Fracking and Fundamental Environmental Rights Before the PA Supreme Court

On March 9, Pennsylvania's highest court will hear arguments about fracking and fundamental environmental rights—rights affirmed in Article I, Section 27 of Pennsylvania’s constitution, the “Environmental Rights Amendment.”

The case on appeal was originally filed by the Pennsylvania Environmental Defense Foundation in March 2012. It focuses on a series of short sighted government decisions to address state budget gaps by converting public natural resources into quick cash. More specifically, through an unprecedented expansion of the state's oil and gas leasing program, Pennsylvanians lost nearly a tenth of their state forests to private fracking interests, which gained rights to both public minerals and public lands—for decades.

PEDF is now asking the Pennsylvania Supreme Court to judge whether the Governor and DCNR, as trustees for public natural resources under the Environmental Rights Amendment, complied with the same when they leased so much public minerals and lands without first assessing how much the public would lose, and what it would take to make the public whole again.

The government has already conceded that it has fiduciary duties under the state constitution to “conserve and maintain” public natural resources. [1] Or, as the plurality of Pennsylvania Supreme Court justices put it in Robinson, “to prevent and remedy the degradation, diminution, or depletion of our public natural resources.”[2]

Moreover, the record shows DCNR—the agency charged with leasing decisions—wanted to stop leasing to the fracking industry because it did not have a good handle on the impacts, but then, under political pressure, leased more and more public minerals and forestlands anyway.

As a result, "pipeline infrastructure build-out" alone "will impact communities and the environment in every county in Pennsylvania," according to the government’s own projections. [3]

On Wednesday, John Childe will argue for PEDF that—before any decision to lease the “common property of all the people”[4]—the government should have completed a comprehensive study of fracking's impacts with special attention to present and future generations' fundamental environmental rights affirmed in the Environmental Rights Amendment. Further, PEDF will argue leasing should have proceeded only to the extent that the government could show, on the record, compliance with the constitutional “conserve and maintain” standard. This is a commonsense look before you leap argument, and it is firmly rooted in the text of the Environmental Rights Amendment.

Similarly, Pennsylvanians have asked the government many times to take its constitutional duties seriously. To put people before profits, and hard won environmental protections before stopgap budget measures.

In fact, like PEDF here, Pennsylvanians have specifically asked the Governor and his administration to take the constitutionally required hard look at the foreseeable impacts of the Marcellus Shale boom, including not only the impacts of leased public minerals and lands but all the associated pipelines, compressor stations, and other industrial fracking infrastructure that will cut through wild places and endanger homes and businesses.[5]

Yellow dots indicate wells in violation of regulations.

Yet the government keeps dragging its heels. That’s why Sierra Club, Delaware Riverkeeper Network, PennFuture, and the Pennsylvania Land Trust Association filed a friend of the court brief in this case to urge the Pennsylvania Supreme Court to give meaning to the text of the Environmental Rights Amendment. The brief is available here.

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[1] Pa. Const. art. I, § 27.


[2] Robinson Township. v. Commonwealth, 83 A.3d 901, 957 (Pa. 2013) (plurality).


[3] Governor’s Pipeline Infrastructure Task Force Report, at 5 (Feb. 2016) [emphasis added] available at http://goo.gl/YvwUN8


[4] Pa. Const. art. I, § 27.


[5] See, for example, joint comments by 12 public interest organizations to Pennsylvania Department of Environmental Protection Secretary Quigley (Dec. 29, 2015)available at http://goo.gl/XGd3Cs; see also State Impact, “Citizen’s Marcellus Shale Commission Wants to Slow Down Drilling” (Oct. 24, 2011) available at https://goo.gl/2WJEvc; Citizens Marcellus Shale Commission, "Marcellus Shale: A Citizens View" (Oct. 2011) (urger government to take hard look at fracking's impacts and protect public natural resources) available at https://goo.gl/g0M8c2.

How the Clean Power Plan Could Keep Coal AND Gas in the Ground

By Tom Schuster, Sr. Campaign Representative, Beyond Coal

Last year’s Paris agreement was a significant milestone in finally building the global political will to tackle climate change, and not a moment too soon.  The end goal is pretty simple, even if the pathway is difficult: in order to have a good chance of keeping global temperature rise below 2 degrees, a recent study in the journal Nature finds that a third of oil reserves, half of gas reserves, and more than 80 percent of coal reserves worldwide need to be left in the ground.

