Fracking Requires An Environmental Impact Statement

In the first decision applying the National Environmental Policy Act ("NEPA") to hydraulic fracturing or fracking, a US District Court in California ruled that the Bureau of Land Management (BLM) violated NEPA when it did not perform an Environmental Impact Statement that considered the impacts of fracking on federal lands.

Central California's Monterey Shale Formation is estimated to contain 15 billion barrels of shale oil equal to 64% of the nation's shale oil reserve. Nearly half of the land in California is controlled by various federal agencies.

In this case, BLM sold four leases to allow drilling on 2700 acres of federal land that contained areas responsible for refreshing important drinking water aquifers, was near two drinking water reservoirs, contained high quality streams, and possessed habitat for a number of federally listed endangered species. Two of the leases contained no-surface occupancy (NSO) conditions, and the other two did not.

NEPA requires federal agencies to prepare an Environmental Impact Statement ("EIS") for any major federal action "significantly affecting the environment." An EIS assesses impacts such as affects on air resources, water resources and wildlife, along with alternatives that may avoid or mitigate those impacts.  As a preliminary matter, federal agencies need not prepare a full blown EIS if they find that the action will have no "significant" affect on the human environment ("FONSI").

To allow oil and gas development on land it controls, BLM must follow a three-step process: first, it adopts a land management plan; second, it leases particular parcels of land; and third, it issues drill permits for specific wells. The effect of BLM granting a lease is to afford the lessee a right to develop the resource.  At the permit stage, BLM retains the authority to require the driller to relocate or redesign the operation to protect sensitive resources, but it would not be able to prevent drilling or fracking.

BLM determined that its lease sale would not significantly affect the human environment and that no EIS was necessary.  In making that decision, BLM did not look at the affects of horizontal drilling and fracking on the environment.  BLM instead sought to postpone that consideration until it issued drill permits for specific wells.

For the two leases with NGO provisions, the Court agreed that a NEPA analysis was not required because BLM could still prevent drilling once more information became available.

But for the two non-NGO leases, the Court said that a NEPA analysis was required because otherwise BLM would not be able to avoid serious environmental affects by preventing drilling at the permit stage.

The Court also found that an EIS should have been prepared for the non-NGO leases. BLM did not prepare and EIS because it assumed, based on historical data, that one exploratory well would be drilled on the lease and no other surface activity would take place.  It did so despite recognizing that modern fracking and horizontal drilling has dramatically increased the economic feasibility of extracting oil and gas from shale reserves across the nation. The Court found BLM's assumption that horizontal drilling and fracking would not likely occur on the leased land to be unreasonable. The Court said that BLM should have prepared an EIS that considered the impacts of fracking before the non-NGO leases were issued.

The case is Center for Biologic Diversity and Sierra Club v. Bureau of Land Management and Ken Salazar, C-1106174, US District Court, Northern District of California.

Local Right to Zone Gas Development Hangs in the Balance

In March 2012, seven municipalities, the Delaware Riverkeeper and a local health professional filed suit to declare portions of Act 13, Pennsylvania's oil and gas law, unconstitutional. The Commonwealth Court struck down the portion of the law that sought to preclude local municipalities from adopting zoning ordinances that applied to oil and gas operations. An appeal of that decision is before the Pennsylvania Supreme Court.

The Supremes have been operating since last May with six justices - three Dems and three Repubs. On May 1, the seat of convicted Justice Joan Orie Melvin will become open and Governor Corbett will be able to appoint a successor to fulfill her term with the concurrence of 2/3 of the Senate.  Since the Senate is split 27 (R) - 23 (D), Corbett will need 7 Dems to vote for confirmation of his nominee. Whoever is confirmed could be the deciding vote in the Act 13 litigation.

