Alphonse makes a play

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) were pointing to each other as the responsible regulator while failing to prevent polluting discharges of eroded sediment from a parcel of land in Fayette County known as the Curry site. 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.

As noted in the earlier post, baseball broadcasters describe two fielders who both shy away from a catchable fly ball as “pulling an Alphonse and Gaston.”

An update is required: Alphonse has stepped up and made a play!

PennFuture learned last week that on June 19, the W&W Program issued Compliance Orders to Appalachian Timber Company (available here) and Curry Lumber Company (available here) for failure to implement or maintain effective erosion and sediment control best management practices at the Curry parcel, in violation of DEP’s regulations.

The orders state that the cited violations have resulted in sediment pollution entering Morgan Run, a stream running along part of the western boundary of the Curry site that is entitled to special protection as a “High Quality Cold Water Fishery.” The remedial actions required by the orders include submitting a revised erosion and sediment control plan to the Fayette County Conservation District by June 27 and implementing specified best management practices by July 1.

Recent seeding operations and other activities at the Curry site suggest that W&W’s orders have had a beneficial impact, but the permanent stabilization of disturbed areas required by W&W’s compliance orders takes time, so there may be more tell about this part of the story.

There is another part of the story, however, that does not appear to be covered by W&W’s compliance orders. The biggest erosion and sedimentation problems observed at the Curry Site during the last several months have been outside the Morgan Run watershed. Citizens and the federal Office of Surface Mining Reclamation and Enforcement have documented problems on eastern portions of the Curry site that drain directly into the High Quality waters of the Youghiogheny River through several eastward-flowing unnamed tributaries. This photo, taken from the Great Allegheny Passage bike trail last November, shows a distinct, milky plume of sediment pollution carried into the Yough by one of those tributaries. Photos taken on New Year’s Eve show the muddy waters of one of the Curry site tributaries, which contributed to a similar plume of sediment pollution in the Yough. (All photos are used with the permission of the Youghiogheny Riverkeeper®.)

When performing follow-up inspections to assess the companies’ compliance with its June 19 orders, W&W should make sure that the conditions on the eastern side of the Curry site are not causing or contributing to sediment pollution in the Yough through the eastward-flowing tributaries.

Having called out W&W for inaction in March, we now give a shout out to W&W for the actions it has taken – a tip of the (Pirates) cap to you, Alphonse.

But our commendation comes with a qualification: The game is not over, and there are more plays to make. Keep stepping up and catching the ball, Alphonse!

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

Lawsuit seeks to clean up stretch of Youghiogheny River

Many residents of Pennsylvania, particularly southwestern Pennsylvania, are familiar with the beautiful Ohiopyle State Park, through which the Youghiogheny River flows. People flock to the area every year for superb white water rafting, fishing, camping, hiking and biking opportunities. Just upstream of Ohiopyle lies the Borough of Confluence, situated along the Great Allegheny Passage where Laurel Hill Creek and the Casselman River empty into the Yough. Between Confluence and Ohiopyle State Park runs one of the nicest eleven miles of trout river in all of Pennsylvania. It is at the beginning of this stretch where the Borough of Confluence discharges wastewater from its sewage treatment plant.

The Borough's sewage treatment plant is hydraulically overloaded. Two main sewer extensions that collect sewage from the town are constructed of old tile lines that allow large quantities of water from the Yough and Casselman Rivers to infiltrate into the collection system. This condition results in raw sewage bypassing treatment at the plant. The Pennsylvania Department of Environmental Protection (PADEP) estimates that the Borough's plant settles out only 30 percent of the solids that it should be collecting, meaning that the rest ends up in the river. Though this condition has existed for many years, neither the Authority nor the PADEP has taken action to solve the problem.

