Monday, December 16, 2013

Pa. regulators seek public comment on shale development Seven years into the play, hearings intended to shape regs

We will soon know how passion and reason of stakeholders and the general public might shape regulations of shale gas development in Pennsylvania.

The state Department of Environmental Protection is holding a series of public meetings on provisions of Act 13, a bill intended to upgrade the state’s Oil & Gas law to accommodate unconventional gas extraction. The DEP is charged with taking into account public sentiment as it draws up specifics to implement the bill, which Governor Tom Corbett signed into law last year. Issues range from impacts on parks and wildlife areas to managing waste disposal and spills. The draft rulemaking also includes standards affecting the construction of pits, gathering lines, and temporary pipelines, provisions for identifying and monitoring abandoned wells (and related hazards of drilling through them) and the industry practice of spreading brine, which can include radio-active material and other well waste, on roads.

These and other highlights are summarized on the DEP website. But the overview does not mention key elements of Act 13 that have spawned controversy and law suits, and which are bound to also come up at the hearings. One is a provision regulating physicians who treat patients suffering from exposure to drilling and fracking chemicals. Commonly known as “the gag rule,” the regulation prohibits doctors’ access to information about chemicals in exposure cases. To get this information, physicians must sign a legal contract that prevents them from sharing it with anybody, including other health care providers.  In October, a U.S. District Court threw out a doctor's claim that the rule violates First Amendment rights. The ruling was made only because the doctor, Alfonso Rodriguez, brought the case before the court as a hypothetical situation, and therefore did not have standing. It did, however, leave the door open for claims based on actual events. (More on that here.)

Another touchy provision of Act 13 limits the power of municipalities to influence or ban development within their borders, while allowing drill rigs, waste pits, and pipelines in residential districts. The matter is now before Pennsylvania’s high court after municipalities -- including South Fayette in Allegheny County; and Peters, Cecil, Mt. Pleasant and Robinson in Washington County – successfully argued before the Commonwealth Court that the law was unconstitutional.

UPDATE: On Dec. 19th, the Pennsylvania Supreme Court ruled that part of Act 13 restricting local jurisdiction over gas wells was unconstitutional.

The Oil and Gas industry is exempt from both local and national regulations that apply to other business, ranging from zoning to the handling and disposal of hazardous waste. The justification for this (as I discuss in previous posts): cheap fossil fuel cannot be pulled from the earth with an overabundance of nit–picking inspectors and onerous regulatory burdens.

The degree to which shale gas operations should be regulated, and under which jurisdiction, is one thing. Banning them altogether is something different. The Environmental Quality Board, chaired by the Secretary of DEP, is responsible for adopting regulations and considering petitions to change them, and it will be interesting to see how much of a platform the hearings will become for stakeholders who want no regulation, some regulation, or an outright ban.

A 60-day comment period on the rule-making process began Sunday. The first of seven public hearings across the state is scheduled for Jan. 7 in Wyoming County. Officials have also scheduled informational webinars on Dec. 19, from 2:30 p.m. to 3:30 p.m., and Friday, Jan. 3, from 9:30 to 10:30 a.m. For information about schedules and how to submit testimony, click here.

Since the Marcellus drilling boom began in 2006, more than 6,500 shale wells have been drilled in Pennsylvania – making the Marcellus the number one natural gas play in the country. With the encouragement of pro-drilling governors, first Ed Rendell and now Tom Corbett, the DEP approach has been regulate-as-you-go. That’s a striking contrast to New York state, where officials suspended permitting for high volume hydraulic fracturing in 2008 pending an environmental review and policy overhaul, now in its sixth year and still absent resolution to questions about health impacts. As I have written in Under the Surface, contrasting political cultures and histories in New York and Pennsylvania have shaped the states’ respective approaches to shale gas development. The delay in New York has encouraged anti-fracking activists – bolstered by governor Andrew Cuomo’s liberal base advocating renewable energy - to organize campaigns against the industry, and use public meetings to showcase their opposition.

Will the forthcoming hearings in Pennsylvania also become a showcase for anti-frackers? Perhaps, but it is unlikely they will follow the pattern in New York. The organizational challenge to tip the balance away from the status quo is daunting, especially in this late stage of the game. For anti-frackers to simply show up is part of it, but influencing the process requires comments that are on point and informed. This is a strong suit for industry professionals, who make a living out of mastering policy and related practical, legal, economic, and regulatory intricacies.  And there are thousands of these details with far-reaching consequences encompassing a spectrum of issues, ranging from exemptions to burden of proof to liability to enforcement to bonding to well construction standards to impact fees and taxes… Etc, etc.

Doug Shields, an outspoken industry critic who was instrumental in passing a fracking ban when he was a Pittsburgh councilman in 2010, was later featured in Josh Fox’s Gasland II as a person on the front line of the anti-fracking movement in Pennsylvania. He told me that he expects activists to attend the DEP hearings to exert political pressure, but it will take more than that to significantly alter the course of fracking in Pennsylvania. “A big turnout sends a message to the elected,” he said. “But the meat and potatoes on regulations will be on the technical points.”  He added that he also expected some of the large environmental NGOs to take the lead in assessing and critiquing chapter and verse of the state’s proposal. ‘We will need to get some technical expertise to look at the proposed regulations and determine where the weaknesses are.”

