PEC presented comments at the Department of Environmental Protection’s January 22nd public hearing on its Chapter 78 rulemaking proposal. You can read our prepared remarks here:
Last month the Pennsylvania Supreme Court issued a landmark opinion in the case of Robinson Township, et al v. Commonwealth of Pennsylvania, et al. Central to the Court’s ruling in striking down multiple provisions of Act 13 of 2012 was invigorating the Environmental Rights Amendment. As the court noted in its decision, the constitutional ruling is unprecedented in Pennsylvania.
The court’s ruling has been enthusiastically embraced by citizens, local governments, and environmental organizations throughout Pennsylvania. We too are encouraged by the court’s move to galvanize protection of public resources, even beyond the Environmental Rights Amendment’s applicability to Act 13.
However, all pioneering standards demand thoughtful analysis and careful consideration. The case has now been remanded to the Commonwealth Court for further review, and we do not yet know what this new standard will ultimately mean for Pennsylvania, its environment, and its citizens.
PEC wholeheartedly supports the state Supreme Court’s conclusion with respect to invalidating Act 13’s unilateral preemption of local land use controls. In fact, our 2010 Policy Report concerning the need to improve management of shale gas development in Pennsylvania, stated:
Every effort should be made to assess potential cumulative impacts from proposed well development; not only from individual sites but also from a broader perspective. Communities in proximity to well and infrastructure development should be afforded input into the review process to ensure consistency between agency action and local protection efforts. This process should be well understood by all parties, and be fair and timely.
PEC opposed the preemption provisions in the legislative vehicle (House Bill 1950) that ultimately became Act 13, and we applauded the Commonwealth Court’s ruling in 2012 to invalidate them.
We also agree, as we did with the Commonwealth Court ruling, with the Supreme Court’s invalidation of Act 13’s waiver language with respect to setback provisions. Act 13 fell short of the standards advanced by PEC and other conservation partners before the General Assembly and the Governor’s Marcellus Shale Advisory Commission, which would have granted the Department of Environmental Protection (DEP) the authority to require protective measures in addition to minimum setback standards when warranted. Setbacks are critical to ensuring that an appropriate boundary is established between natural gas activities and resources such as streams and water supplies. We acknowledge that there may be instances where waivers to setbacks are justified and provide an environmental net benefit, but the law should be clear that DEP has authority to make such determinations based on unprejudiced criteria.
PEC also applauds the Supreme Court’s decision to vitalize the Environmental Rights Amendment of Pennsylvania’s Constitution – more than forty years after its adoption by the citizens of Pennsylvania. This is a new day for resource protection in Pennsylvania, but with it comes the reality that every environmental and land use law or regulation passed by state and local government is now subject to heightened inquiry and potential challenge. In principle, this is a win for the environment and for all Pennsylvanians. But in practice, it will take some time to reflect and examine the full effect of the Supreme Court’s decision on future land use practices.
The Pennsylvania Environmental Council today issued the following response to comments made by Katherine Klaber from the Marcellus Shale Coalition with respect to regulatory oversight of the industry.
Harrisburg – The Pennsylvania Environmental Council takes issue with comments attributed to Katherine Klaber, president of the Marcellus Shale Coalition. In those comments, Ms. Klaber is quoted as saying that “The pendulum has swung to regulation for the sake of regulation.”
The idea that regulation of the shale gas industry is some sort of exercise is ill-advised and baseless. PEC and many other organizations have spent years working to ensure that responsible and effective legislative and regulatory measures are enacted that will protect Pennsylvanians and the environment.
The development of shale gas in Pennsylvania is complicated and not only presents opportunities for economic benefits as well as some environmental benefits in fuel switching, it also directly impacts Pennsylvania’s lands, water, air and communities.
PEC has worked with a broad array of stakeholders – including industry – over the last four years to understand and work to address the impacts of unconventional shale development. While the proposed regulations are not perfect, in fact we believe they can be further improved, they greatly strengthen Pennsylvania’s ability to manage the development of the unconventional shale gas industry. Indeed, many of the proposed regulations have been endorsed by members of the MSC through the recommendations of the Governor’s Marcellus Shale Advisory Commission, whose report provided part of the framework for Act 13.