Ironically, the hydraulically overloaded treatment plant threatens the very natural resource that the Borough now seeks to use to attract economic development to the area. As suspended solids increase, a water body begins to lose its ability to support a diversity of aquatic life. Suspended solids absorb heat from sunlight, which increases water temperature and subsequently decreases levels of dissolved oxygen. Some cold water species, such as trout and stoneflies, are especially sensitive to changes in dissolved oxygen. Suspended solids can also destroy fish habitat because suspended solids settle to the bottom and can eventually blanket the river bed, smother the eggs of fish and aquatic insects, and suffocate newly-hatched insect larvae.

The Borough discharges sewage to the Yough under authority of a National Pollutant Discharge Elimination System (NPDES) Permit issued by the PADEP. A file reviewed performed by PennFuture revealed that for the past four and one-half years, the Borough has reported more than sixty (60) violations of its NPDES Permit, equating to over five hundred (500) days of violation of the Clean Water Act and Clean Streams Law. As a result, PennFuture filed a citizen suit in Federal District Court to cease the violations. The suit seeks to require that the Authority develop and implement a plan that will correct the hydraulic overload at the plant and eventually stop untreated sewage from being dumped into this valuable natural resource. 

You can read the full Complaint that PennFuture filed in the District Court for the Western District of Pennsylvania here.

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

Lobsters making the case on warming oceans

Drastic declines in New England lobster larvae over the past year may be linked to rising ocean temperatures, not over-fishing, warns Dr. Rick Wahle of the School of Marine Science at the University of Maine.

Dr. Wahle and his crew of divers, who track lobster harvest data for the American Lobster Settlement Index, have seen a recent “widespread downturn” in the populations of larval lobsters. Although the adult population of lobsters is unchanged, Dr. Wahle’s research suggests that oceanographic changes are responsible for the sudden decline in lobster eggs.

Young lobster populations are approximately 50 percent of what they were in 2007. Recently, summer waters have been warmer than the lobster comfort zone (below 68° F), creating stress for lobsters. Complicating matters for lobster populations, warmer waters off the New England coast also aggravate a shell disease that eats away at lobster shells. The disease can be fatal to the crustaceans or make them unmarketable for selling live. As a result of the temperature changes affecting their habitat, lobster populations have been pushing north into areas that were once too cold for lobsters to thrive. 

Illustration of the water cycle and its interaction with the 

greenhouse effect.  The upper-left insert indicates the 

relative increase of potential water vapor content in the air 

with an increase of temperature (roughly 7% per degree).  

The white curls illustrate evaporation, which is compensated 

by precipitation to dose the water budget.  The red arrows 

illustrate the outgoing infrared radiation that is partly 

absorbed by water vapor and other gases, a process 

that is one component of the greenhouse effect. 

The stratospheric processes are not included in this figure.  

Reproduced with authorization from: Myhre, G., D. Shindell, 

F.-M. Bréon, W. Collins, J. Fuglestvedt, J. Huang, D. Koch, 

J.-F. Lamarque, D. Lee, B. Mendoza, T. Nakajima, 

A. Robock, G. Stephens, T. Takemura and H. Zhang, 

2013: Anthropogenic and Natural Radiative Forcing. 

In: Climate Change 2013: The Physical Science Basis. 

Contribution of Working Group I to the Fifth Assessment 

Report of the Intergovernmental Panel on Climate Change 

[Stocker, T.F., D. Qin, G.-K. Plattner, M. Tignor, S.K. Allen, 

J. Boschung, A. Nauels, Y. Xia, V. Bex and P.M. Midgley (eds.)]. 

Cambridge University Press, Cambridge, United 

Kingdom and New York, NY, USA. 

Over the past 50 years, the ocean has borne the brunt of climate change. Sea surface temperature changes are among the dangers associated with climate change. The average temperature of the global ocean has increased down to depths of at least 3,000 meters. See Intergovernmental Panel on  Climate Change (“IPCC”), Contribution of theWorking Group I to the Fourth Assessment Report of the IPCC, 408-21 (S. Solomanet l. eds. 2007).

In its most recent report, the IPCC estimated that oceans absorb approximately 90 percent of the heat added to the climate system, and the multinational experts report with high confidence that it is very likely that the increase in global ocean heat content observed has a substantial contribution from human activity. See IPCC, Climate Change 2013: The Physical Science Basis, Ch. 10.901-03 (Cambridge University Press 2013).  

