Playing ping pong with important issues: Where is Governor Corbett on forced pooling?

The Pennsylvania Environmental Hearing Board issued a decision yesterday rejecting the Corbett administration's attempt to have the EHB decide whether a gas company could use forced pooling in the Utica Shale formation.

Forced Pooling
"Pooling" enables companies to combine adjacent tracts of leased land into one unit from which they can develop the gas. "Forced pooling" generally allows a company to access minerals beneath private property even if the landowner opposes drilling, and without having to independently reach a financial agreement with a willing landowner. Many, including Governor Corbett, have described "forced pooling" as "private eminent domain" because it allows the company to forcibly take away one of the bundle of rights commonly associated with private property ownership.

The Pennsylvania Oil and Gas Conservation Law is a 50-year-old statute that was enacted before horizontal drilling made development of the Marcellus and Utica Shale economically feasible. The Conservation Law only applies to wells that penetrate the Onondoga formation - which lies beneath the Marcellus and above the Utica Shale. Before drilling a well that penetrates the Onondoga, gas drillers must obtain a permit from the Department of Environmental Protection (DEP). Once a well has been drilled into the Onondoga, the operator can apply for a well spacing order from the DEP, which has the ability to limit wells that will be located in the spacing unit within a ten-square-mile area.

The Conservation Law further allows that when a spacing unit includes multiple real estate parcels that are owned separately, the owners may voluntarily integrate their parcels for the purpose of developing the resources within the unit. But if the landowners do not reach a voluntary agreement, "an operator having an interest in the spacing unit" can apply for an integration order with "terms and conditions that are just and reasonable." In other words, for wells that penetrate the Onondoga such as Utica Shale wells, the Conservation Law seemingly allows companies to obtain government orders that require "forced pooling" of parcels within the unit.

DEP Sends Hilcorp To The EHB
In July 2013, Hilcorp Energy Company submitted an application to DEP asking it for a well spacing order regarding the Utica Shale formation for 3,267 acres in Lawrence and Mercer counties – all but 35 acres of which the company has under lease. Hilcorp's request included a forced pooling order regarding the 35 acres of private property that the company does not have under lease. But the Corbett administration apparently wanted nothing to do with it, as its DEP directed the company to apply to the Environmental Hearing Board for relief instead.


The EHB Punts It Back To DEP
At DEP's direction, Hilcorp filed an application to the EHB either for a well spacing order under the Conservation Law, or an order requiring DEP to act on its application. On Wednesday, the EHB rejected DEP's arguments that it, and not the agency, had the responsibility for making forced pooling decisions. Judge Mather's stinging concurrence described the DEP's position as "Orwellian" and counter to the agency's forty-two year history of implementing the Conservation Law. Though the EHB directed Hilcorp to file its application with the DEP, it stopped short of an order directing DEP to act on the application.

Corbett's Next Move
It is understandable why the administration sought to avoid its responsibilities under the Conservation Law. Gov. Corbett has been, at best, inconsistent on forced pooling.  On the one hand, he made public statements opposing the very concept, calling it "private eminent domain." And yet, in July he signed a bill that allowed companies to force pooling on property owners where the companies hold leases that did not otherwise give them that right. In that instance, the administration seemed completely ignorant that the law takes away the right of property owners to negotiate a fair price for the company to pool the mineral rights - the very definition of "forced pooling."

So the question is, what is the administration's next move? Does it direct the DEP to do its job under the Conservation Law? Does it appeal the EHB's decision? Does it enlist the legislature to amend the Conservation Law? Or does it try to find another governmental agency other than the EHB that will make the decision?

Stay tuned. Forced pooling is back in the news and its not likely to go away anytime soon.

The devil in chapter 78

Last year, Governor Corbett signed into law Act 13 of 2012, the first comprehensive revision of Pennsylvania’s oil and gas law since 1984.

Soon – perhaps as early as Friday – the Pennsylvania Environmental Quality Board (EQB) will seek public comment on the first major revisions of Pennsylvania’s oil and gas well regulations (which are set forth at 25 Pa. Code Chapter 78) since 1989. The revisions run to some 74 pages.

Generally speaking, Pennsylvania environmental law takes two forms: (1) statutes like Act 13, which are passed by the General Assembly and signed into law by the governor; and (2) regulations, which are promulgated by the EQB, a special governmental body whose sole function is to establish regulations for the Department of Environmental Protection (DEP). Though not technically considered laws, terms and conditions set forth in permits issued by DEP constitute a third variety of enforceable standards and restrictions.