Act 13 was the result of more than two years of deliberation. Enactment of regulations to realize the new protections afforded by Act 13 won’t take place until two years or more of in depth collaboration and discussions after passage of the law. Industry has been heavily involved in every step of that dialog. To characterize this as an onslaught of regulation is severely misguided and not at all accurate.
The idea of “regulation for the sake of regulation” needs to be dismissed out of hand and replaced with the understanding that the DEP and all stakeholders are working hard to develop regulations that balance the complicated and often competing demands of environmental protection and economic development.
The Pennsylvania Environmental Council presented the following testimony to the Pennsylvania House Democratic Policy Committee on shale gas development in the Commonwealth.
PEC recently testified before the Pennsylvania House Democratic Policy Committee on water resource issues relating to shale gas development. You can read our testimony here:
PEC House Democratic Policy Committee Comments. May 2013
Yesterday the Commonwealth Court of Pennsylvania issued a significant decision that reaffirmed the constitutional rights and responsibilities of local governments to enact rational and necessary controls on natural gas activities. The decision also invalidated provisions of Act 13 that inappropriately expanded waiver allowances to permit siting standards for unconventional gas wells.
The Pennsylvania Environmental Council fully supports and commends the Commonwealth Court’s decision. Responsible development of natural gas in Pennsylvania requires thorough consideration of our unique community and natural resources, with appropriate site-specific and regional protections in place as a result of that analysis.
Responsible development of natural gas is important to the people and economy of Pennsylvania, but of equal importance are appropriate community, health, and environmental protections. The Court’s decision ensures that Pennsylvania’s Oil & Gas Act better meets those goals.
The chemical disclosure provisions of Pennsylvania’s new law relating to shale gas drilling are not perfect, but they are far ahead of what was required before. Since the passage of Act 13, there has been a lot of discussion on the disclosure for chemicals used in the hydraulic fracturing process. Some of this discussion has mischaracterized the new law as we understand it.
During deliberations of the Governor’s Marcellus Shale Advisory Commission last year the Pennsylvania Environmental Council (PEC), recognizing there were no health representatives on the Commission, proactively reached out to the health community (Drexel School of Public Health and University of Pittsburgh School of Public Health) to solicit specific recommendations for consideration in the Commission’s final report. PEC submitted those recommendations and all were included in the final report. Since that time PEC has consistently advocated for prompt action on those recommendations, which do not require new legislation for implementation. To date these recommendations await action.
PEC’s primary focus on the legislation (House Bill 1950 and Senate Bill 1100) that ultimately led to Act 13 was improvements to the environmental protection provisions in the Oil & Gas Act, consistent with our landmark July 2010 Policy Report, our point-by-point May 2011 Legislative Proposal for amending the existing law, and our November 2011 response document to House Bill 1950 and Senate Bill 1100. The latter two proposals were developed in partnership with the Chesapeake Bay Foundation.
As the public legislative debate came to a close at the end of 2011, and worked shifted to resolving differences between the House and Senate bills, PEC saw an opportunity to improve the chemical disclosure provisions in the legislation. It was apparent that, without a strong push, the final bill would likely have done nothing more than codify the existing agency rules for disclosure. These rules were anemic to say the least. They only required disclosure of a partial subset of the chemicals used in hydraulic fracturing treatment. And there was no meaningful public reporting of even that partial list.
Working with legislative leadership and the Governor’s office, PEC was able to help secure language that will now require disclosure of all chemicals, along with the concentrations at which the chemicals are used on a well-by-well basis. Further, in addition to reporting these chemicals to the Department of Environmental Protection (DEP), operators of unconventional wells will be required to post their chemical disclosures on FracFocus.org, a website that is rapidly becoming the main disclosure platform used by states and operators around the country.
