With a week left before Election Day, a State College Borough Council majority has begun lobbying against a proposed borough-charter amendment.

The amendment would add an environmental bill of rights and a ban on commercial natural-gas drilling to the borough charter, the municipality's governing document. Groundswell PA, a local environmental-advocacy group, has led the charge for the amendment.

Groundswell-affiliated activists gathered just more than 1,000 borough-resident signatures this summer, landing the proposed amendment as a referendum item on the Nov. 8 ballot.

But in a weekend letter published in the Centre Daily Times, five Borough Council members wrote that the referendum's passage could bear dire consequences.

The problem isn't with safeguarding the environment, but with the procedural approach, they wrote. The matter should be addressed as an issue of municipal policy-making, not through a borough-charter amendment that could open the borough to litigation, they wrote.

Council members Tom Daubert, Ron Filippelli, Theresa Lafer, Silvi Lawrence and Jim Rosenberger signed the letter. Their colleagues Peter Morris and Don Hahn did not.

Reached this week, Lafer said she thinks all council members would support the basic concepts of environmental rights and a local hydraulic-fracturing ban, even if only as a symbolic measure.

But such an effort should be handled as any other regular matter of policy -- that is, through the council's local legislative process, not through a referendum-driven charter amendment, Lafer said.

She said revising the borough charter, meant to set parameters for municipal-governmental structure, could put State College in conflict with elements of the Pennsylvania and U.S. constitutions.

Borough solicitor Terry Williams underscored that point to council members last week, Lafer said.

"I've got news for you," she said. "If you get out there and vote (for council members), you are the government. I think far too many people have forgotten that."

Lafer also said she's offended that "no one came to us (Borough Council) and asked us to pass" measures on environmental rights and gas drilling.

Williams, reached by phone, said the question of environmental preservation and gas drilling is "more a legislative function than a government (structure) function."

"It seems not to be the type of (borough) charter amendment that one would anticipate," Williams said.

Specifically, Williams noted that the proposed charter amendment would attempt to invalidate, within borough limits, gas-exploration permits issued via state entities.

That could be problematic -- and open the borough to litigation -- because both the state and federal constitutions have supremacy clauses, he said. Those clauses allow the constitutions to supersede contradictory governing documents at the local level, he said.

Williams said additional litigation against the borough could arise from the broader environmental bill of rights, which would assert local rights to clean water and clean air -- including for ecosystems. It's unclear exactly what that legislation means or how it would be enforced, he said.

"I think there's always a concern when you're amending the (borough) charter," Williams said. " ... Pennsylvania does not have referendum-style government the way California does. There are very few things you can have a referendum on at the local level. A charter amendment happens to be one of them."

Council members, in their CDT letter, noted that many Pennsylvania municipalities are pursuing local ordinances -- "appropriately" through legislative processes -- specifically to ban hydraulic fracturing. That's the practice wherein deep-underground rock is disrupted to release natural gas.

"These actions are appropriately legislative in character," the council members wrote, "and ultimately the decisions about the validity of such ordinances ... will be determined by the state Legislature or the appellate courts of Pennsylvania."

State College council member Don Hahn did not sign the letter. He told StateCollege.com he believes it's "a fine letter" -- he just didn't feel comfortable putting his name on something that someone else wrote, Hahn said.

His own concern is "that the (referendum) proposal is not only contrary to state federal and state laws; it also seeks to nullify them," he said.

In particular, Hahn -- who is a lawyer -- said the charter amendment would block the rights afforded energy companies under the commerce provisions of the U.S. Constitution.

"In other words, it would have the home-rule charter nullifying (parts) of state law and portions of the Constitution," he said.

Peter Morris, the other council member who did not sign the CDT letter, could not be reached immediately this week.

But Braden Crooks, who founded Groundswell, pointed to Pittsburgh City Council's willingness to put a gas-drilling question on city ballots there. It's important that citizens "bring change to their communities" directly, he said.

"I wouldn't be against the Borough Council passing something like this," Crooks said. "But I think their argument that the citizens shouldn't vote for it (via) a charter change is out of step with what this legislation calls for -- and really with the current political climate."

In fact, he went on, the council majority's position "seems to be anti-populist."

Crooks said the community environmental bill of rights is so important that it belongs precisely in the borough charter.

"I don't think the council is against the core ideas of this legislation. ... I just think that their opinion is sort of out of step with the way this should be happening," Crooks added. "Some of them don't seem to think the people should have the vote. I do."

His organization is planning another pro-amendment rally for 4:45 p.m. Friday at the Allen Street Gates, he said.

The full text of the five council members' letter is below. A blog post written by Crooks is linked here. The full text of the proposed charter amendment is available via this PDF file. And links to earlier StateCollege.com coverage are posted below, as well.

Earlier coverage

• Proposed Gas-Drilling Ban, Environmental-Rights Question Set for State College Ballot (Aug. 30, 2011)

• Environmental-Rights Referendum Appears Likely for State College Ballot (Aug. 17, 2011)

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Letter sent to the Centre Daily Times:

On Election Day the voters of State College Borough are being asked to consider a Charter amendment to add a community bill of rights which in part bans commercial natural gas extraction. The full text of the bill of rights, which may be obtained at the borough office, will not be available on the ballot.. It contains much broader language than will be on the ballot and goes well beyond the issue of "fracking." This 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 or whether or not local government has the power to regulate these activities will be determined by the state legislature or the appellate courts of Pennsylvania.

The State College Borough Home Rule Charter adopted under authority of state law specifies the powers and form of local government. Adopted in November of 1973, the Home Rule Charter has allowed the Borough to engage in many activities to foster numerous programs which it would not have been permitted to do if it were not a Home Rule municipality. The Charter deals with local government operation, procedures and financial requirements. It provides the framework for passing regulations and programs. It does not contain legislation such as zoning, traffic, prohibition of certain conduct or the establishment of numerous programs which the Borough has used over the years for the betterment of the members of the community. These are legislative matters and are handled by Borough ordinances adopted through the ordinary votes of Borough Council.

The proposed referendum is an attempt to legislate through amendment of the Home Rule Charter. It is vitally important that the Borough Charter not be used for legislative purposes or to promote a point of view on any given issue.

Under the circumstances, we the undersigned members of Borough Council urge that the voters reject the Charter Amendment, allowing Council to take up the issue of natural gas exploration regulation as part of its legislative function.

Ronald Filippelli
Thomas Daubert
Theresa Lafer
Silvi Lawrence
James Rosenberger