Here in the US, we are finally beginning to take concrete steps in that direction.  The Clean Power Plan (CPP) was finalized by the EPA last August, and sets the first ever limits on carbon dioxide pollution from power plants that burn fossil fuels.  While the CPP applies to both coal and gas burning plants, some environmental advocates have expressed concerns that the rule might cause us to invest more heavily in natural gas than in truly clean energy.  This is a reasonable concern if one looks strictly at the design of the rule, but taken in the context of broader trends in energy development and technology, it becomes clear that the Clean Power Plan can drive the replacement of coal with truly clean energy, IF we implement it properly at the state level.

A recent analysis by the Rhodium Group looked at the “least cost compliance pathway” for the Clean Power Plan under two scenarios.  The first is the CPP only, and as the graphic below shows, coal generation declines significantly (by more than 1/3, compared to 2012 generation).  There is a modest increase for wind and solar energy, but the bulk of the replacement generation is projected to come from natural gas.

The second scenario is the CPP plus Tax Extenders.  What are the Tax Extenders?  At the end of 2015, as part of the omnibus spending bill, Congress authorized an extension of the expiring Production Tax Credit for wind energy, and the Investment Tax Credit for solar energy through the end of the decade, which will increase investment in these technologies by tens of billions of dollars.  Although wind and solar are already economically competitive on average in the US (see graphic below), these tax credits make them competitive in just about every region, and will allow them to accelerate their rapid expansion.  This will prevent the need for new gas generation to replace the declining coal generation that results as the CPP is implemented.  In this scenario, nearly all replacement generation by 2030 is pollution-free wind and solar energy.

It is important to note that in both scenarios, coal generation is decreasing more than the combined increase in other types of generation.   That is due to increased energy efficiency, which is by far the cheapest and greenest way to cut our carbon pollution.  It is also the most progressive, especially if efficiency programs are targeted at homes and businesses in low-income neighborhoods, as envisioned by the CPP’s Clean Energy Incentive Program.

As hopeful as this is, let’s be honest.  First, cutting carbon pollution in the electric sector by 32% by 2030, as the CPP aims to do, is not sufficient by itself to end the threat of climate change.  The Sierra Club’s goal is to get to zero carbon pollution in the electric sector by 2030 and a virtual elimination of fossil fuel use by 2050, not because it is easy, but because that is what the science of climate change demands.  So this is just one step.  Through our continued climate and clean energy advocacy we hope to far surpass the CPP requirements.  But the importance of having a law in place that, for the first time, puts actual limits on carbon pollution from the electric sector cannot be understated and we cannot afford to let opponents undo or weaken this important accomplishment.

Second, I’ve done enough modeling in my life (the computer kind, trust me) to know that this analysis only shows what COULD be, not necessarily what WILL be.  All models are based on assumptions that may or may not hold true, and the Clean Power Plan is complex with some potential loopholes that could weaken it unless we prevent that from happening.  In Pennsylvania, the most important question is whether we will choose to limit carbon pollution from existing coal and gas plants only, or whether pollution from new gas plants will also be subject to the carbon cap.

Under the Clean Power Plan, the EPA does not have the authority to cap system-wide emissions from new power plants.  It can only set limits for individual power plants and has done so, but the limits for new gas plants are already being reached by virtually every new combined cycle gas plant.  However, the STATES do have the ability to regulate new gas plants just as they regulate existing plants, and that is what we are calling on Governor Wolf to do.

What are the stakes?  

If states take the “existing only” approach to compliance, they would indeed be creating an incentive to shift generation away from both existing coal and gas plants to new gas plants, which would not be subject to a system-wide cap.  This is called “emissions leakage,” and EPA recognizes that it is a problem, and requires states to include policies to prevent leakage if they opt for existing-only compliance.  However, a recent analysis by MJ Bradley & Associates found that EPA’s proposed approach to mitigate leakage is ineffective, and that electric sector emissions could actually increase by 2030 if states choose to only regulate existing sources.

