programs to guard against emerging contaminants with difficult-to-pronounce names, even as it tracks legacy pollutants and residual damage from mining and industry past. Next year, Harrison told me, they will be partnering with the EPA on sampling for perfluorinated compounds, or PFAS, which are the focus of lawsuits against DuPont for releasing them into the Ohio. HABs, like the one in 2019 that covered 300 miles of river or a 2015 bloom that covered 700 miles, are a complex new threat to health, by no means unique to the Ohio River Valley.</p><p>And then there's a past that threatens to return. "There's the issue of the viability of small drinking water and wastewater systems," Fitzgerald said. "You know we almost have two worlds out there. We have those cities and those communities that can afford safe and reliable treatment and we have those systems that have failing or close-to-failing drinking water systems." </p><p>A river as powerful and important as the Ohio lays the groundwork for many possible futures. ORSANCO, it seems, has a role in all of them. There's just too much at stake. It's essential for all the river's users to sit at the table, because the more eyes on the river, the better. </p>
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