Borough staffers have instructed Penn State staffers to remove the signature block for the Planning Commission and Borough Council from the preliminary West Campus Steam Plant conversion permit application, leaving only spaces for Borough staffers and fire officials to sign.
I’ve been thinking about Columbia Gas’ April 30 letter and the Borough’s May 3 press release about it, and how both fit with all the other moving parts in the pipeline/power plant/energy sovereignty story.
I think the urgency of the Columbia request – that the Borough rescind the April 11 non-approval letter in exchange for Columbia withdrawing their March 18 permit application – is primarily about preventing what CELDF’s Tom Linzey calls “leakage:” people in other municipalities finding out that people in State College effectively stopped installation of a natural gas transmission line in the public right-of-way by refusing to issue a municipal construction permit.
That leakage is quite important; if the Borough rescinds the April 11 letter, the leak will slow or stop, to the detriment of people here, and people elsewhere who are observing developments here.
Sometime last fall, Columbia Gas set in motion a very peculiar chain of events, similar to the way that Lord Voldemort turned Harry Potter into his nemesis by attacking him, even though Neville Longbottom could just as easily have been the child born in July destined to destroy Voldemort’s power.
Under state and federal preemption doctrines, municipalities don’t have a recognized legal right to interfere with corporate utility activities in the public right-of-way. We’re baby wizards, while the utilities are essentially self-regulated, with a fig leaf of government oversight from (in our case) the PA Public Utilities Commission.
For some reason yet to be made clear, State College Borough Council updated our local right-of-way ordinance in November 2012. In the absence of an easily-accessible legislative history, my guess is that Penn State and Columbia Gas lawyers drafted the Right-of-Way Ordinance (#2005) and Penn State OPP administrators delivered it to the Borough Council at the town-gown meeting on November 9, urging the Council to pass the ordinance at their November 19 meeting, which the Council did.
Their goal was presumably to update a mechanism to slap a coat of local blessing on the pre-arranged pipeline plan by having Columbia Gas submit – as a courtesy only – a permit application under the ordinance they had written, get the rubber stamp of Borough approval and start digging.
Columbia Gas probably never regarded the ordinance – or the permitting process – as legally significant in any way, because they believe they have an absolute right – again, under state and federal preemption – to construct pipelines in any public right-of-way they choose. Columbia Gas regards the municipality as a subservient entity, not as an equal, because the Pennsylvania Legislature has, in fact, set municipal corporations up as subservient to business corporations. (See Dillon’s Rule, and its opposite, the Cooley Doctrine).
Then a weird thing happened. Concerned, informed, engaged, articulate residents spoke out against the pipeline project, uncovered a few lies and misrepresentations in the Columbia Gas/PSU plan, and the Borough Council lost faith with the permit applicants and sided – for the time being – with the residents.
Council & Borough Manager unexpectedly behaved as if they truly have legal authority to protect community health, safety and welfare. And by acting the Lily Potter part of legally-authorized community protectors, Council and Manager inadvertently created some new power for the Borough, formalized in the April 1 resolution and the April 11 letter of non-approval.
The long-dormant public debate over the contractual relationships between community members, local governments, business corporations and state legislatures is flickering back to life, fanned by the people of the Borough Who Lived.
And Columbia Gas is in a pickle.
The April 1 resolution and April 11 letter may be legally meaningless documents; the only way to test them is to file a lawsuit. And yet they both exist, as part of a very public record of official municipal opposition to a project with public effects.
Not surprisingly, Columbia Gas would like to go back and have a do-over, in the familiar world where they draft an engineering plan and build what they want to build, where they want to build, when they want to build – with no community interference.
But to have that do-over, they need to erase the Borough’s paper trail: thus the request that the Council and Borough Manager officially rescind the non-approval letter.