But it doesn’t have to be that way.

If we include new gas plants under the carbon cap, we treat every ton of carbon pollution the same no matter when its smokestack was built.  That makes it a REAL cap on carbon pollution.  Not only is this the only fair way to do it from an economic perspective, it is the best tool we have for preventing most of the 27 (!) proposed new natural gas power plants from coming online in Pennsylvania.  Better still, with a real carbon cap, it won’t matter whether electricity demand increases when electric cars become mainstream.  Any additional generation requirement would have to be met with carbon-free electricity, so it offers us the chance to clean up both our electric AND transportation systems.

Tell Gov. Wolf to include new gas plants under the carbon pollution cap.  And tell your legislators to work constructively with the Administration and ensure a strong, just, and timely Pennsylvania Clean Power Plan!

Local teams are forming throughout the state, and now is the time to get involved!  If you are in the Pittsburgh region, contact Randy Francisco (randy.francisco@sierraclub.org, 412-802-6161).   If you are in the Philadelphia region, contact Gary Lytle (gary.lytle@sierraclub.org, 215-776-5358).  If you live elsewhere, contact Carli Feldman (carli.timpson@sierraclub.org, 717-232-0101).  You can also visit www.cleanpowerpa.org for more information.

The Pipeline Infrastructure Task Force – For Whose Benefit?

Photo of “Williams-Transco Pipeline Crossing Struble Trail, Downingtown, PA” by Jim Wylie

By Bernie Greenberg and Jim Wylie (Southeastern PA Group)

Last year, Governor Tom Wolf established the Pennsylvania Pipeline Infrastructure Task Force (PITF) chaired by DEP Secretary John Quigley, with the goal of achieving a world-class pipeline infrastructure for this state. The responsibilities of the PITF included the siting and routing of pipelines, engaging in public participation and ensuring pipeline safety. The draft recommendations were released in November and the public comment period closed on December 31st. Over those 46 days over 1,500 comments were collected by the DEP website from environmental organizations, gas and pipeline industry representatives, property owners and other concerned citizens.

Just 20 calendar days later (on Jan 20, 2016), the task force will approve the final version of the recommendations. It seems like the real intent of this task force is to streamline the process for pipeline developers.

The Task Force draft recommendations do not adequately address in advance the environmental effects of pipeline proliferation as stated in Section 27 of the Pennsylvania Constitution which provides that people have a right to clean air, water, and the preservation of the natural, scenic, historic and aesthetic values of the environment. Pennsylvania courts have mandated that Section 27 constrains every entity with the state government and requires that a thorough and comprehensive review be conducted BEFORE activities such as the expansion of gas pipelines which may have a deleterious impact on our land, water, air and communities.

The Task Force proposes a fast-track massive expansion of pipelines across our state without a proper environmental review. This expansion will disturb many of our precious streams, some permanently, clear thousands of acres of woodland, encroach upon farm fields, affect air quality and divide residential communities. The PITF has charged the DEP with monitoring water quality throughout the state as well as evaluating methane emissions from the many compressor stations to be built. This agency is poorly equipped to handle this expansion of activity – a projected quadrupling of pipeline miles by 2030. The same is true for the public utility commission (PUC) which is charged with monitoring pipeline failures. Furthermore there may not be adequate funds or volunteers to provide for emergency responses to the inevitable catastrophe.

Finally, do we even need or want more pipelines when we should be drafting a strategy for transitioning our energy to renewable sources, not expanding our fossil fuel infrastructure? The renewable energy industry should have a seat at the table when it comes to determining the future of our state. I recommend the creation of a task force dedicated to fully transitioning Pennsylvania ­to ­renewable energy instead of locking in these dirty fuels for the next several decades.

As it stands, It seems that the real beneficiary of the Pipeline Infrastructure Task Force is the pipeline industry. Period.

To learn more about the Pipeline Infrastructure Taskforce and to read letters submitted to the Taskforce by Sierra Club members in Southeastern Pennsylvania, click here.

Read the Pennsylvania Sierra Club's Comments to the Taskforce here.

Don't Trade Away Climate Progress

The Sierra Cub opposes the Trans-Pacific Partnership agreement.