Statutes are the broad strokes of the law – detailed in places, but typically rich in ambiguities and gaps, often due to legislative compromise. Regulations “implement” statutes by clarifying ambiguities and filling gaps; they are the tools that state agencies use to give effect to the statutes they administer. Permit terms apply statutes and regulations to particular activities.

The purpose of the upcoming Chapter 78 revisions is twofold: First, to implement Act 13, and second, to codify a number of regulatory approaches that the DEP has so far implemented only through permit terms, such as design and construction standards for centralized wastewater impoundments.

In the coming weeks, this blog will return to parts of the Chapter 78 revisions that merit particular public attention and comment. We all know who skulks in the details.

U.S. Supreme Court to Review EPA Greenhouse Gas Permitting Requirements for Industrial Facilities

On Tuesday, the United States Supreme Court agreed to consider challenges to the Environmental Protection Agency's (EPA) application of Clean Air Act permitting requirements to greenhouse gas emissions from stationary sources.

The six petitions for certiorari invited the Court to take up a long list of issues, including the extent of EPA’s authority to regulate greenhouse gas emissions.
The Supreme Court, however, limited its review to a single question: “Whether EPA 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 greenhouse gases.”

Although the Supreme Court’s decision to consider this issue could potentially be a setback for EPA’s ability to regulate greenhouse gas emissions from certain industrial facilities, the limited scope of the Court’s review means that much of the agency’s efforts to curb greenhouse gas emissions will remain unaffected. For example, the Supreme Court is NOT reviewing EPA’s determinations that:

• Greenhouse gases may be regulated as a pollutant under the Clean Air Act;

• Greenhouse gases are a threat to public health (Endangerment Finding); and

• Regulation of vehicle tailpipe pollution is appropriate under the Clean Air Act (Tailpipe Rule).

The sole issue before the Court will be whether EPA’s regulation of greenhouse gases from vehicles automatically triggers permitting requirements for stationary sources under other provisions of the Clean Air Act.

Under the Clean Air Act, any facility considered a “major emitting facility” that undergoes construction or modification must obtain a permit and install the “best available control technology” (BACT) for any pollutant subject to regulation under the Act. 42 U.S.C. § 7475(a). A “major emitting facility” is defined in the Act as a stationary source that may emit a threshold amount of “any air pollutant.” 42 U.S.C. § 7479(1).

EPA interprets “any air pollutant” to mean “any air pollutant regulated under the Clean Air Act.” Thus, under EPA’s reasoning, once EPA began regulating greenhouse gases as air pollutants for new motor vehicles, all stationary sources that had the potential to emit the threshold amount of greenhouse gases would be required to install BACT and apply for a permit.

The D.C. Circuit Court of Appeals considered this issue in its 2012 decision in Coalition for Responsible Regulation, Inc., et al., v. United States Environmental Protection Agency, 684 F.3d 182 (D.C. Cir. 2012), and upheld EPA’s interpretation of the Clean Air Act, holding that the text of the statute was unambiguous and "compelled" EPA’s interpretation. The Supreme Court will now review this aspect of the decision. Oral arguments are likely to be held in early 2014, and a decision is expected by June 2014.

Although the Court’s decision to review this single issue is concerning, it is important to recognize that, regardless of the outcome of the Supreme Court case, important programs for reducing greenhouse gas emissions will remain in place.

VICTORY: Bringing a water supply to a polluted town

This post is one in a month-long series speaking to 15 of PennFuture's significant victories. It was 15 years ago this September that we began our work to protect the environment and champion a clean energy economy.

For decades, citizens in one of the poorest areas of Butler County had lived with the remains of its industrial past. A chemical plant had dumped hazardous substances into ravines throughout the community, contaminating the public drinking water supply and many private water wells in and around the town of Petrolia.
 
Despite requests from local residents, both the U.S. Environmental Protection Agency and the Pennsylvania Department of Environmental Protection (DEP) failed to take action against the company responsible for the contamination, or even investigate the full extent of groundwater contamination in the community.
 

Frustrated by 20 years of official inaction, local citizens formed a group to look for legal assistance. Their search led them to the California law firm that employed Erin Brockovich as an investigator, and though that firm would not take the case, it suggested that the group contact a local nonprofit known as PennFuture. The group reached out, and PennFuture staff immediately responded by traveling to the rural valley to meet with concerned residents. We soon developed a plan of attack.

Representing nearly 100 families, PennFuture went public with its demand that DEP immediately provide safe drinking water to the community, and initiated a suit against the company responsible for the past waste disposal.

