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Judge rejects appeal to get clean air law on ballot

By Randy Kraft, WFMZ.com Reporter, RKraft@wfmz.com
Published On: Oct 11 2013 02:50:20 PM CDT
Updated On: Oct 11 2013 06:31:02 PM CDT
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HARRISBURG, Pa. -

A Commonwealth Court judge has dismissed with prejudice an appeal attempting to get a proposed clean air ordinance for Allentown on November's election ballot.

That means the long struggle by some Allentown residents to get it on the ballot has been lost.

The appeal was a last-ditch attempt to reverse an Aug. 27 decision by the Lehigh County election board, which refused to put the ordinance on the ballot.

The legal case revolved around whether the three-member election board was required to put the clean air initiative on the ballot or whether it had the discretion to reject it as invalid.

The order issued Thursday by Senior Judge Keith Quigley maintains court rules in Pennsylvania do not allow such appeals to an appellate court.

"I'm happy with the decision," said Atty. John Ashcraft, assistant county solicitor. "It vindicates the election board's ability to examine questions for their validity that they meet legal requirements."

"It's shocking how many times the system has failed the people of Allentown this year," said a disappointed Atty. Mike Ewall, author of the proposed ordinance. 

"This ruling, like so many others, is on an obscure technicality, saying that we don't have a right to appeal -- but if we had won, the other side is allowed to appeal."

On Sept. 30, Lehigh County Judge Michele Varricchio refused to overturn the election board's decision against the clean air ordinance.

In a footnote to his order, Quigley wrote: "Even if we had addressed the merits of this action, it is apparent that the trial court reached the correct conclusion and we would have affirmed the trial court's order on the basis of the well-reasoned opinion of Judge Michele A. Varricchio."

Ewall called Quigley's footnote shocking, brazen and irresponsible. He argued Varricchio's opinion "was far from well-reasoned" because it failed to point out how the proposed ordinance was in conflict with state law.

"It's a shame that a court is unwilling to put reasoned arguments behind its undemocratic actions,"  said Ewall.

The appeal of Varracchio's ruling was filed on behalf of Allentown residents Richard Fegley, Diane Teti, Edward Beck and Marvin Wheeler.

They are members of Allentown Residents for Clean Air, which collected 2,175 signatures of city voters to get the proposed ordinance on the ballot.

They wanted city residents to have the opportunity to decide if the proposed ordinance would become law in Allentown, following requirements in the city's charter to get it on the ballot.

It went to the election board after City Council declined to adopt it as a new law.

Ashcraft said it also was good to win the appealed case "on the environmental law issue."

The election board's brief explanation for its rejection stated the proposed ordinance did not "properly recognize and account for the Department of Environmental Protection’s mandated approval role."

Ewall said the Commonwealth Court decision indicates that the courts are ready to strip away rights under Pennsylvania's Air Pollution Control Act, which allows local governments  to pass their own clean air laws that are more stringent than the state's laws.

"No trash and sewage sludge incinerator should be tolerated anywhere, no less in the heart of a city," said Ewall, who is founder and director of the Philadelphia-based Energy Justice Network and helped organize the Allentown initiative.

Ewall's 15-page proposed ordinance was written to impose stringent controls on a waste-to-energy incinerator plant that will be built by Delta Thermo Energy next to the Lehigh River in Allentown.

Pollution controls mandated in that ordinance would have made the Delta Thermo plant much more expensive to build, if it could have been built at all.

Lehigh County Executive Matthew Croslis, who serves on the election board, also weighed in on the decision by the appeals court judge. 

"The decisions of the Commonwealth Court and Judge Varricchio should put to rest all of the emotionally charged rhetoric that has surrounded this issue since the election board meeting on August 27," said Croslis. "There is no crisis of democracy and the election board is not usurping Allentown's sovereignty.

"The decision of the election board was not politically motivated and was in no way influenced by deep-pocketed politicians or by the attorneys on either side of the issue.

"The election board has a responsibility to all voters.  The courts clearly upheld the authority of the board to review the validity of ordinances and questions that will be placed on the ballot."