Since it’s founding in 1892 the Sierra Club has been dedicated to helping people appreciate, experience, and protect the gifts of Nature in this complex and beautiful World. We have a long history of accepting the responsibility of looking beyond human needs and wants of the moment to identify mistakes made in the past and advocate for policies that, as stated in the Constitution of Pennsylvania, are dedicated “to the preservation of the natural, scenic, historic, and aesthetic values of the environment.”

We support American policy meant to protect the health of our families and the safety of our communities—We oppose policies like the Trans-Pacific Partnership that promote the interests of those who use common natural resources for private gain, think of depletion and destruction as collateral damage, and do not serve the interests of the public and the environment.

Recently TransCanada challenged the decision not to permit the Keystone XL pipeline. Provisions of NAFTA enable foreign corporations to undermine this protective action that the United States had every right to take. These same destructive provisions, that allow corporations to sue in private trade tribunals over laws they claim reduce their profits, these court cases that would attack our safeguards in secret and independent of our democratic processes, are also built into the dangerous and far-reaching Trans-Pacific Partnership - only worse - adding just one more reason that this effort must be stopped in its tracks.

Our nation should not sign on to this destructive agreement.

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Activists Challenge President’s TPP Pitch in State of the Union

PA AFL-CIO Secretary-Treasurer Speaks at Rally  

ALLENTOWN, PA – Today the Pennsylvania Fair Trade Coalition held a rally at the Allentown office of Congressman Charlie Dent to challenge President Obama’s call for Congress to approve the Trans-Pacific Partnership (TPP) in yesterday’s State of the Union Address.  The event also featured the release of the national letter of opposition to the TPP signed by over 1500 national, state and local organizations. The letter was circulated by the Citizens Trade Campaign, of which the PA Fair Trade Coalition is our state affiliate.  Today the letter was delivered to congressional offices throughout Pennsylvania by PA Fair Trade Coalition activists.  In Allentown the crowd of fair trade supporters demanded that Congressman Dent vote against the Trans Pacific Partnership (TPP).

Phila Back, PA Fair Trade Coalition volunteer said, “Knowing how unpopular the TPP is, the President spoke about it for a scant 28 seconds last night.”

TPP, a NAFTA-style free trade agreement with eleven Pacific rim countries, was negotiated over five years in unprecedented secrecy.  The released text confirms that it is a threat to American jobs and wages as well as labor, environmental, food safety and financial safeguards while it reduces access to affordable medicine and internet freedom.

PA AFL-CIO Secretary-Treasurer Frank Snyder said, "The TPP agreement is on track, the wrong track, to become the most harmful trade pact ever. Enough is enough. If we are serious about rebuilding the middle class and creating the millions of good paying jobs we desperately need, we must fundamentally rewrite our trade policies. NO to fast track, and NO to the TPP."

The national letter was signed by several local organizations including the Lehigh Valley Group of the Sierra Club.  Their spokesman Tom Church said, “ TransCanada’s recent challenge to the decision not to permit the Keystone XK pipeline – an action that could cost US taxpayers $15 billion – exploits provisions of NAFTA that enables foreign corporations to undermine American policy meant to protect the health of our families and the safety of our communities.  These same destructive provisions that wrongly empower corporations to attack our safeguards are also built into the dangerous and far-reaching Trans-Pacific Partnership – only worse – adding just one more reason that this effort must be stopped in its tracks.”

“Lehigh Valley Gas Truth is concerned that the TPP provides a fast track to future LNG exports, because the US would be required to sell its gas to other signatory countries regardless of any public health and safety or environmental considerations, and that means a lot more illness, eco-destruction, and violation of the rights of PA communities,” said Julie Edgar.

George Piasecki, United Steelworkers, Rapid Response PA Director, said, “TPP has been negotiated in secret for over six years and now they want  to sell it to the American public in just a few months with just an up or down vote in Congress. For too long we have let multi-national corporations dictate our trade rules at the expense of working families, resulting in a growing trade deficit, stagnating wages and job loss. These agreements prioritize corporate profits over workers paychecks and workers’ rights.”