DEP responded by providing temporary drinking water to area residents, eventually earmarking $18 million to clean up the dump sites and build a new public water system that would supply residents with a permanent, safe source of drinking water. The company contributed to the cleanup through a settlement with DEP, and established a separate fund to reimburse our clients for the increased costs associated with their use of the public water supply.

The new water supply for the Petrolia Valley was completed in 2006. As of this month, the DEP continues to make slow progress on cleaning up the waste piles that originally contaminated area drinking water supplies in the town of Petrolia.

Third Circuit Preserves Common Law Nuisance Claims To Correct Harmful Air Emissions

Counsel for property owners residing near dirty coal plants will be pleased with the Third Circuit's decision in Bell et al. v. Cheswick Generating Station, Genon Power Midwest, L.P., No. 12-4216 (3d Cir. Op. filed Aug. 20, 2013). The Third Circuit held that the federal Clean Air Act does not pre-empt state law nuisance claims.

Plaintiffs Bell and Luppe were named plaintiffs in a class action representing 1,500 persons residing near Genon's 750-megawatt coal-fired power plant located in a bedroom community north of Pittsburgh along the Allegheny River.  The community, Springdale, also happens to be home to one of the finest old-fashioned custard stands east of the Mississippi.

Genon Power Plant
Springdale, Pa.

Plaintiffs sued under a variety of state law tort theories, alleging that ash and other contaminants from the plant were harming their property. Genon sought summary judgment, asserting that the Clean Air Act (CAA) pre-empted the state law claims.

The CAA's citizen suit provision contains a savings clause that reads:

"Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief (including relief against the Administrator or a State agency)."

The CAA also contains a so-called "state's rights" savings clause that protects the right of states to impose limits that are more stringent than federal law.

In a matter of first impression, the Third Circuit's analysis was guided by the Supreme Court's decision in International Paper Co. v. Ouellette, 479 U.S. 481 (1987).  There, property owners on a lake sued under state common law theories for reduced property values being caused by a pollutional discharge into the lake.  The Supreme Court found that the Clean Water Act's (CWA) savings clauses preserved the right of states to impose standards that were more stringent than federal law, and that those more stringent standards could be imposed either by statute or through the common law.

Finding no meaningful difference between the savings clauses under the CAA and CWA, the Third Circuit properly concluded that Ouellette controlled its decision and remanded the case to the district court for further proceedings.

The CAA's national ambient air quality standards are intended to protect public health and welfare. The secondary standards, in particular, are designed to prevent impacts to things such as buildings.  As a practical matter, compliance with those standards should shield good operators from these types of common law nuisance suits. But the Third Circuit recognized that the principles of cooperative federalism embodied in the CAA provide plaintiffs another tool to redress harm where the federal regulatory framework fails to prevent harm to local residents, as alleged in this case.

In Pennsylvania, the General Assembly has made it difficult for the state to adopt regulatory standards that are more stringent than federal law. Section 4.2(b) of Pennsylvania's Air Pollution Control Act prohibits the Environmental Quality Board from adopting control measures and other requirements that are more stringent than federal law without substantial justification. As such, the Third Circuit's decision preserving common law nuisance claims has particular import for Pennsylvania residents allegedly being harmed by air pollution.

Act 13 Watch: PUC and DEP File Petition To Get New Justice Involved

As has been reported, the Pennsylvania Public Utility Commission (PUC) and Department of Environmental Protection (DEP) filed a joint petition last week requesting that the Robinson Township case, which challenges the constitutionality of Act 13, be resubmitted to the full Court so that new Justice Correale Stevens may participate in the  decision. 

When oral argument was heard on October 17, 2012, there were only six justices on the bench as former Justice Joan Orie Melvin was suspended while being prosecuted for public corruption charges. She was eventually convicted.

Governor Corbett appointed Correale Stevens to replace Melvin. He was sworn in last Tuesday, and though the Supreme Court has yet to decide the Robinson Township case, it said that Stevens would not participate in the decision unless he heard oral argument. According to StateImpact, a spokeswoman for the Court indicated that it has rarely ordered re-argument, but that another avenue for Stevens to participate might be for the parties to resubmit briefs. Considering that the Supreme Court said that oral argument was an "integral" part of their decision-making process, it is difficult to understand how resubmitting briefs in an already well-briefed case would, by itself, make a difference in whether Justice Stevens should participate in the decision.