Senator Daylin Leach, Dem Chair of the Senate Judiciary Committee, sent a letter to Corbett appealing for a bi-partisan approach to the opening.  He offered five names of sitting Republican judges that would be acceptable. Here they are:

Judge Cheryl Allen, the only African American in the group, currently serves on Pennsylvania's Superior Court (an appellate court that largely handles criminal matters). She has a BS from Penn State and law degree from Pitt (presumably she would recuse herself from any case arising out of revival of the Pitt/Penn State football rivalry). She was a public school teacher right out of college and eventually got appointed to the Allegheny County Common Pleas Court, where she spent 12 years in the Juvenile Division working with children and families before election to the Superior Court. Judge Allen ran for the Republican nomination to the Supreme Court in 2009 but, coincidentally, she lost that race to none other than Joan Orie Melvin. 

Judge Correale Stevens, is the President Judge of Superior Court - where Judge Allen sits. He received a BA from Penn State (go Lions - that's two in a row), and JD from Dickinson. He hails from Hazelton in Luzerne County, where he was a city solicitor, state representative, district attorney and, eventually, a Common Pleas Court judge. Judge Stevens apparently enjoys outdoor challenges, as he lists graduation from the Outward Bound Adventure program on his official biography. He also has a bit of a sense of humor - when someone tried to break into his Hazleton Office, he quipped “Why would someone want to break into a court office? I don’t know unless he wants to read how long he’s going to be in jail." Not only that, he actually has his own television show where he is interviewed by a guy named Sam Lesante - apparently a Northeast Pennsylvania fixture reminiscent of the great Joe Franklin. 

Judge Kathrynann Durham is from Delaware County and another nominee with experience on Common Pleas Court. Durham got her BA at Widener and JD from Delaware Law. She spent seventeen years in the State House representing the 160th District before being nominated to the Court by Gov. Tom Ridge. Like Allen, Durham spent time teaching in public school after college. She does not appear to have practiced law outside of her court experience. When nominated in 2001, Durham credited her mother, Catherine T. Walrath, a widow who raised five children while operating a flower shop in Parkside. "She had a reputation for being able to get things done. . . . She never turned anyone away," 

Judge Thomas Branca is another Common Pleas Court Judge - this time from Montgomery County. He got his BA from Ursinus College, and JD from Pitt. Before being elevated to the bench and unlike any of the other four, Branca worked on the public defender side of the aisle from '73-'76, and served as chief public defender for Montgomery County from 2000-02. Between stints as a PD, Judge Branca worked in private practice doing civil and criminal trials. It's not believed that the Judge is related to Ralph Branca, the former Dodger's pitcher who gave up the "shot heard round the world" to Bobby Thompson in the bottom of the ninth to hand the New York Giants the 1951 National League Pennant. 

Judge Carmen Minora rounds out Sen. Leach's list, the third Common Pleas Court Judge who hails from Lackawanna County.  Judge Minora got his BS from the University of Scranton, and is the only Duquesne University Law School grad amongst the five. In 2010, US Senators Casey and Specter submitted Minora and two others to the White House to fill vacancies on US District Court for the Middle District of Pennsylvania, but he was not eventually nominated for that position. Several years earlier, Sen. Specter asked George W. Bush to consider Minora for a position on the D.C. Circuit Court, but there was no opening at the time and he was not eventually nominated for that position either. Judge Minora was reportedly a lifelong friend of Senator Specter.

Whose lands are public lands?

“This land is your land” (Woodrow Wilson Guthrie, American Singer-Songwriter)

"We have been criticized by one or two organizations that portray themselves as representing everybody that has an interest in this. They're not local. That's why we're here today to meet with the people who do have a local, direct interest into this tract of land." (Richard Allan, DCNR Secretary)

"We learned a little bit, but did not have an opportunity for input. It wasn't set up for input," Dan Alters, President of the Lycoming County Audubon Society.

It is troubling when the Secretary of the DCNR, who is constitutionally obligated to conserve Pennsylvania’s state forests for all the citizens of the Commonwealth – present and future - indicates that only persons that live near our state parks and forests have enough of an interest in those lands to be granted an audience with the agency that will decide its fate.

As reported by the Sun-Gazette, the DCNR held a closed-door meeting last week with a hand-selected group of concerned citizens on how the agency intends to proceed to manage the “Clarence Moore” tracts of land in the Loyalsock State Forest.

