Supreme Court prostitution ruling forces policy issue on Harper; Canada’s prostitution laws unconstitutional, Supreme Court rules

Supreme Court prostitution ruling forces policy issue on Harper by Bruce Cheadle, The Canadian Press, December 22, 2013, The Globe and Mail
A Conservative government that hoped to restore its fortunes in 2014 by talking about pipelines, international trade and victims of crime now will have to deal with the world’s oldest profession. … The court gave Parliament one year to come up with a new legislative scheme before the old laws are unenforceable.

While sex workers cheered at the Supreme Court in the hopes the unanimous court judgment ultimately leads to the decriminalization of prostitution, there seems little prospect of that under a government led by Prime Minister Stephen Harper. “We view prostitution as bad for society and we view its effects as particularly harmful for our communities and women, and particularly for vulnerable women, and we will continue to oppose prostitution in Canada,” Harper said in March 2012 after the Ontario Court of Appeal set in motion Friday’s decision by striking down parts of the federal law.

It’s worth noting that for same-sex marriage and abortion, the courts — not politicians — led the way to the current status quo in Canada.

Alan Young, the Osgoode Hall law professor who argued the case at the Supreme Court, said he’s no fan of “Stephen Harper’s track record on criminal justice issues” — but then added a caveat that Harper himself could probably endorse. “I would prefer if another prime minister and another party were to look at this issue,” said Young. “But you play the cards you’ve been dealt.” [Emphasis added]

Jessica Ernst Appeals Court Ruling, Oil patch consultant challenges decision granting Alberta Energy Regulator immunity from damage claims by Andrew Nikiforuk, December 21, 2013, The Tyee.ca

The Pennsylvania Supreme Court, for example, just declared key parts of the state’s Marcellus Shale drilling law (Act 13) unconstitutional last Thursday, including a provision that allows gas companies to drill anywhere.

“By any responsible account,” Chief Justice Ronald Castille wrote, “the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children and the future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.” ]

Prostitution laws struck down by top court, leaving tough-on-crime Conservatives in a pickle by Tobi Cohen, PostMedia News, December 21, 2013, Edmonton Journal
With the future of the world’s oldest profession now squarely on the national agenda, Justice Minister Peter MacKay on Friday said the government won’t sit idly by. “We are reviewing the decision and are exploring all possible options to ensure the criminal law continues to address the significant harms that flow from prostitution to communities, those engaged in prostitution, and vulnerable persons,” he said in a written statement. “We are committed to the safety of all Canadians and the well-being of our communities.” … But the unanimous judgment of the top court…will pose a significant challenge for the federal Conservative government.

Timeline compiled by the Canadian Press

1982: Charter of Rights and Freedoms signed into law.

2009: An Ontario Superior Court hearing opens in a suit brought by three former and active sex-trade workers seeking to overturn the prostitution laws.
2010: Judge Susan Himel strikes down the three key provisions of the laws, saying they were unconstitutional.
2011: Ontario Court of Appeal holds three-day hearing on government appeal of Himel decision.
2012: The Appeal Court upholds Himel on the bawdy house law, modified the living on the avails law to specifically preclude exploitation and reversed her on soliciting.
2013: The Supreme Court throws out all three provisions as violating constitutional guarantees to life, liberty and security of the person. The justices give Parliament a year to craft a replacement law. [Emphasis added]

ALERT – Prostitution laws unconstitutional, Supreme Court rules [headline later changed to: Federal government ‘concerned’ at Supreme Court decision to strike down prostitution laws, Legal brothels could be reality within a year] by Tobi Cohen, Postmedia News, December 20, 2013, Calgary Herald
Canada’s highest court has declared prostitution laws unconstitutional and has given Parliament a year to make them Charter-compliant should it wish to continue to impose limits on the sex trade. It means being caught in a bawdy-house, living off the profits of another’s prostitution and soliciting sex in public will remain crimes until December 2014, but that legal brothels could be a reality in Canada by next Christmas should Parliament decide to do nothing. In a landmark, unanimous ruling Friday, the Supreme Court of Canada found bawdy-house laws that make it a crime to be caught unlawfully in what is essentially a brothel are “grossly disproportionate” to the intent of the law, which is to prevent community nuisance.

“Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes,” wrote Chief Justice Beverley McLaughlin who referenced the case of convicted serial killer Robert Pickton who targeted prostitutes in British Columbia. “A law that prevents street prostitutes from resorting to a safe haven such as Grandma’s House while a suspected serial killer prowls the streets is a law that has lost sight of its purpose.” Living off the profits of prostitution, a law aimed at criminalizing pimping, was found to be “overbroad” in that it also criminalizes those who “increase the safety and security of prostitutes,” like legitimate drivers, managers and bodyguards.

While the Ontario Court of Appeal concluded communicating in public for the purposes of prostitution — a law aimed at Johns who buy sex, prostitutes who sell and anyone who tries to recruit people into the trade in a manner that could be deemed a nuisance to their community — did indeed comply with the Charter of Rights and Freedoms, the top court restored the lower court’s ruling that it does not. The court found the law was “grossly disproportionate” in that it removes the ability of prostitutes to enact safety measures like screening clients in public in order to avoid drunk or potentially violent encounters. “These appeals and the cross-appeals are not about whether prostitution should be legal or not. They are about whether the laws Parliament has enacted on how prostitution may be carried out pass constitutional muster. I conclude that they do not,” McLaughlin wrote. “These restrictions on prostitution put the safety and lives of prostitutes at risk and are therefore unconstitutional.”

The constitutional challenge was brought by current and former sex trade workers Terri Jean Bedford, 54, Amy Lebovitch, 34, and Valerie Scott, 55. The women have argued Canada’s three prostitution laws violate their right to life, liberty and security of the person and their right to freedom of expression under the Charter of Rights and Freedoms. While prostitution is legal in Canada, it is illegal to reside in or be caught unlawfully inside a bawdy-house, or brothel. It is also illegal to live off the profits of another person’s prostitution, a law typically aimed at pimps, and it is illegal to communicate in public for the purposes of prostitution. The women have all worked, at one time or another, as street prostitutes, masseuses, escorts, dominatrices, brothel owners and as advocates for sex-trade workers. They’ve also experienced violence at some point, and have taken a variety of precautions to improve safety, including vetting new clients in public spaces, verifying client phone numbers and credit card information, hiring drivers and body guards and turning down seemingly intoxicated clients. Federal and Ontario lawyers argued the intent of Parliament is to place limits on prostitution and suggest the Ontario Court of Appeal went too far when it struck down the Criminal Code ban on bawdy-houses on the grounds that it endangers sex workers by forcing them to work outside. [Emphasis added]

Supreme Court strikes down Canada’s prostitution laws by Sean Fine, December 20, 2013, The Globe and Mail
The Supreme Court of Canada has struck down the country’s major prostitution laws, saying that bans on street soliciting, brothels and people living off the avails of prostitution are arbitrary and create severe dangers for vulnerable women. Chief Justice Beverley McLachlin, writing for a unanimous court, stressed that the ruling is not about whether prostitution should be legal or not, but about whether Parliament’s means of controlling it infringe the constitutional rights of prostitutes.

“The prohibitions all heighten the risks,” she said. “They do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks.”

The court suspended its ruling for one year to give Parliament time to respond. The ball is now back in the court of Justice Minister Peter MacKay, who needs to decide whether to adopt new prohibitions and if so, how to ensure those prohibitions do not fall afoul of the court.

The ruling is one of the most significant since the Canadian Charter of Rights and Freedoms was enacted in 1982 and will alter a longstanding feature of the Canadian legal landscape, much like previous Charter rulings on gay marriage and abortion did. Laws against brothels and pimps go back to pre-Confederation days.

In the ruling, the Supreme Court — with a majority of judges appointed by Prime Minister Stephen Harper — insisted the government not put vulnerable people at severe risk. That is much the same line the court established two years ago — when only two Harper appointees sat on the nine-member court — in unanimously ordering the federal government not to close down a Vancouver clinic at which people could inject illegal drugs under medical supervision.