To review, the Commonwealth Court in Robinson Township decided that a provision of Act 13, which mandated municipalities to allow industrial activities in areas not zoned for those activities, unconstitutionally harmed those that depended on that zoning to purchase property in the district, in violation of their substantive due process rights under Art. 1, Sec. 1 of the Pa. Constitution. The Commonwealth Court also declared unconstitutional a separate provision granting DEP the right to waive gas well set-back requirements because the legislature provided no guidance for the executive branch agency to exercise that discretion, in violation of Art 1, Sec. 2 of the Pa. Constitution. In effect, the Court said that the legislature did not properly delegate its authority to the DEP.

While on the Superior Court, Justice Stevens issued no opinions on the constitutional provisions relied on by the majority in Robinson Township to strike down portions of Act 13. He did participate in a handful of decisions that raised substantive due process claims, but those cases were criminal cases that shed little light on his views. For example, Commonwealth v. Gaines involved a claim that substantive due process entitled an individual to have his arrest record expunged, and Commonwealth v. Teeter involved an individual's right to be free from vague and discriminatory sentencing statutes. Both principles are well established, but the claims of the individual defendants were rejected in those cases without much analysis.

During his tenure, Justice Stevens has not issued or joined an opinion that reveals his view of how the courts should use substantive due process to protect an individual's right to life, liberty and, in particular, the right to acquire, own and protect property as guaranteed by Art 1, Sec. 1 of the Pa. Constitution.

Pa. Supreme Court watch: Act 13 may still only have six justices voting

We previously did a review of candidates forwarded by Democratic senators for Governor Tom Corbett to consider for appointment to the Pennsylvania Supreme Court.

Corbett appointed Correale Stevens, one of the five nominees forwarded to him by Daylin Leach, Democratic Chair of the Senate Judiciary Committee, and then the President Judge of the Superior Court.

It was thought by some that the Supreme Court was waiting for the seat of convicted Justice Joan Orie Melvin to be filled, before it made a decision on the constitutionality of Act 13.

But last week I was talking to a reporter from Platts, an energy sector news service, and she informed that the Supreme Court told her that Justice Stevens would not participate in any decision in which he had not heard oral argument.

This means that the Supreme Court will either make its decision on Act 13 based on the votes of six justices, or the Court will need to order re-argument if Justice Stevens is to take part in the decision.

The takings hits keep on coming from the Supremes

The Supreme Court, on June 25, handed down its decision in Koontz v. St. John's River Water Management District. The 5 to 4 decision should be of keen interest to regulators who must decide how to issue permits for construction projects that impact wetlands.

In takings cases, the general concern is whether government regulation so severely restricts a person's use and enjoyment of their real property as to effectuate an unconstitutional "taking without just compensation" in violation of the Fifth Amendment, the classic case being Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978).

The Supreme Court's decisions in Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), layered another level of protection for property owners in special cases involving land exactions - that is, where the government seeks to have a person surrender real property in exchange for a permit to develop a piece of land. To avoid an unconstitutional taking, the government must demonstrate that its demand bears a logical relationship (or “nexus”) to, and is proportional to, the impacts of the proposed land development.

In Koontz, Justice Alito, writing on behalf of the Supreme Court's conservative majority, said that (1) it doesn't matter whether the state issues a permit with an unconstitutional condition or denies the permit because the applicant will not assent to the unconstitutional condition - both cases are unconstitutional; and (2) even when the government demands monetary expenditures as compensation for harm, that claim must satisfy the Nollan and Dolan standards of nexus and proportionality.

As in Pennsylvania, Florida law requires a person obtain a permit to build in a wetland, and in the process, the applicant must mitigate any harm to the wetlands.  Koontz offered to provide a conservation easement to the state for almost three-quarters of his property as mitigation for harm to a portion of the wetland. The Conservation District wanted a smaller development and a larger easement than what Koontz had offered. As an alternative, the District requested that Koontz hire a contractor to make improvements to wetlands several miles away.  Koontz filed suit under a state law allowing for takings claims, and the District denied the permit.

The trial court found that the District had acted unlawfully because the conditions were unreasonable for failing to satisfy standards of  Nollan and Dolan.  The State Supreme Court reversed on two grounds - that the case was distinguishable because the District ultimately denied the permit, and that a takings claim could not be based on a demand for money. The U.S. Supreme Court overturned that decision.

In a dissenting opinion authored by Justice Kagan, the Supreme Court's minority only contested the second part of the majority decision - that Nollan and Dolan should not be extended to cases where the government conditions issuance of a permit on the expenditure of money.  Nollan and Dolan, Kagan argued, should apply "only when the property the government demands during the permitting process is the kind it otherwise would have to pay for—or, put differently, when the appropriation of that property, outside the permitting process, would constitute a taking."

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.