Greed and Expediency

By Tanya Wagner
Sierra Club Member, Hampden Township

*Below is testimony presented at the public hearing of the Environmental Quality Board (EQB) in Mechanicsburg on January 16, 2014. The testimony is in response to the EQB's proposed oil and gas regulations. Sierra Club talking points can be found here.*

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Good evening, I’m Tanya Wagner from Hampden Township.

I assumed that most testimony given tonight would be empirical in nature. So, I choose to speak more philosophically, because actions are guided by values, and legislation is crafted not just from knowledge, but influenced by attitude and moral integrity. That said, I believe it’s time we undertake bolder efforts to put tougher, more specific language in these proposed regulations. If we can’t balance public health and land stewardship concerns with economic growth and the search for new energy sources, Pennsylvanians will pay a price that we and our offspring will sorely regret.

I speak with confidence because, as 300,000 West Virginians were learning of a chemical spill that rendered their water virtually untouchable, the U.S. House of Representatives was hard at work gutting the Federal Hazardous-waste Cleanup Act. How ironic! If their bill becomes law, it will seriously erode the federal government’s ability to help PA residents if a similar disaster were to happen here. We could be in dire straits unless we get our own house in order, and fast.

The Elk River spill in WVA, while not due to fracking, is a cautionary tale, because the CEO of the company responsible is considering bankruptcy. Consequently, he won’t be paying for cleanup, and just like WVA, PA has not required mine and related company owners to establish a remediation fund for accidents that may well devastate our water supply. Yes, they pay an impact fee, but that’s simply for mitigating day-to-day wear and tear on a community’s infrastructure.

It’s reported that a legislative plan is evolving to entice drillers to substitute “mine-influenced water” (better known as acid mine drainage) for their fracking process in place of clean water. While that sounds like a tantalizing concept on its face, a tricky use of the term “beneficial” in the plan’s text, and a proposal to exempt companies who would agree to use this stuff from liability clearly doesn’t.

Much is promised by operators and legislators, and agency spokesmen assure us that all is well; however, I suffer cognitive dissonance when reviewing information that contradicts the pro-fracking message, such as countless violations, token penalties, inadequate rules for safe use and disposal of hazardous substances, danger from orphan and abandoned wells, methane migration, and wording in laws that smacks of bias favoring mine operators over public health and environmental safety. Just one issue I shudder to think about is: what happens if we permit long-term burial of waste pits and toxic or radioactive materials like drill cuttings? Why, we could create sites like the infamous Love Canal, which, quoting NY’s health commissioner, “remains as a national symbol of failure to exercise concern for future generations” Is that how we want to be remembered? 

I’m no expert, but distance and location limits listed in these proposed regulations seem uncomfortably close to areas they’re designed to protect, and they’re accompanied by vague enforcement language. Won’t such a laissez-faire approach just invite less safety and more risk?

I’m troubled, too, when many people (including elected officials) willingly accept drillers’ assurances of safety. For me, their credibility sank after hearing that the industry hired the same public relations firm tobacco executives employed back in 1994: yes, the very ones who raised their hands at a congressional hearing, and under oath, stated “I believe that nicotine is not addictive”.

On that note, I’ll close by sharing 2 wise and very relevant proverbs: first, it seems the only thing we’ve learned from history is that we don’t learn from history at all, and second, humans come to their moment of clarity only through pain and humiliation. Sadly, their own, and not someone else’s. My hope is that these tendencies can be reversed in this crucial matter; and that wisdom, foresight, and courage will prevail over greed and expediency. Our land, our citizens…and…even mine operators, will be the better for it. Thank you.

I <❤> Clean Water

We have an opportunity to join an environmental battle that we have a good chance to win. Help us restore protections to ALL the waters of the United States. Many organizations across the United States are working together to restore the Clean Water Act and we should join them.

In anticipation of EPA soon releasing a proposed rule to clarify Clean Water Act protections for small streams and wetlands,  Clean Water Action we will be hosting a grassroots call next 

                                           Wednesday, January 22^nd from 2-3pm ET.   