Humans have an impact on water temperature in ways that extend beyond climate change as well.  When an industry uses water for processes such as cooling, the facility often discharges water that is hotter than the temperature of the receiving waters. When a power plant, for example, discharges heated water to a river, it can create a thermal plume or area of elevated temperature within that river. This human-caused change in the temperature of surface water is known as thermal industrial pollution. The combination of thermal industrial pollution with other forms of water pollution such as chemical or biological contamination can create severe stresses on aquatic ecosystems. See IPCC 2013, Ch. 10, at 869-928. In local areas, it can also intensify the effects of higher temperatures caused by climate change.

The EPA has the power to limit thermal industrial pollution because heat is defined under the Clean Water Act as a pollutant. 33 U.S.C. § 1362 (6).  Section 301(a) of the Clean Water Act prohibits the discharge of any pollutant by any person unless otherwise permitted under the Act. 33 U.S.C. § 1311(a). 

In order to qualify to release these pollutants, a discharger must obtain a National Pollutant Discharge Elimination System (NPDES) permit approved by EPA or a qualified state agency.  33 U.S.C. § 1342. The NPDES permit contains limitations on the quantity or concentration of pollutants, including heat, which the facility can discharge into a natural water body. 33 U.S.C. § 1342. 

Courts have recognized the importance of the direct effects of thermal industrial pollution in reversing approval of a permit for construction of two nuclear power plants. Duke Power vs. Carolina Environmental Study Group, Inc., 438 U.S. 59, 74 (1978), citing United States v. SCRAP, 412 U.S. 669, 686-87 (1973). (“Certainly the environmental and aesthetic consequences of the thermal pollution of the two lakes in the vicinity of the disputed power plants is the type of harmful effect which has been deemed adequate in prior cases to satisfy the ‘injury in fact’ standard.”)  

In order to fully account for the harm to water bodies from the effects of higher temperatures, it is important to consider the effects of both climate change and thermal industrial pollution together. Fortunately, federal law requires EPA to do just that when it conducts environmental reviews as part of its NPDES permitting process for new sources. For industrial facilities considered “new sources” under the Clean Water Act, 33 U.S.C. § 1316(a)(2), EPA must conduct an environmental review under the National Environmental Policy Act (NEPA). 33 U.S.C. §1371(c)(a). NEPA requires the federal agencies to fully consider the environmental impact of actions it permits by considering, among other things, the “cumulative impacts” of all actions that could impact the environment. 40 C.F.R. Parts 1500-1508; see 42 U.S.C. § 4332.

In a draft guidance document published in 2010, the Council on Environmental Quality recognized the importance of incorporating the effects of climate change on the environment when conducting an environmental review under NEPA. Council on Environmental Quality, 2010. DraftNEPA Guidance on consideration of climate change and GHG emissions.  Unfortunately, the cumulative effect of the impact of climate change is not always fully analyzed in NEPA reviews. See Patrick Woolsey, Consideration of Climate Change in Federal EISs, 2009-2011, Centerfor Climate Change Law, Columbia Law School, July 2012, at 15-16. By incorporating a robust analysis of the effects of climate change into its NEPA analysis for NPDES permitting decisions, EPA can better ensure that thermal industrial pollution does not compound the effects of climate change and exacerbate the plight of lobsters and other plants and animals that rely on a stable environment. 

Leading British economist Lord Nicholas Stern warns that we “grossly underestimate” the economic damage wrought by climate change. Indeed, lobsters are not the only aquatic organism that is sensitive to water temperature. The trout species that call Pennsylvania’s streams and rivers home also suffer stress at higher water temperatures. And, in fact, warming waters are but one of many of the impacts of climate change that can adversely affect both our environment and our economy.