It apparently is news to the Secretary that:

• Pennsylvanians travel hundreds of miles to enjoy their public outdoor recreation areas;
• Those that do not or cannot travel to our parks and forests still have an interest in those lands and a right to know how their government is managing them;
• The Pennsylvania Constitution requires that he manage the Loyalsock State Forest for the enjoyment of current Pennsylvanians, but also for future generations Pennsylvanians not yet born; and
• Conserving Pennsylvania’s iconic wild areas is not just an abstract idea - it is the greatest living reminder that conservation itself is a core Pennsylvanian and American value.

Indeed, America’s sportsmen - one such interested group - have consistently made clear that our conservation heritage is a priority issue on par with gun rights in this country.

Secretary Allan’s attempt to divide Pennsylvania’s conservationists by narrowly defining who participates in this important decision is ill conceived.  Secretary Allan should understand that the interest in this public resource reaches far beyond those that  live near the Loyalsock State Forest.

It was President Ulysses S. Grant that created our first Natonal Park by protecting one of America’s great living treasures - Yellowstone National Park.  Query whether any of us would now have the chance to think about loading our children into the car and taking that iconic summer trip out west if President Grant had thought about public resources the way that Secretary Allan apparently does.

AEP Settlement Will Mean Cleaner Air for Pennsylvanians

Natural Gas Likely Made New Settlement Possible

American Electric Power (AEP), one of the nation's largest power companies, announced that it will stop burning coal at three power plants in Indiana, Ohio and Kentucky by 2015 as a result of settling a Clean Air Act lawsuit with the U.S. Environmental Protection Agency (EPA), eight states and 13 citizens groups. AEP also agreed to replace a portion of these coal plants with new wind and solar investments in Indiana and Michigan, bringing more clean energy online to meet the region's electricity needs.

The suit, originally begun in 1999, alleged that AEP's coal-fired power plants were dumping pollutants throughout the Mid-Atlantic and New England states in violation of the Clean Air Act. The parties' original settlement in 2007 required AEP to install $4.6 billion in pollution controls and invest $60 million in pollution reduction projects. But AEP sought to reopen the settlement in order to install cheaper pollution control technology that would save it $1 billion but not eliminate as much pollution at one of its largest plants. The modified settlement will allow use of the cheaper technology, but lower total sulfur dioxide (SO2) pollution emitted by AEP's power plants far below levels required by federal law. To achieve that limit, AEP will stop burning coal at three power plants in Indiana, Ohio and Kentucky by 2015.

Coal-fired power plants are the nation's largest source of mercury, sulfur dioxide (SO2) pollution, carbon pollution and many other deadly pollutants that can trigger heart attacks and contribute to respiratory problems.

That Pennsylvania did not participate in the lawsuit is a testament to the immense political power wielded by the coal industry in our state's capitol, as the governor that declined to be part of the suit was Tom Ridge, a well-liked governor that had just been re-elected by a wide margin.

Pennsylvania will, nonetheless, play an important role in the settlement because AEP could not retire 2011 megawatts (MW) of coal-fired power in Indiana, Ohio and Kentucky without the natural gas being developed here in Pennsylvania.

For Pennsylvanians to fully benefit, the environmental improvements resulting from reduced coal-fired power cannot be offset by increased costs associated with shale gas development. For that reason, shale gas must be developed in an environmentally sound manner.

DEP sends strong warning that expedited cannot mean slapdash

The flurry of activities occurring in the Marcellus Shale regions of Pennsylvania, such as well pad, pipeline and compressor station development, could do major violence to our water resources if activities are not carefully regulated.

Fortunately, the Pennsylvania Department of Environmental Protection (DEP) requires persons proposing to disturb five acres or more of land in connection with such activities to obtain coverage under an erosion and sediment control permit. The terms and conditions of this permit are intended to protect our water resources.

Unfortunately, DEP offers an expedited review process under which applicants are guaranteed permit coverage within 14 business days. To qualify for an expedited permit, applications must be prepared and certified by a licensed professional registered in Pennsylvania who has attended a mandatory training.