The ruling does not necessarily mean open season for prostitution. The Conservative government could still craft new laws that make prostitution or related offences criminal activities. … Terri Jean Bedford, one of three current and former prostitutes who brought the challenge to Canada’s prostitution laws, said in court documents she was abused as a child, entered prostitution at 16 to pay for her drug addictions and those of her 37-year-old boyfriend, and was “raped and gang-raped too many times to talk about” as a street prostitute in Winnipeg, Calgary and Vancouver.

The landmark Supreme Court of Canada ruling weighed whether the laws put vulnerable women at increased risk of violence, even murder, against Parliament’s role to make choices in how to best protect individuals and communities. It came after six years of legal skirmishing in the lower courts and 25,000 pages of evidence. Government lawyers argued that prostitution is an activity prostitutes choose and that requires close regulation to prevent it from becoming a nuisance to communities and a front for drug trafficking and abuse of minors.

The three sex workers spearheading the litigation – Ms. Bedford, Amy Lebovitch and Valerie Scott – argued that the laws force prostitutes to operate in dangerous conditions. The crux of their challenge was in Charter protections of life, liberty and security. An Ontario trial judge and five Ontario Court of Appeal judges had already largely agreed that prostitutes would be safer if they had the right to set up brothels and hire staff to protect them. The appeal court gave one victory to the Crown in 2012, ruling in a 3-2 split that communicating for the purposes of prostitution will remain illegal – a finding that Alan Young and his co-counsel, Marlys Edward and Daniel Sheppard, are asking the Supreme Court to reverse. They faced a phalanx of opponents determined to uphold moral values and prevent communities being disrupted by transactions of commercial sex. Federal and Ontario lawyers, aided by a coalition of religious groups, maintained that prostitutes have voluntarily chosen a risky lifestyle that degrades themselves and the community as a whole. [Emphasis added]

Supreme Court strikes down Canada’s prostitution laws by Sean Fine, December 20, 2013, The Globe and Mail
The ruling is one of the most significant since the Canadian Charter of Rights and Freedoms was enacted in 1982…. In the ruling, the Supreme Court  — with a majority of judges appointed by Prime Minister Stephen Harper — insisted the government not put vulnerable people at severe risk. [Emphasis added]

Reach of unanimous ruling extends beyond prostitution issue by Sean Fine, December 20, 2013, The Globe and Mail
Laws that heighten the dangers to vulnerable prostitutes violate Canada’s basic values and cannot stand, the Supreme Court of Canada has ruled. The unanimous 9-0 ruling shows that the country’s most influential court, which now has a majority of its members appointed by Prime Minister Stephen Harper, is as unwilling as ever to defer to government when it perceives government using criminal laws in ways that put vulnerable people at risk of severe harm or death.

The ruling is one of the biggest since Canada’s criminal law of abortion was struck down in 1988. A similar principle was at the heart of that case: Criminalizing people at risk will not be tolerated if it is done in such a way as to heighten risks. In this case, Ottawa argued that prostitutes bring the risks on themselves, but the court accepted that vulnerable people are not always in a position to avoid risk. “Many prostitutes have no meaningful choice,” Chief Justice Beverley McLachlin wrote for the court.

The court’s willingness to spend its political capital on the protection of prostitutes, by striking down laws with roots that go back decades, and even to pre-Confederation days, sends an unmistakable message to the Conservative government: Any new laws would have to “take seriously the safety concerns of people who are engaged in sex work,” said Elaine Craig, a law professor at Dalhousie University.

Justice Minister Peter MacKay made it clear that he intends to continue to criminalize the sex trade. [Peter MacKay and Stephen Harper would better protect vulnerable Canadians and communities by criminalizing hydraulic fracturing, as France so wisely did] The government is “exploring all possible options to ensure the criminal law continues to address the significant harms that flow from prostitution to communities, those engaged in prostitution and vulnerable persons,” he said.