To minimize those negative effects, we must not only address the direct causes of climate change, but we must also minimize other activities having negative effects on ecosystems. Although it will not stop climate change, if EPA closely monitors offshore and coastline discharges of heated water or other pollutants throughout the East Coast, it may improve the likelihood of survival for temperature-sensitive species like the New England lobster and Pennsylvania’s trout species. 

The Supreme Court, with a hiccup, holds EPA can regulate GHGs from new and modified stationary sources

On Monday, the U.S. Supreme Court issued its much-anticipated decision in Utility Air Regulatory Group v. EPA (UARG). The case embodied another industry challenge to the Environmental Protection Agency's (EPA) attempt to regulate greenhouse gas (GHG) emissions under the Clean Air Act (CAA). It’s often a poor sign for the environment when Justice Antonin Scalia delivers the majority opinion for the Court. In this instance, however, the majority upheld EPA’s authority to regulate GHG emissions under the Clean Air Act. The case did not play out exactly as the federal government had planned, however.

UARG involved challenges to EPA’s attempt to regulate GHGs from major stationary sources of air pollutants (power plants, factories, etc.) after its decision to regulate GHGs from mobile sources was upheld. Justice Scalia joined with the conservative block to rule 5-4 that EPA lacked “standalone” authority under the Clean Air Act to regulate GHG emissions from stationary sources.  He then, however, went on to join with the more liberal block (along with Chief Justice John Roberts and Justice Anthony Kennedy) to affirm 7-2 that EPA could regulate GHG emissions from stationary sources, so long as those facilities otherwise required an air permit for emitting conventional air pollutants. This means that there are now seven justices on the Supreme Court who affirmed that the Clean Air Act covers GHG emission since its 2006 decision in Massachusetts v. EPA.

In the Beginning There Were Mobile Sources

Section 202(a)(1) of the Clean Air Act (CAA), 42 U.S.C. § 7521(a)(1), requires the Administrator of the Environmental Protection Agency to set emission standards for "any air pollutant" from motor vehicles or motor vehicle engines "which in his judgment cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare." In 2003, the Bush Administration’s EPA denied a petition by twelve states (but not Pennsylvania) and several cities to regulate carbon dioxide and other GHGs from motor vehicles under the CAA. EPA took the position that it lacked the authority to regulate GHGs under the CAA, and even if it had the authority, regulation at that time was not consistent with President Bush’s policies to address climate change.

Total US Greenhouse Gas Emissions by Economic Sector
 in 2012 from EPA's Inventory of Greenhouse Gas Emissions

Petitioners brought suit to compel EPA to take action, and in April 2007, Justice John Paul Stevens led a 5-4 majority in Massachusetts v. EPA to reject EPA's argument that the CAA was not meant to cover carbon emissions. The Court said that the Act's definition of "air pollutant" was written with "sweeping," "capacious" language so that it would not become obsolete, and that the EPA could not delay its decision on the basis of prudential and policy concerns. Instead, EPA had to base any inaction on regulating carbon emissions upon a consideration of "whether greenhouse gas emissions contribute to climate change." In dissent, Justice Scalia argued that the Clean Air Act was intended to combat conventional lower-atmosphere pollutants and not global climate change.

Though President Bush issued an Executive Order requiring EPA to use its authority under the CAA to regulate carbon emissions from mobile sources in May 2007, it would not be for another two and one half years (December 2009) before EPA issued its "Endangerment and Cause or Contribute Finding, " which found, as required by Massachusetts v. EPA, that motor vehicle emissions of six GHGs threatened the health and welfare of current and future generations, which set up for the first time the promulgation of federal regulations to control carbon emissions from mobile sources. This led to the establishment of greenhouse gas emission standards under Section 202 of the CAA (the so-called "Tailpipe Rule").