PennFuture does not support the expedited permit review process because we believe every application should receive a complete technical review from DEP staff to ensure that oil and gas activities will not degrade rivers, streams, and other bodies of water. Nevertheless, we were pleased to find some encouraging news related to the expedited permit review process on the Environmental Hearing Board docket last week.

Attached to a notice of appeal filed by AECOM Technical Services Inc. was a letter suspending an AECOM employee's ability to utilize the expedited permit review process in the future based on an application she prepared for the Williams Field Services Company, LLC Springville Gathering Line Project in which she allegedly failed to identify a number of water resources, resulting in a whopping 34 unauthorized impacts to wetlands and streams, at least some of which appear to have been entitled to special protection.

DEP also appeared to raise the possibility of a criminal investigation when it invoked the provisions of Pennsylvania law that relate to false swearing and unsworn falsification to authorities. The suspension and implied threat of criminal prosecution should send a strong message to all professionals: They must comply with the law when preparing erosion and sediment control permit applications.

PennFuture hopes that all licensed professionals registered in Pennsylvania, as well as the gas companies that retain their services, are listening carefully.

Clean Water Act Turns 40

Forty years ago Congress, in bipartisan fashion, overrode a veto by President Richard M. Nixon and enacted the Clean Water Act of 1972. It has made a dramatic improvement in our lives, and that of our children.

On its birthday, I found myself reflecting on two aspects of this complex law known as the Clean Water Act — its technology-forcing nature, and its desire to achieve an impossible goal.

Congress did something extraordinary lo those many years ago — it knowingly designed a system that would likely put companies out of business in favor of cleaning up our nation's waterways. Congress did that by setting cleanup standards that were driven by technology — in some cases expensive technology — that would only be able to be afforded by some of the best performing companies in a specific industry. And it put what some would think was a draconian measure in place to save a dying patient — our nations waterways.

Section 402 of the Clean Water Act required persons to obtain permits in order to discharge pollutants into waters of the United States. The U.S. EPA was required to put conditions in those permits that limited the amount of pollutants that could be discharged. Those limits were to be initially based on existing technology that considered the economic condition of companies in a particular industry. As time went by, the limits would be lowered to reflect the best technology available to remove that pollutant from the waste discharge, with less concern for a company's ability to afford that technology. Congress knew there were companies that operated so inefficiently that if they were forced to internalize the actual cost of production by not using the environment as a free trash can, those companies would eventually go out of business — a bold and courageous decision, indeed. Congress knowingly chose to put those inefficient companies on the trash heap in favor of companies that were forced to internalize the cost of adopting these new technologies in order to properly manage their pollution.

The purpose of these technology-forcing provisions was to achieve a previously unheard of goal in environmental regulation — the goal of zero discharge of pollutants to waters of the United States. While progress has at times been slow, and the provisions of the Clean Water Act itself would not conceivably meet the goal — at a time when the Cuyahoga River was burning because of pollution on its surface, the zero discharge goal made an important and forceful statement about the seriousness of the task being given to the U.S. EPA: Clean up the waters of the United States or else. Many have credited this simple yet seemingly unachievable goal with much of the success achieved under the Clean Water Act over the past 40 years. Without this wind at the back of the EPA, many of the difficult decisions that the agency has made implementing the provisions of the Clean Water Act would no doubt have been that much more difficult — particularly during difficult economic times over the past four decades.

Reflecting on the successes achieved, it should not be lost that the way in which the Clean Water Act went about achieving its goals did not just put some underperforming companies out of business, it also put people to work. It encouraged development of an entire industry that we now take for granted — an industry of scientists, engineers, inventors, mechanics, and other good-paying careers built around one goal — removing pollutants from the waters that we use to fish, swim, and drink.

The Clean Water Act turns 40, and we are that much better for it. It's difficult not to wonder whether those in Congress today would have the ability and will to construct and enact such a monumental piece of public health legislation.