“Last night the President repeated the misleading claims he has made about the TPP,” said Back.  “His claim about 18,000 tax cuts refers to tariffs on a miniscule quantity of goods.  Further, TPP Is not about the U.S. writing the rules versus China doing so - TPP’s rules are those demanded by its 500 official corporate trade advisers.”

Nancy Tate of LEPOCO stated, “LEPOCO has worked against unfair trade agreements since NAFTA, supporting workers in Latin America, the U.S., and now Asia, all of whom are threatened by the TPP.”   

The President has previously announced his intention to sign the TPP in early February, seeking a Fast-Tracked vote in Congress in the spring.  

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Stop secret provision in the state budget to exempt oil and gas drillers from compliance with health and safety regulations

legislators in the Pennsylvania General Assembly are trying to use the budget process to hold up oil and gas regulations that have been in the works for years, and to delay the state’s action on the Clean Power Plan despite overwhelming public support. They think that you aren’t watching and they are trying to sneak these provisions in under your nose. Don’t let them get away with it - make your call NOW!

The secret provisions that were added to a piece of legislation that is required to implement the state budget - HB 1327 - would  exempt “conventional” oil and gas drillers from compliance with updated health and safety regulations and prevent the Department of Environmental Protection (DEP) from submitting the Commonwealth’s plan to reduce carbon emissions from power plants to the federal government, delaying it for years.

For both the oil and gas regulations and the Clean Power Plan, DEP has conducted a fully transparent and public process, inviting and incorporating comments from people just like you. Throughout those processes DEP heard that the public wants conventional oil and gas operators to comply with new regulations that will protect the health and safety of the public, and wants a Clean Power Plan that will reduce emissions through energy efficiency and renewable energy projects. The legislature on the other hand, has acted contrary to the public interest with no transparency to undermine these efforts.

The attempt to stop the plan by secretly using budget-related legislation is politics at its worst. It ignores the wishes of the public, and it may be illegal and unconstitutional. 

Tell your Senator to VOTE NO on HB 1327 the Fiscal Code bill that includes secret provisions that would delay the Pennsylvania Clean Power Plan and exempt the conventional oil and gas sector from much-needed regulations and demand that legislative leaders remove this from the budget process moving forward.

Notes From The Field #2: Orphaned and Abandoned Gas Wells

My name is David Platt and I am a father, husband and a member of the Sierra Club. A few weeks ago, I attended an event hosted by the Pennsylvania Chapter of the Sierra Club and Marcellus Matters, an NSF-funded group out of Penn State that focuses on science education. We spent the afternoon stumbling around public game lands but we weren’t hunting for deer. What were we in search of? We were looking for Pennsylvania’s missing orphaned and abandoned gas wells.

According to an estimate from the Independent Petroleum Association of America, there are 200,000 oil and gas wells in Pennsylvania that undocumented. Out of these, the Pennsylvania Department of Environmental Protection (DEP) has located about 12,000 wells. There are potentially thousands of undocumented wells leaking harmful chemicals into the air and into Pennsylvania streams and groundwater. We urgently need people to help find and document these wells.

The industry has been drilling oil and gas wells in Pennsylvania since 1859, when Colonel Edwin Drake struck oil in Titusville. For the first century of drilling, there was practically no regulation or oversight of these operations. There is no comprehensive map or database of these wells. When a well failed to bring enough petroleum to the surface to make it profitable, it was unceremoniously abandoned. Sometimes these wells were plugged to keep gas and oil from leaking out. But many of these “plugs” have failed over the decades. Now, the Sierra Club is partnering with Penn State’s Marcellus Matters to help locate and document these missing wells.

Last month, as part of the Forest Watch Campaign, a group of Sierra Club volunteers gathered in Williamsport where Nooreen Meghani and Terry Noll of Penn State’s Marcellus Matters program showed us how locate and document these missing gas wells. Once the wells are documented, this information is then sent off to the DEP. We started by reviewing old USGS maps of Pennsylvania. These maps, initially drawn up in the 1940s and revised in the 1970s, show tiny circles where oil and gas wells are located and thin lines to show pipelines. But, as we discovered, these maps are only a starting point because most wells never made it onto these maps. Other sources of information used to locate these wells include county records and satellite data. We then headed to the Sproul State Forest near Lock Haven to look at three previously unknown wells.