And Then There Were New and Modified Stationary Sources (The Tailoring Rule)

Large stationary sources challenged the Tailpipe Rule because of concern that regulation of GHG emissions from mobile sources would lead to exactly what happened here, that EPA would have to regulate GHG emissions from stationary sources. The CAA says that its permit requirements apply to stationary sources emitting "any air pollutant." The EPA, in 2010, took the position that once the agency found that GHGs were enough to warrant vehicle regulations, the Act's permitting requirements were automatically triggered. Industry argued that the cost of regulating GHGs from stationary sources was so large that the EPA should not have regulated tailpipe emissions. A unanimous D.C. Circuit Court of Appeals, in Coalition for Responsible Regulation v. EPA, rejected this argument, holding instead that the EPA lacked any discretion at all in setting tailpipe emissions once it found that that greenhouse gases endanger public health and welfare.

The D.C. Circuit Court’s ruling cleared the way for EPA to move forward with regulating major stationary sources of GHG emissions. The challenge for EPA, however, was that the CAA defines "Major" as any source that emits 100 tons per year of a regulated pollutant, which only captures large facilities when measuring criteria pollutants, but when measuring GHGs, the same standard would capture thousands of very small sources such as homes and businesses. To avoid this problem, EPA sought to interpret or "tailor" its GHG rule to only apply to sources emitting 100,000 tons per year of GHGs (and existing sources making modifications that would increase emissions by 75,000 tons per year). Industry challenged application of the CAA to stationary sources, and EPA”s attempt to "tailor" the language of the CAA.

Utility Air Regulatory Group v. EPA

In UARG, the Supreme Court reviewed whether EPA’s Endangerment Finding and regulation of GHGs under Section 202 of the CAA triggered regulation of GHGs under EPA’s Prevention of Significant Deterioration (PSD) and Title V permitting programs, and whether EPA properly excluded a great number of those sources from regulation under its Tailoring Rule. It should be noted that while industry tried to again challenge EPA’s Endangerment Finding and setting of GHG standards for motor vehicles, the Supreme Court limited its consideration to whether the agency “permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouses gases.”

The Court ruled that EPA could not interpret the CAA in a manner that applied its PSD Program to sources emitting solely GHGs, as that would be inconsistent with the CAA’s structure and design, which intended only to impose those burdens on large facilities. The Court also held that EPA improperly attempted to "tailor" the CAA’s unambiguous numerical definitions of "major" source. Nonetheless, the Court said that EPA reasonably interpreted the CAA as requiring sources that required a PSD permit to comply with Best Available Control Technology (BACT) respecting GHG emissions. The CAA requires the application of BACT "for each pollutant subject to regulation" under the Act.

The case is Utility Air Regulatory Group v. Environmental Protection Agency, No. 12-1146.

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

Where does EPA’s 111(d) authority to regulate carbon emissions from existing power plants come from?

The news has been full of talk this week about the Environmental Protection Agency's (EPA) proposed public health standard to reduce carbon pollution from existing power plants by 30 percent from 2005 levels by 2030. We’ve blogged about it here and here and -- one more -- here. This is an encouraging development in the fight to limit damage from climate change, but where does EPA’s authority come from?

The short answer is that EPA’s authority comes from the Clean Air Act, which establishes a comprehensive federal regulatory regime for managing air pollution. The Clean Air Act was initially enacted in 1963 but has been amended several times since then. Among other things, the Act establishes a system for achieving national ambient air quality standards (NAAQS) for certain air pollutants, and addresses releases of substances designated hazardous air pollutants (HAPs). EPA credits the Clean Air Act with reducing emissions of NAAQS-related pollutants – particles, ground-level ozone, lead, carbon monoxide, nitrogen dioxide and sulfur dioxide – by an average of 72 percent since 1970 while the nation’s economy was more than doubling in size. In addition to domestic air pollution controls, the Clean Air Act has been used as a tool to address global problems, such as implementation of the Montreal Protocol, which has been successful at managing ozone-depleting substances to prevent further damage to the planet’s stratospheric ozone layer.  

