Thursday, May 09, 2013
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.
Wednesday, April 24, 2013
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.
Monday, April 08, 2013
- 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.
Wednesday, March 06, 2013
Monday, November 19, 2012
Thursday, October 18, 2012
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.
Tuesday, October 02, 2012
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.
Friday, September 28, 2012
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.
It is unfortunate and contrary to the public interest that the Pennsylvania Department of Environmental Protection (DEP) performed no baseline monitoring similar to that being done by the NYDEC. Although the DEP has a statutory obligation to investigate individual claims that drilling contaminated drinking water supplies, each such claim and investigation consumes DEP resources. And while drilling companies are obligated to offer to collect samples from drinking water sources within a specified distance of a proposed gas well, the companies have no authority to require that a sample be collected, and the specified distance was established by the General Assembly arbitrarily and not based on any factual or scientific data. Further, the sampling requirement is based on a distance horizontally from the well, and does not account for laterals that will eventually be used to fracture the shale. If a claim of contamination is made by a resident and DEP concludes that it cannot prove that the drilling caused the contaminated water in the well, then the landowner is left to pursue an action on his or her own against what is likely to be a well-funded defendant. Alternatively, the company may choose to spend resources to satisfy the complainant as a matter of doing business even though it genuinely believes that it has no responsibility for the contamination. Even if the landowner has funds to pursue an action or if the government steps in because more than one home has been allegedly affected, the result will likely be a substantial expenditure of public and private resources resolving the dispute. None of these scenarios is an efficient means of doing business or protecting the public health and safety.
By developing baseline data of dissolved methane content in its aquifers before shale gas development begins, New York is serving the interests of both residents and the industry. The study will not resolve all disagreements, but it will provide substantial data against which to compare the impact of the industry when it arrives and should lead to the more efficient resolution of individual disputes, particularly if New York couples the baseline data with adoption of a law that requires gas companies to collect water samples of nearby drinking water supplies and requires that residents submit to that sampling or document well conditions that prevent the sampling from taking place.
Thursday, August 23, 2012
Tuesday, August 21, 2012
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.