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Bear in the Woods: Environmental Law Blog

Wednesday, February 26, 2014

Pennsylvania Supreme Court rejects Application for Reconsideration of Act 13 decision

The Pennsylvania Supreme Court’s December 19, 2013 decision in Robinson Township v. Commonwealth of Pennsylvania declaring portions of Act 13 unconstitutional will remain intact.

Last month, attorneys for the Public Utility Commission (PUC) and the Department of Environmental Protection (DEP) filed an application asking the Supreme Court to reconsider its original decision. (We discussed the opposing positions of the government here and the citizens here.) On Friday, the state Supreme Court summarily denied the DEP and PUC’s application without opinion.

Justice Saylor dissented from the Court’s decision to deny the Application for Reconsideration, stating that the Commonwealth parties were entitled to “a reasonable opportunity to present evidence” on whether Act 13 satisfied the "newly minted balancing test" announced by Chief Justice Catille under Article I, Section 27 of the Pennsylvania Constitution.

The Supreme Court’s denial clears the last remaining obstacle for the case to return to the Commonwealth Court for further proceedings.

Michael Helbing is staff attorney for PennFuture, based in Philadelphia.

Wednesday, February 05, 2014

People First

Whether we’re talking about policy related to oil and gas drilling, management of polluted runoff, or the development of alternative forms of energy, we at PennFuture believe that the safety of our people and the protection of our environment should always come first. That’s why we’re concerned that Governor Tom Corbett has chosen to sign on to a letter supporting the “States First” initiative, which essentially asks the federal government to stay out of the business of regulating oil and gas drilling operations. Instead of arguing about which level of government should be the “primary” regulator of oil and gas drilling, we believe that regulators at all levels of government should work to create a synergistic web of regulations that complement each other for the protection of the environment and the benefit of all people.

States First is an initiative of the Interstate Oil and Gas Compact Commission and the Ground Water Protection Council. According to its website, the goal of States First is to “support and enhance the role of the states as the primary and appropriate regulators for oil and gas development.” As part of the initiative, the groups have created the State Oil and Gas Regulatory Exchange (SOGRE), which is intended to bring together regulators and experts from different states to encourage the free flow of ideas and information.

Although we commend Gov. Corbett and the leaders of States First for taking the initiative to encourage communication among state regulators, we believe that their view that states should be the “primary” regulators of oil and gas development is short-sighted. State governments do indeed have a role to play in overseeing oil and gas drilling operations, but so, too, do federal and local governments.

The history of environmental regulation shows that local, state, and federal regulation can successfully co-exist. People in all states need clean air, pure water, and a healthy environment, and what happens in one state affects all the states around it. Without federal standards and oversight, it is very difficult for a state’s government to protect its citizens from environmental harms that originate in other states. The federal Clean Water Act and Clean Air Act have shown us that federal regulatory “floors” and state regulatory “ceilings” can work very well together. There is no reason to believe that a similar model would not work in the area of oil and gas. Although it is true that certain types of regulations may be best left to the states, many aspects of oil and gas drilling operations are standard across the industry and across the country and would be appropriately regulated on a federal level. Other areas may require more tailored regulation best provided at a local level.

The federal government can play an important role in ensuring that oil and gas drilling is done safely and responsibly. By establishing national regulations for standard oil and gas drilling operations, federal regulators can set the minimum requirements necessary for safe practices across the country.  National regulations would give industry a degree of certainty by providing a single set of regulations that well operators must comply with nation-wide.  They would also protect citizens by ensuring that states won't engage in a “race to the bottom” by competing with each other for oil and gas jobs by weakening essential environmental protections in an effort to attract business.  As past experience has taught us, states can indeed be ‘incubators of regulatory innovation,’ as States First suggests. But, in the laboratory of oil and gas, this often happens only after states play a different role –  that of guinea pigs for industry practices that state regulations haven’t anticipated. Pennsylvania is a perfect example. And we’re paying a price for it with contaminated water wells, leaky impoundments, and a host of other problems. 

Although the federal government has not moved to establish broad oil and gas drilling regulations, it has taken a small step by regulating certain areas, such as its requirement that well operators install “green completions” that help to capture methane emissions from wells by 2015. This is a good example of an aspect of oil and gas operations that is standard across the country and is appropriate for federal regulation. The federal government should extend this example to regulate other areas of oil and gas operations that are standard throughout the country.

In addition to the federal government, local governments, too, have a role to play in protecting their communities. As the Pennsylvania Supreme Court recognized in Robinson Township v. Commonwealth of Pennsylvania, certain elements of drilling oversight, especially land-use regulations, require specialized local knowledge best achieved by local governments. 

Good governance results from people at all levels of government coming together to share knowledge and develop appropriate regulatory policies. We applaud the States First Initiative’s efforts at the former; we only hope that its members will overcome their instincts to ‘protect their turf’ to revise the initiative’s goals to focus on the latter as well. When it comes to designing an effective regulatory system, states should not compete amongst themselves or with other levels of government; they should work together to put their people first.

Mike Helbing is a staff attorney for PennFuture and is based in Philadelphia.