To regulate carbon emissions from existing power plants, EPA is proposing to use its authority under Section 111(d) of the Clean Air Act, 42 U.S.C. § 7411(d). That section allows the agency to require each state to submit a plan for achieving performance standards for existing sources of air pollution – in this case, carbon dioxide from power plants. Under its proposed rule, EPA would require each state to submit a plan demonstrating that existing electric power plants would be able to meet a state-specific carbon reduction goal by 2030. If all states meet their goals by 2030, the country as a whole will reduce its carbon emissions by 30 percent from 2005 levels. EPA’s proposed rule allows states a considerable amount of flexibility in deciding how to achieve their targets. For example, states are allowed to achieve emission reductions in a number of ways – both by achieving efficiency within power plants themselves and by using “outside the fence line” techniques that will reduce demand for power from plants that burn fossil fuels. This flexibility will enable states to accomplish the goals EPA has set in a way that is good for both the environment and the economy.

Although EPA’s proposed rule already has generated controversy and, when finalized, may generate litigation, we hope and expect that by the year 2030, the significant reduction in carbon emissions required by yesterday’s proposed rulemaking will be added to the list of accomplishments enabled by the Clean Air Act.

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

The Curious Case of DCNR's Streambed Leases

In 2012, we noted a new Department of Conservation and Natural Resources (DCNR) policy statement titled “Shale Gas Development Beneath Publicly Owned Streambeds” and posed this question: How many wells have been drilled beneath publicly-owned streambeds in Pennsylvania without a lease i.e., without permission from the DCNR or compensation for the public?

Yesterday, StateImpact Pennsylvania revealed that since 2012, the DCNR has entered into a total of nine streambed leases for gas well drilling beneath publicly owned streams. The article highlighted four leases executed in 2014 covering more than 1,400 acres of land under four prominent publicly-owned streams – the Susquehanna River, Black Lick Creek, Ten Mile Creek, and Dunkard Creek.

The StateImpact article also revealed that, after discovering around 2009 that some gas companies had illegally drilled under public streambeds without leases, DCNR entered into after-the-fact leases as a form of “enforcement action to collect money owed to the Commonwealth.” The article noted, however, that according to Governor Corbett's press secretary, “the state has not sought to get retroactive payments from the drillers,” apparently meaning that the Commonwealth has not sought to collect royalties for gas extracted before the after-the-fact leases were signed. The amount of foregone royalties is unclear.

Our research indicates that four of the other (reportedly five) streambed leases executed by DCNR since 2012 are as follows:

• A February 15, 2013 lease to Anadarko E&P Company, LP for 9.197 acres under the East Branch of Wallis Run in Lycoming County, just south of the Loyalsock State Forest; 

• A February 19, 2013 lease to Anadarko E&P Company, LP for 59.62 acres under Beech Creek in Clinton County;

• An April 13, 2013 lease to R.E. Development, LLC for 138 acres under Connoquenessing Creek in Butler County;

• A December 2, 2013 lease to EQT Production Company for 2.55 acres under Ten Mile Creek; 

We could not locate a fifth lease.

The news of these leases raises several questions.

First, is the $5.9 million in bonus money from the four new leases a part of the $75 million to be raised this year from non-surface DCNR leases under Governor Corbett’s proposed budget? Or is the $5.9 million in addition to that $75 million?  

Second, as far as we can tell, the DCNR has issued public notice in the Pennsylvania Bulletin for only one of the nine streambed leases executed since 2012 – the R.E. Development lease.  Why were the others not noticed?

Third, to repeat our question from 2012, how many wells have been drilled beneath the Commonwealth’s publicly owned streambeds without a lease – and how much revenue has the Commonwealth left on the table by not taking legal action against operators who have drilled such wells?

Questions aside, yesterday’s news highlights the continuing lack of transparency in the DCNR’s oil and gas leasing program and the fact that the DCNR’s regulations, which contain thirteen separate provisions regulating State Forest picnic areas, are completely silent on the question of oil and gas drilling on and under State Forests, State Parks, and publicly-owned streambeds.

Mark Szybist is a staff attorney for PennFuture and is based in Wilkes-Barre. He specializes in oil and gas law.