On this call  we will share the latest information on timing, provide an update on last month’s Science Advisory Board meetings on the Connectivity Report, and discuss campaign activities.  If you plan to participate, please RSVP to jpeters@cleanwater.org.

The Clean Water Act broadly protected the waters of the United States until about ten years ago when two Supreme Court decisions left many small streams, wetlands, and headwaters unprotected. There have been many jurisdictional disputes regarding whether certain waters were connected with other waters. Also, many waters were drained, filled in, disturbed. 

Many of us have been working in recent years to restore protections to all “Waters of the United States” (WOTUS) because we understand that all types of waters are connected. We know that our mighty rivers, large lakes, and oceans will in turn be cleaner and healthier.

Over the next year, we have a narrow but real window to advance a strong “water of the US” rule that will clarify and resolve which waters are connected and thus deserve protection. Our success depends upon establishing a strong scientific basis for broad jurisdiction and a broad and effective grassroots mobilization across the country. We know there will be pushback from the Farm Bureau, builders etc but we think we can prevail.

Barbara Benson, Water Issues co-chair

bbenson626@gmail.com

Take Action Against Dirty Diesel Pollution

Alert: Your voice counts.

You can stop dirty diesel pollution. On Tuesday, January 14, the Pennsylvania House Environmental Resources and Energy Committee will vote on House Bill 1699, which would require pollution controls for dirty diesel engines that generate power for the electricity grid through demand response programs. HB 1699 would allow diesel units to continue participating in demand response programs — but only if they install commonsense pollution controls. The bill would protect public health from dangerous toxins and create greater opportunities for clean demand response. What's good about this bill: By requiring pollution controls, this bill would protect public health and limit dirty diesel pollution on some of the worst air quality days of the year. This bill will protect opportunities for energy efficiency and energy conservation in the demand response market. Who could be helped by this bill: Clean energy and conservation businesses will benefit by closing this loophole that currently benefits dirty diesel engines. Children, the elderly, and those with respiratory problems will breathe easier with less pollution in the air. What could happen without this bill: Dirty diesel engines will continue to spew toxic air pollution and dominate the demand response generation market, making the air dirtier and reducing opportunities for clean demand response.           Take action! Background: Dirty diesel engines release three times more nitrogen oxides and particulate matter than the average coal plant, in addition to releasing toxic pollution like formaldehyde, acetaldehyde, acrolein, and methanol. The number of diesel engines participating in demand response programs is growing, reducing opportunities for clean demand response such as energy conservation and energy efficiency.

Leave Carbon in the Ground or Humans Won't Be Around

By Richard Whiteford
Sierra Club Member & Environmental Communications Consultant

Congressional legislators who deny climate change typically focus on free market economics and fail to acknowledge the destructive impacts and associated costs that we experience now from climate driven extreme weather events.

They grouse about the Obama Administration’s request for a 2014 climate change budget of $11.6 billion and the expansion of government agencies to combat climate change. 

While realizing that the Republican party’s platform rests on smaller government and cutting government expenses to the bone, you can’t help wondering why their budget fetish ignores the fact that, according to  the U.S. Treasury Department, between 2011 and the first quarter of 2013 extreme weather events cost us more than $136 billion and that doesn’t count the endless numbers of flood, sand storm, drought, and wild fire damages that happened since then.

They claim that while the President stated a willingness to work with Congress toward enacting a bipartisan, market-based scheme to reduce GHG emissions, the Administration has also taken steps to move ahead with Executive Branch actions to address climate change concerns without Congressional support. 

They express outrage that President Barack Obama has advanced a series of unilateral regulations without appropriate legislative review – including a proper assessment of the cumulative influence, regional effects, and distributional impact of such actions on states and localities – would do more harm than good. 

The Republican Party, while vehemently denying the existence of global warming, ditched every proposed climate bill leaving the Obama no other choice.

At a time when our economy is struggling to recover, increasing the cost of energy and cutting more American jobs is not the right way to move forward.”

Here again, like so many people, these legislators fail to recognize the real issue because their only measure is money, revenues in particular.

The critical issue is: in the past 150 years humans increased carbon dioxide levels in the atmosphere by 117 parts-per-million by burning fossil fuels. For over 800,000 years before that CO2 levels hovered around 280 parts-per-miliion. 

