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.

DEP sends strong warning that expedited cannot mean slapdash

The flurry of activities occurring in the Marcellus Shale regions of Pennsylvania, such as well pad, pipeline and compressor station development, could do major violence to our water resources if activities are not carefully regulated.

Fortunately, the Pennsylvania Department of Environmental Protection (DEP) requires persons proposing to disturb five acres or more of land in connection with such activities to obtain coverage under an erosion and sediment control permit. The terms and conditions of this permit are intended to protect our water resources.

Unfortunately, DEP offers an expedited review process under which applicants are guaranteed permit coverage within 14 business days. To qualify for an expedited permit, applications must be prepared and certified by a licensed professional registered in Pennsylvania who has attended a mandatory training.

PennFuture does not support the expedited permit review process because we believe every application should receive a complete technical review from DEP staff to ensure that oil and gas activities will not degrade rivers, streams, and other bodies of water. Nevertheless, we were pleased to find some encouraging news related to the expedited permit review process on the Environmental Hearing Board docket last week.

Attached to a notice of appeal filed by AECOM Technical Services Inc. was a letter suspending an AECOM employee's ability to utilize the expedited permit review process in the future based on an application she prepared for the Williams Field Services Company, LLC Springville Gathering Line Project in which she allegedly failed to identify a number of water resources, resulting in a whopping 34 unauthorized impacts to wetlands and streams, at least some of which appear to have been entitled to special protection.

DEP also appeared to raise the possibility of a criminal investigation when it invoked the provisions of Pennsylvania law that relate to false swearing and unsworn falsification to authorities. The suspension and implied threat of criminal prosecution should send a strong message to all professionals: They must comply with the law when preparing erosion and sediment control permit applications.

PennFuture hopes that all licensed professionals registered in Pennsylvania, as well as the gas companies that retain their services, are listening carefully.