DEP's Alphonse and Gaston routine

Alphonse and Gaston were characters in an eponymous early 20th century cartoon strip whose excessive politeness and repeated deference prevented them from so much as getting though a doorway. Inspired by their routine – “After you, Alphonse.” “No, you first, my dear Gaston.” – baseball broadcasters still describe two fielders who both shy away from a catchable fly ball as “pulling an Alphonse and Gaston.”

As baseball season approaches, two units of Pennsylvania’s Department of Environmental Protection (DEP) are pulling their own, bureaucratic version of the Alphonse and Gaston routine. DEP’s version, however, is not funny.

Citizens and regulators from several government agencies have repeatedly observed excessive amounts of sediment being carried into a High Quality segment of the Youghiogheny River adjacent to the Great Allegheny Passage in Fayette County. The sediment is generated by erosion occurring on a parcel of land known as the Curry site, where timbering activities have exposed and disturbed the soil.

Enter Alphonse.

Most erosion and sedimentation problems in Pennsylvania are handled by DEP’s Waterways and Wetlands (W&W) Program, which delegates some regulatory responsibilities to county conservation districts. If you call W&W or the Fayette County Conservation District, however, you are told that they lack jurisdiction (authority) over the Curry site because it is a permitted surface coal mine. W&W suggests that you call DEP’s Greensburg District Mining Office.

Enter Gaston.

DEP’s Mining Program takes exactly the opposite view on the jurisdiction issue: The mining company has not yet activated its mining permit and is not performing the timbering, so the Mining Program has no regulatory authority over the erosion and sedimentation problems. They suggest – as you might have guessed – that you call W&W or the Conservation District.

While DEP performs this regulatory Alphonse and Gaston routine and watches the ball drop, the sediment continues to flow into the High Quality waters of the Youghiogheny.

As in baseball, giving up a “hit” this way is both embarrassing and avoidable. Ultimately, DEP’s W&W and Mining Programs answer to the same Secretary. Like a pitcher who takes charge by calling out which of two infielders should handle a pop-up, DEP Secretary Abruzzo should direct W&W or Mining to step up and make the play. If each unit of DEP has jurisdiction over different responsible parties, the Secretary should direct both units to take action to protect the Yough.

One way or another, somebody should catch the ball.

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

Act 13 case: Court sets aggressive schedule, impact fee likely to remain intact

The Pennsylvania Commonwealth Court issued an order last week in Robinson Township v. Commonwealth of Pennsylvania, No. 284 M.D. 2012 (Pa. Commw.), setting briefing and hearing schedules. As we’ve discussed previously on this blog, Robinson Township has been remanded by the Pennsylvania Supreme Court to the Commonwealth Court for further proceedings after the Supreme Court overturned parts of the Commonwealth Court’s original ruling and upheld other portions that invalidated certain provisions of Act 13.

The Commonwealth Court’s order imposes a fairly aggressive schedule on the parties. The Court directs parties to file affirmative briefs supporting their various requests for pre-trial relief by April 1, 2014. Each side will then have the opportunity to respond in writing to the other side’s submission by April 21, 2014. The parties will then appear in court to present their arguments before an “en banc” panel of seven Commonwealth Court judges on May 14, 2014. 210 Pa. Code 3103(a)(2).

During this round of briefing, the parties will address: • Whether the portion of Act 13 regarding which parties are entitled to receive notice of a spill constitutes a “special law” or a violation of equal protection. • Whether portions of Act 13 related to the jurisdiction of the Public Utility Commission must be struck down because they are incapable of standing on their own in the absence of other provisions that have been deemed unconstitutional by the Supreme Court. The parties will also resubmit briefing that they previously submitted to the Court about: • Whether Act 13 effects a ‘taking’ by allowing well operators to take private property for use in its operations. • Whether the ‘gag rule’ covering the ability of health care practitioners to communicate about the chemical composition of fluids used in fracking is constitutional.

The media has reported that the parties and Court have agreed to limit their consideration of severability to several discrete provisions of the law. That suggests that other sections of Act 13 (including the impact fee) not directly implicated in the Robinson Twp. case are likely to remain intact.

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

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.

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.