Allentown Residents for Clean Air Renews Court Fight for Clean Air Ordinance

FOR IMMEDIATE RELEASE
6/6/2014

Allentown Residents for Clean Air Renews Court Fight for Clean Air Ordinance

ALLENTOWN – Members of Allentown Residents for Clean Air (ARCA) filed a motion in the Lehigh County Court of Common Pleas to bring a clean air ordinance to the Allentown voters.  Last year, ARCA members collected nearly 3,500 signatures, exceeding the 2,000 signature requirement for Allentown voters to put an initiative on the ballot.  The Allentown Clean Air Ordinance initiative would require any company building a new incinerator in the city to continuously monitor about 20 air pollutants, release the emissions data to a website real-time, and to cap emissions for four of those pollutants.

Only one company currently aims to build an incinerator in Allentown: Delta Thermo Energy A, LLC.  They hope to find adequate investors to start building their proposed facility soon, which would burn 150 tons per day of processed trash and sewage sludge.  Delta Thermo Energy was recently awarded air pollution and waste permits by the state Department of Environmental Protection (DEP).  The air permit requires only five pollutants to be monitored on a continuous basis, plus the darkness of the smoke and the global warming pollutant, CO2 — far short of what the Allentown Clean Air Ordinance would require.

Last October, the court refused to compel the county Board of Elections to put the ordinance on the ballot, siding with the county and Delta Thermo Energy’s claims that the ordinance is not legal because it requires approval from the state DEP.  That decision was not technically final, however, and could not be appealed for that reason.  The motion for summary judgment filed with the court seeks a final decision from the court.

ARCA members, including Rich Fegley, argue in a detailed 53-page brief that state law grants local governments the power to adopt their own stricter air pollution laws without needing DEP approval, and that such laws are needed in Allentown because the city is 14th worst in the nation for sooty-air and is the nation’s 11th worst asthma capital.

This motion introduces new arguments from a Pennsylvania Supreme Court case decided in late December, in which the state’s highest court struck down major parts of Act 13, a 2012 law that the court said went too far in supporting the oil and gas industry.  The law, designed to support hydraulic fracturing (“fracking”) for natural gas, overrode local governments’ rights to adopt any sort of ordinance to restrict gas industry development.  For the first time, the court found that the rights to clean air and pure water in the Pennsylvania constitution can be enforced to protect the rights of the people.  It also found that the Commonwealth (including local governments) has a duty to protect these rights.

“If the Pennsylvania Supreme Court can find that our constitutional rights to clean air and water make it illegal for the state to take actions that interfere with those rights, then surely the constitution backs up the clear language in our state law that gives Allentown the authority to adopt its own clean air ordinance. The highest court in the state has clarified that municipalities are obligated to protect the health and welfare of citizens, and that environmental rights are guarantees that have to be protected at every level of government.” says Breena Holland, political science professor at Lehigh University.

The motion also argues that Delta Thermo Energy and Lehigh County misrepresented election law to the county court.  These parties convinced the court last year that Boards of Election are empowered to keep an ordinance off of the ballot if they think it’s not legal.  However, ARCA members’ motion argues that these cases say the opposite.  “Pennsylvania’s law is clear on this,” says Diane Teti, one of the plaintiffs.  “Boards of Elections are empowered to make sure that signatures and notarizations are valid and sufficient, but that’s it.  There is no dispute that we met those requirements, and the Board of Elections is required to put it on the ballot.  Legality of ordinances is for the courts to decide.”

And decide they will.  The Lehigh County Court of Common Pleas has given Delta Thermo Energy and the Board of Elections until July 1st to respond, after which the court will make a final decision.

“This fight is not over,” says Fegley.  “No incinerator will be built in Allentown, and if we have to appeal this all the way to the Pennsylvania Supreme Court to bring our right to clean air to the Allentown voters, we will.”

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Sources:

Motion for Summary Judgment Brief:
http://stoptheburn.org/wp-content/uploads/2014/06/2014-06-01-ARCA-final-brief.pdf

Pennsylvania Supreme Court Ruling on Act 13:
http://www.pacourts.us/assets/opinions/Supreme/out/J-127A-D-2012oajc.pdf

Asthma ranking: “Asthma Capitals 2013,” Asthma and Allergy Foundation of America. http://www.asthmacapitals.com ;http://www.aafa.org/pdfs/2013_AC_FinalPublicList1.pdf