The court suspended its ruling for a year, though it is doubtful that police and prosecutors will continue laying charges, which in Canada’s backlogged lower courts could take more than a year to reach trial. “Current laws remain in place, so we have no plan to speak about it now,” said Constable Brian Montague, a spokesman for the Vancouver Police Department, which he said already has policies that “reflect” the court’s concerns. “The safety of sex workers is a priority for us and enforcement is often a last resort. Unfortunately it is still too early to speculate exactly how any changes to law will affect the policies and procedures of the VPD.” The court stressed that it offered no opinion on whether prostitution should be legal. It said most countries do attempt to control prostitution because of its potential for harm. “Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes,” Chief Justice McLachlin said in the ruling. …

The unanimity tells Mr. MacKay that pleas for deference to legislators will fall on deaf ears if a law’s purposes – in this case, controlling neighbourhood nuisances – are out of whack with the damage to those who are unable to get out of harm’s way. [Compare this to the damage done to those unable to get out of harm’s way by hydraulic fracturing] It is much the same message as the court delivered two years ago when the federal government tried to close down Insite, a Vancouver clinic at which addicts can inject illegal drugs under a nurse’s supervision. In that case, the court, with only two members appointed by Mr. Harper, was unanimous that the government could not act in ways that put vulnerable addicts at risk of death. Chief Justice McLachlin explained how the current laws make prostitutes vulnerable: The ban on brothels prevents them from working in safer indoor locations. The law against living off the avails of prostitution is intended for pimps, but also bans drivers, managers, bodyguards, accountants and receptionists. The ban on street solicitation prevents prostitutes from weeding out dangerous clients. [Emphasis added]

Supreme Court strikes down Canada’s anti-prostitution laws as Charter breach by Mike Blanchfield with files from Bill Graveland in Calgary, The Canadian Press, December 20, 2013, Calgary Herald
The Supreme Court of Canada started the clock ticking Friday for Parliament to reshape social policy dealing with the world’s oldest profession, as political battle lines were drawn. In a unanimous 9-0 ruling on Friday, the high court struck down the country’s prostitution laws, giving Parliament a year to produce new legislation. That means prostitution-related offences will remain in the Criminal Code for one more year. Justice Minister Peter MacKay said the government was “concerned” by the ruling, and is “exploring all possible options to ensure the criminal law continues to address the significant harms that flow from prostitution to communities, those engaged in prostitution, and vulnerable persons.” Meanwhile, Employment Minister Jason Kenney raised the spectre of judicial activism — saying legislators, not judges, should be making the law. It’s a topic Prime Minister Stephen Harper has complained about as recently as this week. “My own view is the judiciary should be restrained of the exercise of overturning a democratic consensus. Having said that we of course respect the independence of the judiciary and its role,” said Kenney.

The high court struck down all three prostitution-related prohibitions — against keeping a brothel, living on the avails of prostitution and street soliciting — as violations of the constitutional guarantee to life, liberty and security of the person. The ruling comes more than two decades after the court last upheld the anti-prostitution laws. It represents a historic victory for sex workers — mainly women — who were seeking safer working conditions.

Advocates for sex workers asked for a seat at the table in the coming year as the government crafts a response. But they and their advocates were skeptical that the Harper Conservatives, known for their tough-on-crime agenda, would be receptive. The Evangelical Fellowship of Canada has the ear of the government, proposing to criminalize pimps and johns, but not prostitutes themselves. That makes the church group an unlikely ally of the Women’s Coalition for the Abolition of Prostitution, which backs this so-called “Nordic model” that has found favour in Sweden, Norway and Iceland. That pairs those two groups against the sex workers who won Friday’s case and who are calling for all-out decriminalization. “Our fate should not be decided by the church. We are a secular nation,” said former prostitute Valerie Scott of Toronto, one of three principals in the case, along with retired dominatrix Terri-Jean Bedford and Vancouver sex worker Amy Lebovitch.

Chief Justice Beverley McLachlin, writing on behalf of the court, noted that Canada’s social landscape has changed since the last time the high court considered this issue in 1990. “These appeals and the cross-appeal are not about whether prostitution should be legal or not,” she wrote. “They are about whether the laws Parliament has enacted on how prostitution may be carried out pass constitutional muster.

