Temblor in the Quaker State: PA Supreme Court Ruling Stuns Fracking Industry

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by Eric Ellman
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When House Bill 1950 became law in Pennsylvania almost two years ago it substantially increased obligations for companies harvesting natural gas from the rich seams of Marcellus Shale that lie beneath much of the eastern part of the state.  Its Article 6 established impact fees and pegged them to the price of gas at up to $60,000 a year per well.  Setback distances for drilling from homes and waterways were increased.  The “rebuttable assumption” that holds drillers liable for water quality impacts occurring within 6 months of drilling a well within 500’ of a water source was extended to 1000’ feet and one year.  Civil penalties were increased from $25,000 plus $1,000 per day of ongoing violation to $75,000 plus $5,000 per day.1 It didn’t look like a bill that industry had written.

Except for two small things: The bill allowed for Pennsylvania’s Department of Environmental Protection (DEP) to waive many of the restrictions on a case by case basis, and it essentially preempted the right of municipalities to pass their own more stringent legislation.

Delaware Riverkeeper Network spokesperson Mary K. van Rossum describes the bill and the generous disbursement of impact fees among affected communities a quid pro quo for gas companies to gain the right to drill “anywhere” in the state.  Calling it a sell-out by the DEP to industry, her organization joined seven communities that sought to prohibit fracking in their towns and filed suit.  On December 19 the Pennsylvania Supreme Court agreed with them, retaining the impact fees but declaring other aspects of Article 6 unconstitutional.  As a consequence local communities retain their right to establish zoning guidelines and a gag order on physicians advising their patients on potential health effects related to drilling was lifted.  But complexities in the law meant that all setback requirements were lifted in the process.

The ruling surprised people on both sides of the issue.  It was a huge and unexpected win for the anti-fracking contingent (“David slays Goliath,” trumpeted State Senator Jesse White), and a stunning reversal for Governor Tom Corbett who saw the bill as a model for balancing the needs of industry and the environment.  His legal team has already requested the Court reconsider the decision, and met with drilling company associations who pledged to respect the nullified set-back requirements until a new status quo is restored. 2

David Spigelmyer, President of the Marcellus Shale Coalition, says the ruling leaves companies to deal with municipal zoning as they’ve usually done, on an ad hoc, community-by-community basis.  But he fears the implications may go wider.  An appellate court will review the law in its entirety while the Supreme Court weighs the Governor’s request for reconsideration based on “an unrestrained venture into a fact-finding role that the Court always has insisted is not its proper place in the judicial system.” 3

Though his scientific underpinnings weren’t cited, “unrestrained” was a fair description of the Chief Justice’s opinion: “By any responsible account,” he wrote, “the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.”

A century of coal mining has undoubtedly had a heavy toll on Pennsylvania’s land and water.  And we now know that the coal it produced has led to an even greater cost in deaths from respiratory ailments and contributions to greenhouse gases.   But does any “responsible account” conclude that harvesting Pennsylvania’s shale gas bounty will necessarily lead to the same?

Last Fall, Robert Jackson of Duke University published his study of methane in Marcellus area wells in Proceedings of the National Academy of Sciences.  He found methane levels in over 2/3 of the 141 wells he tested, with levels up to six times higher in those wells located within 1 mile of a gas well.4  Clearly the potential for contamination exists. 

More recently, the Environmental Defense Fund collaborated with the University of Texas to study methane leakage from wells to the atmosphere, a potential contribution to climate change that could offset all the greenhouse benefits of shale gas versus coal. “Green completion” measures successfully contained the gas on wells tested.  So the potential for managing the industrial process exists too.5  How legislation will be rendered that makes use of the technology to do that, and who will write it, for now remains as elusive a question as ever.

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1. www.legis.state.pa.us/cfdocs/billinfo/billinfo.cfm?syear=2011&body=H&typ…

2. www.post-gazette.com/news/state/2014/01/02/Corbett-administration-asks-t…

3. www.thinkprogress.org/climate/2014/01/07/3127941/corbett-act-13-confuse/

4. www.scientificamerican.com/article.cfm?id=groundwater-contamination-may-…

5. www.edf.org/media/first-academic-study-released-edf%E2%80%99s-groundbrea…

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