Now because we pump 90 million tons of CO2 up there every 24 hours, CO2 has risen to an average of 397 parts-per-million and actually spiked into the 400 parts-per-million level twice in early 2013. It won’t be long until that will become the average as it continues upward.

Burning fossil fuels has already raised the global temperature from preindustrial levels by 0.8 degrees Celsius (1.4 degrees Fahrenheit) and we are already experiencing sea level rise, extreme storms, droughts and wildfires around the planet. Even more alarming, 80 percent of the Arctic ice cap melted in the summer of 2012.

Scientist believe that we can’t allow the preindustrial global temperature to rise higher than 2 degrees Celsius or human survival will be very challenging. We are almost half way there now.

The oil, gas and coal industries and their paid henchmen like the Heartland Institute and bought politicians distract the public with red herring issues like claiming that switching to clean energy will hurt the economy, kill jobs, and cause energy shortages while overlooking the job creation that clean energy creates.

What is tragically overlooked by them and the media is that if humans want to survive on this planet we have to stop burning fossil fuels as soon as possible. Scientists say that we can’t put much more than another 565 gigatons of CO2 into the atmosphere without disastrous results. At this time, financial analysts calculate that there is already 2,795 gigatons of CO2 contained in readily available oil, gas and coal reserves. 

That’s five times more CO2 than we can afford to burn and expect to survive yet the plan remains drill baby drill; burn baby burn.

There is enough carbon just in the Canadian Tar Sands oil deposits to send the global temperature above the 2 degree limit. That is the reason environmentalists are protesting the Keystone XL Pipe Line. We just can’t afford to burn that carbon and expect to survive.

Again, the critical issue is carbon output. If we keep pumping CO2 into the atmosphere jobs and the economy will be a moot point. What good will money be if we don’t live to spend it? 

Our first step should be to tax all carbon at its source of extraction and give that money directly to our tax-paying citizens to cover the increase in price that fossil fuels will go through until we are 100% clean energy and stop burning them. This points to another blind spot. Legislators want to cut subsidies to clean energy but they vote in lock-step to support the $90 billion in tax subsidies that the oil companies get from taxpayers each year in the name of “leveling the playing field.”

The bottom line is, leave carbon in the ground or humans won’t be around.

Originally published in the Patriot News Op-Ed on December 16, 2013. 

It's About Time!

By Thomas Y. Au, PA Chapter Conservation Chair

The Pennsylvania Supreme Court Finally Rules that Oil and Gas Act is Unconstitutional. 

Municipal governments have a role to play in regulating oil and gas drilling, according to the Pennsylvania Supreme Court, which declared the state’s pre-emption of that role to be unconstitutional.

In 1971, Pennsylvania voters adopted an amendment to the Pennsylvania Constitution, which simply stated:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

This amendment, Article 1, Section 27 of the Pennsylvania Constitution, became known as the Environmental Rights Amendment.  However, for decades, Pennsylvania's legislature and courts have all but ignored the text of this amendment, giving it lip service when enacting legislation, but scarcely balancing the natural, scenic, historic, and aesthetic values of the environment with the demands of industrial development.  The Environmental Rights Amendment was almost never used to weigh impending industrial development.

Photo courtesy of marcellusprotest.org

In commenting on the decision, the Patriot-News editorial (Dec. 22) made this wry observation: "But the hope here is that it marks a new day in Pennsylvania, delivering an enduring reminder to legislators and the governor: As you're being schmoozed by lobbyists and lavished with campaign contributions from powerful industries that want special treatment, there's a limit on how far you can go to please them, because the Pennsylvania Constitution has an Environmental Rights Amendment."