“I conclude that they do not.”

In the 1990 reference, the Supreme Court upheld a ban on street solicitation, but the two women justices on the court at that time dissented. This time, all six male Supreme Court justices sided with their three female colleagues. The decision upheld last year’s Ontario Court of Appeal ruling that said the law banning brothels exposed sex workers to added danger by forcing them onto the streets. “The harms identified by the courts below are grossly disproportionate to the deterrence of community disruption that is the object of the law,” McLachlin wrote. “Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes.” Sex-trade workers argued that much has changed since the high court last considered prostitution, including the horrific serial killings of prostitutes by Robert Pickton in British Columbia. … As for communication for the purposes of prostitution, the high court noted that the law is not intended to eliminate prostitution, but to take it out of public view so it will not be seen as a nuisance. In weighing that balance, the high court concluded “that the harm imposed by the prohibition on communicating in public was grossly disproportionate to the provision’s object of removing the nuisance of prostitution from the streets.” Parliament could ask the Supreme Court for an extension on the effect of the ruling, if it has tabled legislation but can’t meet the one-year deadline.

The lawyer for the victorious sex workers, Toronto law professor Alan Young, hailed the ruling as “a resounding victory for the rule of law, and a victory for liberty and security of the person and finally a long overdue recognition that sex workers are deserving of equal protection of the law.” But he said he was not confident that the current Conservative government would craft an adequate legal response.

Bedford, clad in her trademark long black-leather coat, cracked her whip, mugged for cameras in the vast granite foyer of the Supreme Court and mocked the Tories, as she has done in the past. “Now, the government must tell all consenting Canadians, all consenting adults, what we can and cannot do in the privacy of our home, for money or not, and they must write laws that are fair,” said Bedford. Young said all those affected by the law should come forward to consult with the government in the coming year. Scott said politicians don’t understand “how sex work, works” and should consult meaningfully with those in the trade in the coming year. “They won’t be able to write a half-decent law. It will fail,” she said.

Don Hutchinson, vice president of the Evangelical Fellowship of Canada, said it should still be a crime for pimps and clients to be prosecuted, but not prostitutes. “Our proposal is to bring clarity to the issue,” he said. “Yes, there have been conversations with the Justice Department and with others in the government.”

Scott said she does not want the government to adopt the “failed and extremely dangerous Nordic model,” that has resulted in violence against women in some countries. “The effects are just the same as the old regime we have in Canada.” [Emphasis added]

Serial killer Robert Pickton files defence in lawsuits, denies everything by The Canadian Press, December 20, 2013, Calgary Herald
Serial killer Robert Pickton is again refusing to admit responsibility for his crimes as he files statements of defence in a series of lawsuits against him. The families of several women whose DNA or remains were found on Pickton’s farm launched lawsuits earlier this year targeting Pickton, his brother David, and the provincial and federal governments. Pickton has now filed brief statements of defence, simply saying that none of the facts in the families’ statements of claim are admitted and he opposes granting them relief. The statements of defence are each punctuated with Pickton’s signature, with “Robert — William — Pickton” written in cursive, each name separated with a hyphen. Pickton spent years hunting sex workers in Vancouver’s Downtown Eastside until his arrest in 2002. He is serving a life sentence for six counts of second-degree murder, though the remains or DNA of 33 women were found on his farm. [Emphasis added]

Supreme Court strikes down Canada’s prostitution laws, Parliament has 1 year to bring in new law as Criminal Code provisions remain in place by CBC News, December 20, 2013
In a statement, Justice Minister Peter MacKay said the government would take the time to decide how to address “this very complex matter.”

