Unsettling the Law of Public Endangerment

Recently, the Centre Daily Times has been reporting on a reckless endangerment case:

“A 29-year-old State College man could spend up to five years in state prison for putting an infant passenger at risk during a domestic altercation in a moving car. Kevin J. Sherlock was sentenced Tuesday to serve one year and 10 months to five years in state prison on charges of endangering the welfare of a child and recklessly endangering another person.”

There are laws in place to criminalize acts that endanger children and other adults, at least when those acts occur in a private context such as domestic violence.

But when those actions take place in a public context, such as installation of a natural gas pipeline through a public right of way in a residential neighborhood, endangering children and adults is a state-sanctioned activity.

The most potent argument put forward by Columbia Gas is that public endangerment is “well-settled law,” mostly because the phrase itself has a calming, even soporific effect on public outrage. “Oh, it’s settled. Well, that’s that.”

But settled law gets unsettled. There’s nothing more predictable about human affairs than their unpredictability: inevitable change in response to new circumstances and new community priorities.

State College in the summer of 2013 may be one of the times and places where the law of public endangerment gets unsettled. It’s a matter of peeling off support for the precedent of unjust law – converting acquiescence to defiance – and we’ve already made a good start.

Less than two years ago, 2,007 voters were persuaded that we needed a Community Bill of Rights to protect our community from new fossil fuel infrastructure and to establish our right to a sustainable energy future. At the time, a strong five-member majority of the Borough Council opposed the bill of rights, publishing an op-ed in the Centre Daily Times on October 29, 2011.

Council members Filippelli, Daubert, Lawrence, Lafer and Rosenberger argued:

“[The Community Bill of Rights] language has the effect of placing the Borough of State College above the power of the Commonwealth of Pennsylvania and the United States government and puts the borough at risk for unnecessary and costly litigation.

Many municipalities in Pennsylvania are considering ordinances to prohibit the extraction of natural gas through the process of fracking. These actions are appropriately legislative in character and, ultimately, the decisions about the validity of such ordinances and whether local government has the power to regulate these activities will be determined by the state Legislature or the appellate courts of Pennsylvania…”

Sixteen months later, on April 1, 2013, a unanimous Borough Council directed the Borough Manager to refuse to approve a permit that violated the same principle of local authority to protect public health and safety asserted in the Community Bill of Rights.

And a few days later, the Borough Manager also joined the fight begun by the Bill of Rights voters in November 2011.

The next layer of support for the law of public endangerment to peel off is the judicial layer, starting with the recent lawsuit filed by Columbia Gas against the Borough of State College on the grounds that  community members have no inherent and inalienable right to protect our own health and safety.

If a Centre County judge chooses to join with the people, and against the corporations, there’s a beginning thread of judicial precedent to support that decision – the order in Hallowich v. Range Resources, written by President Judge Debbie O’Dell Seneca of the Washington County (PA) Court of Common Pleas:

“…it is axiomatic that corporations, companies, and partnerships have ‘no spiritual nature,’ ‘feelings,’ ‘intellect,’ ‘beliefs,’ ‘thoughts,’ ‘emotions,’ or ‘sensations,’ because they do not exist in the manner that humankind exists… They cannot be ‘let alone’ by government, because businesses are like grapes, ripe upon the vine of the law, that the people of this Commonwealth raise, tend, prune at their pleasure and need.”  (3.20.13 Hallowich v. Range Resources)

The problem that the Community Bill of Rights addresses is that, while the state Legislature and the United States government have the power to prohibit fossil fuel development, they have chosen not to use it.

But their failure to act hasn’t stopped the public endangerment.

So local communities of people –  like the residents of State College – must and are stepping up to stop the threat ourselves, directly, because we have a moral obligation to protect ourselves and our children, whether the current unjust body of public endangerment law recognizes that moral obligation or not.

It’s true that these issues might ultimately be decided in the courts.

But it’s also true that, like segregation and women’s disenfranchisement and a host of other basic civil rights issues, judicial action will be driven by direct action, like the Community Bill of Rights and our community-based defense of those rights.

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