US Supreme Court Supports Clinton’s Roadless Rule

The Supreme Court has turned away an appeal challenging a Clinton-era rule that prohibits road development on about one-third of all National Forest System lands. The Final Rule has some limited impact within the bounds of Penn’s Woods –25,000 of the 513,000 acres that comprise Allegheny National Forest are inventoried roadless areas that will be protected from further road construction.

The Forest Service published the Rule on January 12, 2001, establishing prohibitions on road construction, road reconstruction, and timber harvesting on 58.5 million acres of inventoried areas of National Forest System lands that are currently roadless (the Forest Service manages more than 190 million acres of land). The intent of the Rule is to provide lasting protection for inventoried roadless areas. Inventoried roadless areas provide clean drinking water and function as biological strongholds for populations of threatened and endangered species. They also provide opportunities for dispersed outdoor recreation, which continue to diminish as open space and natural settings are developed around these areas. The inventoried roadless areas comprise only 2 percent of the land base in the continental United States but are found within 661 of the over 2,000 major watersheds in the nation and provide many social and ecological benefits.

The state of Wyoming and the Colorado Mining Association filed suit challenging the Final Rule in the United States District Court in Wyoming. The District Court struck down the Rule, accepting arguments made by those opposed to the protections that the National Forest Service had improperly exercised powers reserved to Congress under the 1964 Wilderness Act by using the roadless rule to effectively turn National Forest lands into de facto wilderness areas.

On October 21, 2011, the US Court of Appeals for the 10th Circuit overturned the District Court’s ruling, finding that there was a distinct and meaningful difference between the uses to which public land could be put as wilderness areas compared with inventoried roadless areas. The 10th Circuit recognized that roadless areas allow many more activities than do wilderness areas, such as the use of motorized vehicles in roadless areas that is not allowed in wilderness areas. Based on those distinctions, the Circuit Court concluded that the roadless area protections were a proper exercise of the Forest Service’s authority to manage the National Forest system, and not an infringement on Congressional power under the 1964 Wilderness Act.

Yesterday, the US Supreme Court, in a summary order (meaning without an opinion), rejected the attempts of the Mining Association and others to have it review the 10th Circuit Court decision, which will now stand, ensuring the continued protection of inventoried roadless areas of National Forest System lands for the foreseeable future.

New York Monitors Groundwater for Methane To Prepare for Shale Gas Development

The U.S. Geological Survey (USGS) and New York State Department of Environmental Conservation (NYDEC) recently completed a study of dissolved methane in groundwater.

Unlike Pennsylvania, New York is taking steps to document the existence of dissolved methane in groundwater before gas development in Marcellus and Utica shale occurs.

The report contains some good background information on methane and groundwater. For example, the report explains the basics on how methane dissolves and is released from water. Methane can dissolve in water just like carbon dioxide gas used in carbonated beverages. When pressure is reduced, as occurs when the top is removed from a bottle, gas comes out of the solution and causes bubbling and fizzing in the beverage. The same occurs in groundwater. Methane can be dissolved in water under extreme pressure beneath many layers of rock. When that rock is fractured and the water enters a location under less pressure, such as a water well, the dissolved gas can be released, resulting in bubbling water. If the gas is released in a closed structure, such as a home or water tank, the concentration of gas can become flammable and explosive.

The report also explains the scientific basis for safety levels used by state and federal officials. Methane reaches saturation in water at 28 milligrams per liter (mg/L) at atmospheric pressure and becomes flammable in air at about 5 percent by volume. For this reason, the federal government recommends that action be taken to closely monitor water that contains methane concentrations from 10 to 28 mg/L (or 3 to 5 percent by volume in air). Concentrations of methane less than 10 mg/L in water (or 1 to 3 percent by volume in air) are not as great a concern, but the gas should be monitored to ensure no buildup over time.

The study is comprehensive — involving 239 locations and encompassing eight of 14 major river basins in the state. For samples collected through 2011, the study concluded that a full 91 percent of wells over varied conditions throughout the state contain methane below the federal action level of 10 mg/L, and that nearly half (47 percent) contain no measurable amounts of methane. In only five cases (2 percent of the total number of samples) did the methane concentration exceed 28 mg/l.