“We are reviewing the decision and are exploring all possible options to ensure the criminal law continues to address the significant harms that flow from prostitution to communities, those engaged in prostitution and vulnerable persons,” his statement said. MacKay also said there are “a number of other Criminal Code provisions” in place to protect sex-trade workers “and to address the negative effects prostitution has on communities.” The women in the case had argued that the law prevented them from safely conducting their business as sex-trade workers, arguing that hiring bodyguards and drivers, and being able to work in private homes or talk with potential clients in public were important to their safety. “Now the government must tell Canadians, all consenting adults, what we can and cannot do in the privacy of our home for money or not. And they must write laws that are fair,” Bedford told reporters gathered in the foyer of the Supreme Court building in Ottawa on Friday.

One of her co-respondents in the appeal said a new law won’t work. “The thing here is politicians, though they may know us as clients, they do not understand how sex work works,” said Scott. “They won’t be able to write a half-decent law. It will fail. That’s why you must bring sex workers to the table in a meaningful way.” … Scott says new laws should be up to municipalities, not the federal government. “If the Harper government rewrites laws, they will fail and the next generation of sex workers will be right back here. So let’s not be stupid, federal government. Let’s do something progressive, actually.” Scott added that “the sky’s not going to fall in” with Friday’s ruling.

“People said that when women got the right to vote, equal pay, equal rights, and same sex marriage — all of those things, every single one, people said the sky would fall in. It did not. Society is the better for it and society will be the better for sex workers having proper civil and occupational rights.” The women’s lawyer, Alan Young, said it was important to understand the ruling affects “one of the most under-enforced laws in the Canadian Criminal Code. “The fact that people are crying that the law’s been invalidated, [they] don’t understand that the law’s been ineffective and largely just used in a discriminatory way.”

Others condemned the ruling. “It’s a sad day that we’ve now had confirmed that it’s OK to buy and sell women and girls [???] in this country. I think generations to come — our daughters, their granddaughters and on — will look back and say, ‘What were they thinking?,'” said Kim Pate, executive director of the Canadian Association of Elizabeth Fry Societies and a member of the Women’s Coalition for the Abolition of Prostitution. “To say that [prostitution] is a choice when you’re talking about the women we work with is to say that in fact it’s OK to just exploit them,” Pate said. “We’ve never seen men criminalized for buying and selling women [Refer below to Alberta MLA Mike Allen] and girls. We’ve always seen women criminalized for selling themselves. We absolutely object to the criminalization of women. Our position would not interfere with those women who truly have made their choices.”

Don Hutchinson, vice-president and general legal counsel for Evangelical Fellowship of Canada, said his group wants Parliament to come back with a new law that would “criminalize the purchase of sex and provide support services for those who wish to exit the sex trade. “What we’re suggesting is that for the first time in Canada, prostitution would be illegal. The purchase of sexual services or the rental of somebody’s body would become illegal,” Hutchinson said.

Lebovitch, however, said the decision will help protect sex-trade workers. “I am shocked and amazed that sex work and the sex work laws that affect our lives on a daily basis will within a year not cause us harm any more.”

“It’s a huge victory for all the people in Vancouver, all my sisters out there who are going to be safe. It’s just a huge, huge victory. I’m so happy,” added Lorna Bird of the advocacy group Sex Workers United Against Violence. [Emphasis added]

Alberta politician pleads guilty to solicitation of prostitutes in Minnesota by The Canadian Press, December 18, 2013, Calgary Herald
An Alberta politician has pleaded guilty to a charge of trying to hire prostitutes in Minnesota. Court documents filed in St. Paul say Mike Allen entered the plea Monday to a misdemeanour offence. The documents show the Fort McMurray member of the legislature was fined $500 and has to pay an additional $500 in court surcharges and fees. He must also serve one year probation. Allen was originally charged in July with a more serious gross misdemeanour offence following a prostitution sting by St. Paul police. He was on government business when police said he phoned an online ad and agreed to pay $200 for sex with two women. [Emphasis added]

Alberta Premier Alison Redford ‘shocked’ at MLA Mike Allen’s prostitution arrest by Dave Lazzarino, July 18, 2013, Edmonton Sun
Redford said she was “shocked and disappointed” to learn of Allen’s arrest and quickly took the opportunity to distance her government from him. “In terms of that MLA’s conduct, it is more than inappropriate. I was disgusted by it,” Redford said. Allen was arrested Monday in St. Paul, Minnesota, where during a governmental visit to discuss cross-border trade, police say he propositioned an undercover officer posing as a prostitute. “It’s not at all the standard of conduct that I expect from anyone in our caucus. He is no longer a member of our caucus,” Redford said. Allen does remain an MLA…. [Emphasis added]