In New York, the anti-fracking movement was able to draw on active chapters of groups such as the Sierra Club and the National Resources Defense Council, combined with  decisive technical help from figures such as Sandra Steingraber and Walter Hang, who each led sophisticated and ultimately effective critiques of New York’s draft guidelines and regulations. Advancing grass roots opposition early in the process on technical rather than ideological grounds, Hang marshaled letter writing campaigns and list serves to educate followers on the nuts and bolts of proposed permitting guidelines – called the Supplemental Generic Environmental Impact Statement -- and to guide responses that favored the movement. Steingraber adopted a similar approach – an online guide called the 30-Days of Fracking Regs – to encourage technically relevant comments first on fracking regulations and later on infrastructure projects. The efforts of both Hang and Steingraber have encouraged a flood comments that stalled the process.

Hang and Steingraber are among activists intent on blocking, rather than regulating the industry. Compared to Pennsylvania, the political ethos and history of New York has favored land preservation more than mineral extraction. Geology is also undoubtedly a factor. Pennsylvania’s extemporaneous approach to establishing rules for the shale gas industry (more than five years into the play) reflects a political tolerance tied to a storied history of extraction, including coal, oil and natural gas, in the state for better and worse. The forthcoming hearings and public comment period on Act 13 will be a grass roots test of how moved the electorate is to change the status quo of carbon dependency. A small response will reflect a willingness to defer to regulators and the state, while the opposite will provide critics with potentially potent raw material for change.


  1. This is interesting. It's basically took a handful of individuals (like Hang & Steingraber) to put a stop to the "catch us if you can" approach to shale oil and gas development. It's not like these folks are just concerned citizens or airy fairy environmentalists. Both seem to have a strong background in environment and health. My birth state, Pennsylvania (Meadowbrook shout out), seemed to have been more worried about Joe Paterno and his Nittany Lions football over the past ten years than say property rights, human health and environmental impacts from go-go fracking. Then again, Pennsylvania is Alabama turned 90 degrees to the right or left. Actually Illinois would probably be more analogous if say Saint Louis was in Illinois.

    1. Michael, I won’t comment on your geographical observations, other than they are interesting. I think you hit on an important point regarding NY style activism. Hang and Steingraber are forceful personalities and skillful organizers who combine a rare but potent mix of wonkishness and charisma. Their cause has also benefited greatly from New York political environment and the initial delay (ironically encouraged by the Farm Bureau and Landowners, not activists). Can’t think of parallel circumstances in Pa. although Josh Fox has had success with directing grass roots pressure on the Delaware River Basin Commission.

    2. That was an old joke James Carville made about Pennsylvania during one of the Clinton election campaigns. It didn't go down well in Pennsylvania or Alabama. I always thought of Pennsylvania as bucolic rolling hills with Philly on the right and Pittsburgh on the left. From reading the news over the past several years, PA seems more like my state of Illinois with its upstate/downstate political dynamic.

      By the way, Illinois' draft fracking regulations public comment period will come to a close on January 3, 2014. I recommend New Yorkers and Pennsylvanians take a look at the proposed regulations and keep an eye out for the final. They were drafted Illinois style, but with input from environmental NGOs sitting somewhere at or near the table.

      Supposedly the Illinois regs will be a "game changer" a "third-way" a "common sense" a "breakthrough" a "civilly discussed" approach to regulation in order to bridge capitalism and environmentalism. I'm not sure if NGO reps live in Carbondale County or Lake County, Illinois. Anyway, the Illinois regs when finalized may become a model for other States.

    3. Michael--I'm sure you're aware of this already, but it's uncanny how every state that develops/is developing shale regs is going to become a model for other states (they're also each going to have the toughest regs in the country). It reminds me of the way the landmen told people all over the place that their land just happened to be in the sweet spot. :-)

  2. I think Tom's lead in says a lot, "...regulators seek public years into the play...". WAY too little, WAY too late, and who thinks PADEP will change ANYTHING of importance concerning regulations that would protect the citizens of the Commonwealth? Would PADEP change regs concerning open air frac waste storage impoundments such as the Worstell? Would PADEP increase the setback of wells from residences and sources of drinking water as Dallas Texas just did (1,500 feet from residences)? Would PADEP attempt to regulate the rate of deployment of rigs, the number of rigs operating at a given time? Would Special Protection Waters, areas and watersheds be off limits to development?

    Pennsylvania is governed by many politicians who are in the pocket of the industry. Over 50 have already left PA government to work for the industry, or law firms directly related to the industry.

    We all keep taking as many lawful measures as we can, but, like Sandra Steingraber, when push comes to shove, if the gas and oil is there, I'm afraid it will take civil disobedience in the streets.

    PADEP, surprise us, establish some meaningfully protective regulations. The play is 7 plus years along, and I don't think you have to look beyond the tip of your nose to know all the public comment. We have been making the pertinent comments for all those years. Did you pay any attention? Will you ever?

  3. I am wondering if/how the PA Supreme Court's ruling on Act 13 will affect the hearings.....will the hearings proceed as planned and if so how will the ruling affect the public's response?

    1. Good question, Mary. I don’t think the decision will affect the schedule of the hearings, but it might affect tone and content. Technically, the state will not need comment on jurisdictional control it no longer has, but the impact of the ruling on process, overall, needs to be sorted out and it may be relevant to hearings. I will put the question to the DEP.

  4. We NEVER anticipated the extent of this invasion of the homeland. Our representatives and regulatory agencies have completely failed us. Leaving aside the wisdom of promoting MORE fossil fuel dependency, the overtaking of local customs and considerations is entirely antithetical to planned grass roots development. We serve as a bad example of citizen involvement for our wiser neighbors. This is a story of the triumph of GREED in the conduct of our daily lives. Make no mistake about this.