Show us the revenue!

A few months ago, the Pennsylvania Department of Conservation and Natural Resources (DCNR) issued a policy statement on "Shale Gas Development Beneath Publicly-Owned Streambeds."

The policy begins by stating: "Gas development companies interested in drilling beneath publicly-owned streambeds must obtain a gas lease from [DCNR] prior to drilling[.]" The policy statement notes that DCNR, in consultation with the Pennsylvania Department of Environmental Protection (DEP), has developed a list of publicly-owned streambeds.

Also posted on DCNR's Web page are two maps showing the locations of the publicly owned streambeds on the DCNR-DEP list. The first is a single-frame map dated February 28, 2012 that includes shading that reveals the extent of the Marcellus Shale formation.

The second is an interactive map that allows the viewer to select particular streams and zoom in to see the precise location of the streambed (and underlying gas) claimed by the Commonwealth.

This is a big deal.

First, it's our property, and nobody may enter and occupy our property without our permission. In Pennsylvania, although it is lawful for a well drilled on one property to pull in natural gas from beneath a neighboring property, one may not drill a well into property owned by someone else without permission, usually in the form of a lease. So, a gas company that has drilled beneath a publicly-owned streambed without first obtaining a lease from the Commonwealth is occupying our public property without permission —which is a polite way to say "trespassing."

Second, there is a lot of money at stake. In 2010, DCNR got a $6.15 million bonus payment ($4,000 per acre), plus a 20 percent royalty for a lease with Chesapeake Energy authorizing the extraction of gas beneath 1,500 acres of a seven mile stretch of the Susquehanna River in Bradford County. At the time, DCNR estimated that the Commonwealth owns the mineral rights beneath at least 25,000 additional acres of rivers and streams.

Take a quick look at DCNR's maps. Given the extent of the streambeds claimed by the Commonwealth, the number of wells drilled in the Marcellus Shale, and the extraordinary length of most horizontal gas wells (several thousand feet), it would be a miracle if every horizontal well drilled into the Marcellus Shale managed to avoid areas beneath the streambeds DCNR identifies as publicly-owned.

With our current budgetary straits, this is no time to subsidize rich gas companies by allowing them — for free — to occupy public property, and to collect and sell the public's natural gas.

So we ask:

How many wells have been drilled beneath publicly owned streambeds in Pennsylvania without a lease? In other words, how many gas wells are occupying public property without the public's permission and without compensation?

What is the Commonwealth doing about such wells?

Show us the leases, and (cue Cuba Gooding Jr.) show us the revenue!

Won’t you be my neighbor? Court says no.

A divided federal appeals court (US Federal Court of Appeals for the DC Circuit) handed down its ruling today addressing arguments that federal regulators went too far in adopting the Cross State Air Pollution Rule, which established new regulations to control air pollution throughout portions of the eastern United States.

The regulations at issue were adopted under the federal Clean Air Act's "good neighbor" provision, which requires upwind states to prevent sources within their borders from emitting air pollutants in amounts that contribute significantly to a downwind state's nonattainment of federal air quality standards. Its purpose is to establish a workable approach to interstate air pollution issues that have huge public health implications.

By a vote of 2-1, the court found that the Environmental Protection Agency had overstepped its legal authority in developing the rule. As a result, the Court vacated the offending provisions.

This ruling raises several concerns. First, it creates uncertainty over the timing and magnitude of the emissions restrictions that ultimately will be imposed on sources in upwind states. Also, delays in establishing regulations and requirements to upgrade or build cleaner generation will result in foregone emissions reductions and will fail to send clear market signals to make investments in cleaner generation, such as natural gas, renewable energy, and efficiency.

The EPA must continue administering the provisions of its previously-adopted Clean Air Interstate Rule pending adoption of a valid replacement, or until the U.S. Supreme Court agrees to review this decision and overturns it.

EME Homer City Generation, L.P. v. EPA, No. 11-1302.