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Bear in the Woods: Environmental Law Blog

Wednesday, September 17, 2014

Gaston's back-up comes through

In March, this blog described a "bureaucratic version of the Alphonse and Gaston routine" — "After you, Alphonse." "No, you first, my dear Gaston." — in which two units of Pennsylvania's Department of Environmental Protection (DEP) pointed to each other as being responsible for regulating a parcel of land in Fayette County known as the Curry site while unchecked erosion on the site was causing discharges of sediment that polluted the Youghiogheny River. Cast in the role of Alphonse was the Waterways and Wetlands (W&W) Program in DEP's Southwest Regional Office in Pittsburgh, and playing the role of Gaston was DEP's Mining Program.

In an update posted in July — "Alphonse Makes a Play" — we applauded W&W for taking enforcement actions against the owner of the Curry site and a timbering company for violation of DEP's erosion and sedimentation control regulations.

Gaston, in contrast, has been a stick-in-the-sediment.

Gaston — the DEP Mining Program — initially issued a compliance order to the company that holds the surface mining permit for the Curry site, Amerikohl Mining, Inc. It then abruptly reversed course, deciding that the clear-cutting of trees on portions of the site closely corresponding to those permitted for mining activities was not related to the proposed mining operation. The DEP Mining Program reasoned that because the timbering and mining operations were independent, any ongoing soil erosion and sediment pollution resulting from the timbering was not Amerikohl's responsibility and was not within the Mining Program's regulatory jurisdiction.

In short, Gaston's position was "don't call me, call Alphonse."

Fortunately, Gaston has a back-up, in the form of the federal Office of Surface Mining Reclamation and Enforcement (OSMRE), which oversees the DEP Mining Program's regulation of coal mining in Pennsylvania. Digging deeper into the situation than Gaston had, OSMRE stepped up and took action.

The full story is spelled out in a September 8, 2014 Decision of Supervisory Administrative Law Judge Harvey C. Sweitzer of the U.S. Department of the Interior's Office of Hearings and Appeals (OHA).

Here's the short version. In response to citizen complaints about sediment pollution entering the Youghiogheny River, OSMRE gave the DEP Mining Program an opportunity to take action to correct the violations. After initially issuing a compliance order to Amerikohl, the DEP Mining Program reversed course, withdrew its order, and took the position that it had no authority over the Curry site. OSMRE received the same response when it gave the DEP Mining Program a second chance to take action. OSMRE then issued a notice of violation and later a cessation order to Amerikohl for erosion and sedimentation violations at the permitted Curry surface mine. Amerikohl appealed OSMRE's actions to OHA.

On review, Judge Sweitzer upheld OSMRE's issuance of the notice of violation and cessation order to Amerikohl. Rejecting absolute, "bright line" rules suggested by both parties, Judge Sweitzer held that the critical issue of whether the timbering was independent of the proposed coal mining activities required a case-by-case analysis of the factual situation presented. On that central issue, a welter of evidence showed extensive cooperation and coordination between the landowner and Amerikohl. Among other things, the landowner asked Amerikohl which logging contractor to use, had Amerikohl delineate the area to be timbered, removed more trees than would be prudent from a forest management perspective, and geared the logging operation to Amerikohl's timetable and a date restriction in the mining permit. (OHA Decision, p. 12.) Judge Sweitzer concluded that the landowner "did virtually everything he could to facilitate mining through his logging practices." (Id.) As a result, the judge ruled, the logging is classified as a surface mining activity under Pennsylvania's OSMRE-approved coal mining regulations. (Id., p. 15.)

Judge Sweitzer noted that when the DEP Mining Program decided it lacked jurisdiction, it was unaware of the full extent of Amerikohl's involvement in the timbering operations at the Curry site. He also found, however, that the DEP Mining Program had enough evidence — including the congruity between the area timbered and the area covered by the mining permit — to warrant further investigation, and he concluded that its failure to request additional time from OSMRE to conduct an investigation "was an arbitrary and capricious decision." (Id., p. 16.)

For the sake of the High Quality waters of the Youghiogheny, it is welcome news that Gaston has an able back-up that is willing to step into the void and make the play.

Better yet, of course, would be for Gaston to follow Alphonse's lead by getting in the game and making the play himself.

Kurt Weist is senior attorney for PennFuture and is based in Harrisburg.

Wednesday, September 03, 2014

PennFuture scores big victory for local governments and citizens rights

On Friday, Judge Marc F. Lovecchio of the Court of Common Pleas of Lycoming County decided in favor of local residents by vacating and setting aside a conditional use permit that would have allowed Inflection Energy, LLC to build and operate an unconventional shale gas pad in the middle of a residential neighborhood in Fairfield Township. The case is believed to be the first decision testing the role of local government to regulate natural gas developments in the post-Robinson Township world. 