Supreme Court strikes down Canada’s anti-prostitution laws as Charter breach by Mike Blanchfield, The Canadian Press, December 20, 2013, Lethbridge Herald
In the 1990 reference, the Supreme Court upheld a ban on street solicitation, but the two women justices on the court at that time dissented. This time, all six male Supreme Court justices sided with their three female colleagues. … “The harms identified by the courts below are grossly disproportionate to the deterrence of community disruption that is the object of the law,” McLachlin wrote. “Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes.”

[Refer also to:

Pennsylvania Supreme Court declares portions of shale-drilling law unconstitutional by Don Hopey, December 20, 2013, Pittsburgh Post-Gazette
The Pennsylvania Supreme Court declared major provisions of the state’s Marcellus Shale drilling law, Act 13, unconstitutional Thursday, including one that allows gas companies to drill anywhere, overriding local zoning laws. The court’s decision, on a 4-2 vote, also sent back to Commonwealth Court for review and disposition challenges by a physician to the Act 13 provisions that would have prevented doctors from telling patients about health impacts related to shale gas development, and a constitutional challenge that the law benefits a single industry. … In affirming the municipalities’ standing to bring the Act 13 challenge, which was challenged by the state’s attorneys, Chief Justice Castille wrote in the 162-page majority decision that “t]he protection of environmental and esthetic interests is an essential aspect of Pennsylvanians’ quality of life and a key part of local government’s role.” The decision also notes “how remarkable a revolution is worked by this legislation (Act 13) upon the existing zoning regimen in Pennsylvania, including residential zones,” and it questions whether the General Assembly can pass laws inconsistent with the constitutional mandate to protect the environment.

“By any responsible account,” Chief Justice Castille wrote, “the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and the future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.” [Emphasis added]

Hormone-Disrupting Chemicals Linked to Fracking Found in Colorado River by Sandra Postel of National Geographic’s Freshwater Initiative in Water Currents on December 20, 2013, National Geographic
This week, more evidence came in that hydraulic fracturing (or fracking) poses potentially serious risks to drinking water quality and human health. A team of researchers from the University of Missouri found evidence of hormone-disrupting activity in water located near fracking sites – including samples taken from the Colorado River near a dense drilling region of western Colorado. The Colorado River is a source of drinking water for more than 30 million people. The peer-reviewed study was published this week in the journal Endocrinology. … The new findings add urgency to calls for moratoriums on fracking until the risks have been fully assessed and regulations and monitoring put in place to safeguard water supplies and public health.

Colorado, in particular, should exercise the utmost caution. According to a report by Ceres, a Boston-based non-profit organization that educates investors about corporate environmental risks, 92 percent of Colorado’s shale gas and oil wells are located in “extremely high” water stress regions, defined as areas in which cities, industries and farms are already using 80 percent or more of available water. Adding contamination risks to the high volume of water fracking wells require – typically 4-6 million gallons per well – argues strongly for a precautionary approach to future development and a pause in existing production until the full range of environmental health risks can be assessed. But Colorado Governor John Hickenlooper has said the state will sue any city that bans fracking within its borders.  Indeed, in July 2012, the state sued the front-range town of Longmont, which had issued such a ban.

A statement about the new findings of endocrine-disrupting chemicals (EDCs) in waters near fracking sites issued by Concerned Health Professionals of New York, and posted here, concludes with this warning: “These results, which are based on validated cell cultures, demonstrate that public health concerns about fracking are well-founded and extend to our hormone systems. The stakes could not be higher. Exposure to EDCs has been variously linked to breast cancer, infertility, birth defects, and learning disabilities. Scientists have identified no safe threshold of exposure for EDCs, especially for pregnant women, infants, and children.” [Emphasis added]

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