The first well was found by a small pond near Camp Run at these coordinates. We inspected the rusty monument to see if there was any concrete support around the steel pipes. This monument was found less than 20 yards away from Camp Run. The second well was clearly visible from the road and located near Rock Run. There was a large, wooden oil or gas derrick on the ground next to it. The monument had some kind of gas leaking from the top and it smelled terrible!

As bad as these wells were, however, the third well was by far the scariest! It had water pouring from its monument like a bathtub spigot. This well created its own stream that flowed directly into Cooks Run. (You can see it on a map here.) Not only was the smell absolutely noxious, the water pouring out created a petroleum sheen. How long has pollution from this well been flowing into Cooks Run? No one knows —until Nooreen reported it to DEP, nobody knew it was here.

If you enjoy our state forests and game lands, then please contact us or the folks at Marcellus Matters to participate in future outings in your area. I understand not everyone can do this but you can at least take the opportunity to tell the the state of Pennsylvania to clean up and protect our public lands. A few days after the outing, I gave public comment at the DCNR Bureau of Forestry’s hearing on the proposed State Forest Resource Management Plan. This plan guides the Bureau in managing our state forests and is an important opportunity to speak up in defense of our public lands. At the hearing, I talked about the orphaned and abandoned gas wells I saw on our outing and spoke out against future gas development on public lands. The Bureau will be accepting written comments through January 30th, 2016 so please send an email, fill out a survey, or mail your comments to the Bureau of Forestry.

To learn more about Marcellus Matters, please go to their website and check out their map of orphaned and abandoned oil and gas wells in Pennsylvania.

The goal of the Forest Watch Campaign is to empower Sierra Club members to become the eyes and ears of the forest. We are organizing a series of conservation outings throughout the state designed to take members to areas currently impacted or under threat by coal, gas, and oil and connect them to advocacy opportunities.

Nuclear?

By Savanna Lenker, Sierra Club PA Chapter intern

At the Clean Power Listening Session, an idea was brought to the table. Someone offered that Pennsylvania makes up its aforementioned 4% “other” deficit (outlined in the Clean Power Plan article) by means of nuclear energy.

The Sierra Club opposes nuclear. Tragic events at Three Mile Island, just down the Susquehanna from where I sit, and in Fukushima, Japan have proved our fears have merit. The primary issues with this source remain uncorrected.

Three Mile Island. Photo courtesy of Savanna Lenker

The stance will remain the same unless sufficient federal and global policies are developed to restrain energy over-use and nonessential economic growth. Changes need to be made to solve the problems with reactor operation, disposal of spent fuels, and the diversion of nuclear materials that can be use in weapons manufacture. Also, there would need to be an establishment of regulatory machinery to make sure the above conditions will be upheld.

The Sierra Club also is advocating for these changes:

1. Federal legislation to require Nuclear Regulatory Commission (NRC) licensing of both military and nonmilitary radioactive waste management facilities, including research and development facilities;

2. Federal legislation to require Nuclear Regulatory Commission regulation and control of all shipments of radioactive waste, whether of military or nonmilitary origin, and all commercial radioactive materials.

The Sierra Club also supports state and local efforts to provide greater protection in the transportation of radioactive waste and commercial radioactive materials.

3. Presidential appointment of a special citizens' advisory group to advise the president, Congress, and the NRC on the implementation of reforms recommended by the Kemeny Commission and such additional reforms as may be recommended by other studies now underway of the events leading to the Three Mile Island accident;

4. The making of appointments to this advisory group, to the Nuclear Regulatory Commission, and to staff positions in the NRC from a pool of individuals not committed by past experience to the nuclear industry. Such appointment should have a demonstrated commitment to public health and safety.

The Sierra Club is working toward a nuclear free future. 

“… nuclear proliferation and the long-term storage of nuclear waste (which remains lethal for more than 100,000 years) make nuclear power a uniquely dangerous energy technology for humanity.” 

Nuclear energy is not a probable solution to Climate Change (which the Clean Power Plan aims to combat) and every step closer to nuclear is one step farther from truly safe, inexpensive, and renewable energy sources.