When the General Assembly enacted Act 13 in 2012, it was in response to the rapid and intensive development of Marcellus Shale gas drilling.  The law was intended to foster, rather than limit, shale gas development by, among other things, limiting the role of municipal governments in reviewing and regulating shale gas operations in their municipalities.  The law specifically stated that the state government intended to pre-empt all local ordinances regulating oil and gas development. (The Commonwealth, by this section, preempts and supersedes the regulation of oil and gas operations as provided in this chapter."  58 Pa.C.S. Section 3302)

When the Commonwealth Court heard the challenge from Robinson Township and other municipalities after the enactment of the Oil and Gas Act in 2012, the court found: "By requiring municipalities to violate their comprehensive plans for growth and development, 58 Pa.C.S. §3304 violates substantive due process because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications — irrational because it requires municipalities to allow all zones, drilling operations and impoundments, gas compressor stations, storage and use of explosives in all zoning districts, and applies industrial criteria to restrictions on height of structures, screening and fencing, lighting and noise."

This set the stage for an appeal by the state, the PUC, and the oil and gas industry to the Pennsylvania Supreme Court.  On Dec. 19, 2013, the court issued its decision.

Pennsylvania’s history, Chief Justice Castille wrote, includes massive deforestation, the loss of wildlife, and industrialization and coal mining. “It is not a historical accident that the Pennsylvania Constitution now places citizens’ environmental rights on par with their political rights,” the plurality said.   Constitutional provisions, he pointed out, are to be interpreted based on “the mischief to be remedied and the object to be attained.” 

Chief Justice Castille applied this analysis to Sections 3303, 3304, and 3215(b)(4): 

Section 3303, which pre-empted local regulation of oil and gas operations, violates Article I, Section 27 “because the General Assembly has no authority to remove a political subdivision’s implicitly necessary authority to carry into effect its constitutional duties.”  The Commonwealth is the trustee under the amendment, which means that local governments are among the trustees with constitutional responsibilities.  

Section 3304, which requires “all local ordinances” to “allow for the reasonable development of oil and gas resources” and imposes uniform rules for oil and gas regulation, violates Article I, Section 27 for two reasons.  “First, a new regulatory regime permitting industrial uses as a matter of right in every type of pre-existing zoning district [including residential] is incapable of conserving or maintaining the constitutionally-protected aspects of the public environment and of a certain quality of life.”   Second, under Act 13 “some properties and communities will carry much heavier environmental and habitability burdens than others.”  This result is inconsistent with the obligation that the trustee acts for the benefit of “all the people.” 

Endangered Species Protection is Threatened by the General Assembly

By Thomas Au, Sierra Club PA Conservation Chair

The gas drilling and mining industries have been pushing new legislation to undermine the independence of the PA Fish and Boat Commission and the PA Game Commission to administer Pennsylvania's endangered species laws. 

The so-called Endangered Species Coordination Act (House Bill 1576 and Senate Bill 1047) would place regulations for rare species by the Fish and Boat Commission and Game Commission under the purview of the state's Independent Regulatory Review Commission - a five member body dominated by the legislature.  While this process appears to be innocuous on the surface, it essentially subjects proposed actions by these independent agencies to second-guessing by political appointees.

The current process allows scientists from the PA Game Commission, PA Fish and Boat Commission and the Department of Conservation and Natural Resources, after public hearing and discussion, to determine when a species in Pennsylvania is rare, threatened or endangered and take steps to protect them. The current process also allows the Pa Fish and Boat Commission to designate wild trout streams. The bills would take this independent authority away from these agencies and their professional staff, and put the ultimate decisions in the hands of political appointees. 

The bills would actually prevent a species from being listed in Pennsylvania, unless it is first listed by the federal government.  This ignores the fact that many species may be threatened in Pennsylvania due to conditions in our state that do not exist in other states.  These include the great egret, the long-eared owl, and numerous species of mussels and fish. And according to testimony from the staff of the Commissions, it would make it more difficult to protect many rare Pennsylvania wildlife and fish species.

The bills would also require the agencies to re-propose all the species currently under their protection by enacting regulations on each one of them.  This would require a huge amount of agency resources to be used to re-justify listed endangered species, without providing funding pay for the agency work.  This mandate that will divert scarce resources from other agency critical work. 

The cumulative effect of the changes proposed in the bill blunt the Commissions' programs for threatened and endangered species of fish and wildlife - allowing drilling, mining, and clear-cutting to evade agency review. 