For the uninitiated, the Supreme Court in Robinson Township relied on Pennsylvania’s Environmental Rights Amendment to strike down portions of the state's Oil and Gas Law (Act 13), which compelled local government to allow gas operations across all zoning districts, including residential districts.  Otherwise, the state threatened to penalize local governments by withholding any "impact fees" intended to address harm caused to local communities by the industry. I know, nice guys.

In this case, Inflection applied for a conditional use permit for its proposed gas well pad.  A number of residents spoke out against the well pad before the Fairfield Township Board of Supervisors, testifying to concerns about air pollution, noise pollution, light pollution, traffic congestion, and the impact of the operations on their property values and general well-being. The company introduced the testimony of two witnesses, neither of whom were experts in land-use matters. Often, their testimony consisted of nothing but conclusions, such as that the operations were compatible with existing uses authorized for residential districts, without any explanation of how the witness reached those conclusions.

On appeal, PennFuture made three arguments: (1) that the language of the ordinance expressly authorized gas operations in the industrial zoned district, and it was therefore inappropriate to use a conditional use permit to allow it in the residential zoned district; (2) that the township's decision was not supported by substantial evidence on the record; and (3) that the township had violated the residents' substantive due process rights and failed to comply with its obligations under Article I, Section 27 by authorizing the gas well operation in the middle of a residential neighborhood.

The Township and Company argued that the citizens had waived their rights to raise their various challenges, that the Township properly used its conditional use process, that the Township's findings were supported by substantial evidence, and that no constitutional violations were committed.

Even though the Court "saw merit" in PennFuture's first argument, Judge Lovecchio rejected the idea that the ordinance expressly allowed gas operations only in industrial districts. Instead, the Court vacated the conditional use permit on the basis that the Township's findings were not supported by substantial evidence. The Court stated that the company failed to provide the Township with any evidence to support the conclusion that the proposed use was similar and compatible, while the citizens had “presented substantial evidence that there is a high degree of probability that the use will adversely affect the health, welfare and safety of the neighborhood."

Deciding the case on the basis of substantial evidence relieved the Court of the need to address PennFuture's constitutional arguments. Nonetheless, the Court made plain that the Township had an obligation to protect the constitutional rights guaranteed to its citizens under Article I, Section 27 of the Pennsylvania Constitution. The rights of citizens to a healthy environment, the Court said, "cannot be ignored and must be protected.” 

In so ruling, the Court adopted both the rationale and express language of the Supreme Court's decision in Robinson Township.

The case is Gorsline et al. v. the Board of Supervisors of Fairfield Township and Inflection Energy, LLC et al.  The full opinion can be found here.

George Jugovic, Jr. is chief counsel for PennFuture and is based in Pittsburgh.

Working together to protect a community of life untrammeled by man

When we think about our future, sometimes it's helpful to take a look back at the past. As the New York Times reports, this week marks the 50th anniversary of two important federal environmental laws: The Wilderness Act and the law establishing the Land and Water Conservation Fund. Both of these statutes were passed with bi-partisan majorities at the dawning of the environmental era of American politics.

The Land and Water Conservation Fund was established to use federal funds obtained from offshore drilling to conserve natural areas, landmarks, and recreational opportunities. Although its funding often falls far short of the $900 million authorized by statute, the Land Water and Conservation Fund has invested over $16 billion in conservation measures over its 50-year lifespan. In Pennsylvania, that money has been used, among other things, to create the Flight 93 National Memorial in Shanksville and to protect the Hopewell Big Woods forest in southeastern Pennsylvania.

The Wilderness Act was enacted to protect natural areas that are undisturbed by humans. Under the Act, "wilderness, in contrast with those areas where man and his works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain." At the time it was signed, the Act protected about 9 million acres of wilderness from human development. Today, there are more than 106 million acres of land protected as wilderness. About 44 million of those protected acres are located within the National Park System; other wilderness areas are managed by the U.S. Forest Service, the U.S. Fish and Wildlife Service, or the Bureau of Land Management. Pennsylvania has two wilderness areas: The Allegheny Islands Wilderness on seven islands in the Allegheny River and the Hickory Creek Wilderness in Warren County. 

Thinking about the success of these early federal environmental programs may help us to recognize the respect and admiration for nature shared by nearly all people. Our common love for undisturbed natural areas is shared by people of all ages, ethnic groups, and political affiliations. In a time when we're all frustrated by partisan bickering, recognizing our shared values, and important gains that resulted from those shared values, may help us to better understand and appreciate other people -- and perhaps reveal the path to future progress.

Mike Helbing is a staff attorney in PennFuture's Philadelphia office.