CITIZEN MOVEMENTS THAT MADE A DIFFERENCE: IN 2010 IN PENNSYLVANIA, XTO DRILLS IN FLOODPLAIN, SPARKS CHANGES IN REGULATIONS

CITIZEN MOVEMENTS THAT MADE A DIFFERENCE: IN 2010 IN PENNSYLVANIA, XTO DRILLS IN FLOODPLAIN, SPARKS CHANGES IN REGULATIONS.

We take this moment to celebrate few instances where individual citizens and grass root organizations made a difference in protecting human health & the environment.

In 2009, XTO Energy Inc. (a subsidiary of ExxonMobil Corporation) and another company, Stone Energy, were allowed to drill Marcellus Shale wells in floodplains of two Pennsylvania waterways -Muncy Creek and Wyalusing Creek, respectively. In January 2010, heavy rains hit northern Pennsylvania and several streams and rivers experienced flooding events, including the creeks where the Stone Energy and the XTO wells were located.

Figure 1: Flooding in Wyalusing Creek where Stone Energy fracking well pads were located.

Local environmental organizations and citizens were mobilized out of concern for the ability of these companies to locate wells in sensitive ecological area. "The handling of fracking chemicals and highly contaminated drilling wastewater in floodplains is an environmental disaster waiting to happen. It has to stop," said Matt Ehrhart of the Chesapeake Bay Foundation. "Permitting well pads in floodplains causes a very serious threat ofpollution."

Chesapeake Bay Foundation website. "CBF and TU Call for Ban on Marcellus Gas Wells in Floodplains after Incidents In Susquehanna & Lycoming Counties" Feb. 1, 2010. http://www.cbf.orglPage.aspx?pid= 1651

Chesapeake Bay Foundation subsequently launched a lawsuit challenging the Pennsylvania DEP's permitting process, charging that permits were being expedited and were not receiving the scrutiny necessary to ensure that protections were in place to prevent pollution. In 2011, DEP announced it would "no longer offer expedited review ofpermit applications for projects that have the potential to discharge sediment and runoff to exceptional-value or high-quality watersheds, have well pads that lie within floodplains or would take place on contaminated lands. Pennsylvania Department ofEnvironmental Protection. Jan. 20, 2012. "DEP accepts public comment on oil and g!lS erosion control permits," News Release. http://www.porta1.state.pa.us/portal/server.pt/community/newsroomlI4287?id= 19225&typeid= 1

EXCERPTS FROM PENNSYLVANIA’S SUPREME COURT DECISION IN FINDING THAT ACT 13 WAS MOSTLY UNCONSTITUTIONAL AND THAT SPECIFICALLY SECTIONS 3215(B)(4), 3215(D), 3303, AND 3304 VIOLATE THE ENVIRONMENTAL RIGHTS AMENDMENT.

The litigation implicates, among many other sources of law, a provision of this Commonwealth’s organic charter, specifically Section 27 of the Declaration of Rights in the Pennsylvania Constitution, which states:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people. PA. CONST. art. I, § 27 (the “Environmental Rights Amendment”).

Following careful deliberation, this Court holds that several challenged provisions of Act 13 are unconstitutional, albeit the Court majority affirming the finding of unconstitutionality is not of one mind concerning the ground for decision.

We believe that the oil and gas the Constitution constrains this Court not to be swayed by counter-policy arguments where the constitutional command is clear. In this sense, the Commonwealth fails to respond in any meaningful way to the citizens’ claims that Act 13 falls far short of providing adequate protection to existing environmental and habitability features of neighborhoods in which they have established homes, schools, businesses that produce or sell food and provide healthcare, and other ventures, which ensure a quality of human life. In our view, the framers and ratifiers of the Environmental Rights Amendment intended the constitutional provision as a bulwark against enactments, like Act 13, which permit development with such an immediate, disruptive effect upon how Pennsylvanians live their lives. To comply with the constitutional command, the General Assembly must exercise its police powers to foster sustainable development in a manner that respects the reserved rights of the people to a clean, healthy, and esthetically-pleasing environment.

Moreover, the Commonwealth is now over three centuries old, and its citizens settled the territory and built homes and communities long before the exploitation of natural gas in the Marcellus Shale Formation became economically feasible. Oil and gas operations do not function autonomously of their immediate surroundings. Act 13 emerged upon this complex background of settled habitability and ownership interests and expectations.

The type of constitutional challenge presented today is as unprecedented in Pennsylvania as is the legislation that engendered it. But, the challenge is in response to history seeming to repeat itself: an industry, offering the very real prospect of jobs and other important economic benefits, seeks to exploit a Pennsylvania resource, to supply an energy source much in demand. The political branches have responded with a comprehensive scheme that accommodates the recovery of the resource. By any responsible account, the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.

As we have explained, Pennsylvania has a notable history of what appears retrospectively to have been a shortsighted exploitation of its bounteous environment, affecting its minerals, its water, its air, its flora and fauna, and its people. The lessons learned from that history led directly to the Environmental Rights Amendment, a measure which received overwhelming support from legislators and the voters alike. When coal was “King,” there was no Environmental Rights Amendment to constrain exploitation of the resource, to protect the people and the environment, or to impose the sort of specific duty as trustee upon the Commonwealth as is found in the Amendment.

Pennsylvania’s very real and mixed past is visible today to anyone travelling across Pennsylvania’s spectacular, rolling, varied terrain. The forests may not be primordial, but they have returned and are beautiful nonetheless; the mountains and valleys remain; the riverways remain, too, not as pure as when William Penn first laid eyes upon his colonial charter, but cleaner and better than they were in a relatively recent past, when the citizenry was less attuned to the environmental effects of the exploitation of subsurface natural resources. But, the landscape bears visible scars, too, as reminders of the past efforts of man to exploit Pennsylvania’s natural assets.

Pennsylvania’s past is the necessary prologue here: the reserved rights, and the concomitant duties and constraints, embraced by the Environmental Rights Amendment, are a product of our unique history.

Remarkably, if a drilling permit that contains Department-imposed conditions is appealed, it is not the industry, but the Department, that “has the burden of proving that the conditions were necessary to protect against a probable harmful impact of [sic] the public resources.” 58 Pa.C.S. § 3215(e)(2). Other parts of Section 3215 provide similar measures for granting waivers or variances with respect to development-sensitive features, such as water wells and floodplains. See 58 Pa.C.S. § 3215(a), (f). In each instance, development and disturbance of the environment is preferred over the natural state, along the same statutory approach articulated in Section 3215(b). The citizens do not assert separate claims premised upon either subsection (a) or (f) of Section 3215; nevertheless, in light of our present decision, enforcement of these provisions obviously is constitutionally suspect.

In a further blanket accommodation of industry and development, Section 3215(d) limits the ability of local government to have any meaningful say respecting drilling permits and well locations in their jurisdictions. Under Act 13, a municipality in which an unconventional gas well is proposed may submit written comments “describing local conditions or circumstances” which the municipality would like the Department of Environmental Protection to consider. But, the Department is not obligated to act upon local comments, although it may do so. In another remarkable provision, the Act further provides that, “[n]otwithstanding any other law, no municipality . . . shall have a right of appeal or other form of review from the [D]epartment’s decision.” 58 Pa.C.S. § 3215(d).