In 2012, the Governor’s Energy Executive, Patrick Henderson, wrote in a report to the General Assembly that the Pennsylvania Natural Diversity Inventory environmental review tool should continue to be enhanced so as to assist in the up-front avoidance of conflicts with threatened and endangered species, flora, fauna, habitat and other sensitive natural resources and increase certainty in decision making and long-term planning of pipeline operators.  If this is the Governor's position, his office should be leading the opposition to these bills.

Please write your state senator and representative

stating your opposition to these bills. 

With ever-larger tracts of pristine public and private land being subjected to industrial development, including gas drilling, pipeline construction, and mining,  the likelihood of encroachment on  threatened and endangered species increases.  These industries should not attempt to shield themselves from potential conflict by curbing the ability of the fish and game commissions to list and protect these species. Pennsylvanians cherish their wild resources, and we should not be weakening their protection.

Ontario, Canada, Goes Coal Free

Today Ontario, Canada, is showcasing a path for a world working to prevent runaway climate change. Today, Ontario retired their last coal-fired power plant. Part of a bold plan launched by former Ontario Premier Dalton McGuinty in 2003 to cut pollution in the province, this is great news for everyone who loves clean air and is working to provide a safe and liveable planet for future generations. 

What's more, the steps Ontario has taken over the past decade to retire its five coal-fired power plants is a great guide for the U.S. in making a speedy transition to a modern, clean, carbon-free energy system. 

What can we learn from Ontario?

1) Be honest about the costs of coal. In 2003 Ontario looked at the full cost of coal, both the costs of coal-generated electricity, and the health costs the province was paying related directly to the health costs of burning coal. An honest accounting concluded that coal is among the most expensive ways to generate electricity.

2) Be bold. Long before other states and cities were talking about phasing out coal, then Premier McGuinty announced he would lead the effort to replace all the coal plants in a decade. This took a lot of courage, but also a profound belief in our scientists and engineers to imagine and build a coal-free electricity sector.

3) Invest heavily in energy efficiency. The province demonstrated that the cheapest source of power is efficiency, or reduced demand. In fact, according to Scientific American, these savvy actions made Ontario one of the first places in the world where energy demand began to decline, rather than increase.

4) Provide clear and fair rules for clean energy developers. With a clear roadmap and and balanced incentives wind power quintupled over the past 6 years in Ontario. Today wind and energy efficiency will make up much of the replacement for the retiring coal plants. A carbon-free grid is now within reach, as clean energy continues to grow and will back out the remaining natural gas.

This move by Ontario is the latest in a string of great clean energy news across North America. Last week the Tennessee Valley Authority announced the retirement of 3,300 megawatts of coal power in the Southeastern U.S. Earlier in 2013, Los Angeles and Chicago both announced they were going coal-free, with L.A. even announcing a major solar power deal with the Moapa Band of Paiutes in Nevada. The U.S. has been ditching coal (as fast as its investors), because a mix of hard-hitting grassroots advocacy, new EPA protections, and rising coal prices, has brought about the retirement or announced retirement of 155 coal plants.

With the largest grassroot environment movement in the U.S. working together to de-carbonize the electric sector, activists are fighting for clean energy and climate solutions from coast to coast. In the past week activists in Florida and Arizona rallied for solar power; North Dakota approved a new wind farm; Sudbury, Massachusetts just flipped the switch on a solar array that will save the city $100,000 annually.

This is also the latest in a string of great clean energy news across the globe. Sparked by the President's climate action plan which called for an end to public financing of coal overseas, the United Kingdom and multilateral banks like the World Bank and the European Investment Bank have also stopped throwing taxpayer dollars at dirty coal projects. These governments and institutions will instead be investing in clean, renewable energy.

While coal has powered the U.S. economy for much of the 19th and 20th centuries, we now know it is the leading source of climate disruption, it pollutes our air and makes our kids sick, and it has no place in a modern, high-tech economy. We live in the most innovative country on earth -- the first country to put a man on the moon, the nation that brought the Internet to the world. Our neighbors to the north are showcasing leadership. Let's build on their leadership, our incredible progress here in the U.S., and get to 100 percent clean energy in less than two decades. I know we can.

-- Bruce Nilles, Senior Director of the Beyond Coal Campaign