Yes, just as has been the case in every single state that has adopted chemical disclosure requirements, operators will be allowed to assert trade secret claims to keep the identities of certain chemicals secret. Here, PEC fought to make sure trade secret claims would be subject to Pennsylvania’s Right-to-Know law. Because we were successful, any citizen will have a right to challenge trade secret assertions – giving Pennsylvania one of the better systems of any state in the nation for policing trade secret claims.
Now, however, concerns have been raised about the chemical disclosure language some are calling a “gag order” on medical professionals. Our understanding of the language is this:
The language provides a mechanism to ensure that medical professionals can quickly get direct access to chemical information for which trade secret protections have been claimed in cases where it’s needed for diagnosis or treatment of a patient. As part of the process, companies can require a confidentiality agreement when circumstances permit, but the law ensures that medical professionals can get the information first.
PEC did not write this language. This language replicates the same process that is in place for the same purpose in other states and that has existed for decades in the federal Occupational Health and Safety Act (OSHA) and the federal Emergency Planning and Community Right-to-Know Act (EPCRA).
Our understanding is that without such language, there’s nothing to guarantee that a doctor will be able to compel companies to turn over trade secret information quickly or even at all. Prior to Act 13, health professionals would have had to submit a request to DEP for trade secret information, or pursue a Right to Know claim. And even after passage of Act 13, they still have that option available to them without any new limitations.
If the professional health community believes the framework unduly restricts the ability of medical professionals to get access to chemical information and use that information to treat patients or address public health impacts, then Pennsylvania needs an open and immediate discussion on how the disclosure provisions of Act 13 need to be changed.
PEC fully supports this discussion. We maintain our long standing principle that public health is a fundamental element for proper management of shale gas development in Pennsylvania.
The continuing work of adapting Pennsylvania laws and regulations took a significant step forward in February 2012 with the signing of Act 13. But, for as difficult as it was to reach this milestone and though the legislation falls short of our expectations in certain aspects, it is only a step on the path to comprehensive energy development and regulation.
Unconventional shale gas drilling in Pennsylvania is still at the start of what appears to be a century of development and production. And we are also at the beginning of understanding and adapting to a new era of drilling and production technologies that have redefined gas production in Pennsylvania and continue to evolve as new processes emerge and are utilized.
To manage with the environmental challenges posed by this growing industry, the state has updated the regulations governing cementing and casing, production reporting, and total dissolved solids in wastewater. It has called for voluntary changes in wastewater handling, increased permitting fees, changed the process for erosion and sedimentation permits, and enacted Act 13. The Pennsylvania Environmental Council (PEC) will continue to seek more stringent regulation and enforcement, and continuously work to make Pennsylvania the model for deep shale drilling and development nationwide.
While we look forward to revisiting these issues, PEC is also focused on those steps that have been left undone. One of our highest priorities is to ensure that the environmental protection standards set forth in Act 13 are expeditiously enacted into regulation by DEP. In fact, we believe that there are a number of standards in the Act that DEP and the industry can implement immediately through a repeat of the DEP Secretary’s call for voluntary action on the part of the shale gas industry.
Further, we encourage DEP and the Governor’s office to promptly implement the recommendations from the Governor’s Marcellus Shale Advisory Commission that do not to need legislative action, including both environmental protections and those related to public health. This is also an immediate imperative as there are a number of critical pieces that remain outstanding from that report.
PEC’s implementation priorities for 2012 includes:
Act 13 (Agency Rulemaking or Policy Revisions)
- Criteria for Water Management Plans consistent with new standards included in Section 3211.
- Criteria for new well site containment standards, including siting restrictions in floodplains [Sections 3218.2 and 3215].
- Criteria for wastewater tracking and reporting requirements pursuant to Section 3218.3.
- Criteria for tacking and reporting of air contaminant emissions pursuant to Section 3227.
- Procedures for disclosure of chemicals used in the hydraulic fracturing process pursuant to Sections 3222 and 3222.1.
Marcellus Shale Advisory Commission Report Recommendations
- Legislation establishing construction standards for private water wells. [9.2.17]
- Promote the use of non-freshwater sources for hydraulic fracturing. [9.2.22]
- Openly identify and establish adaptive Best Management Practices for the industry that can be utilized in addition to regulatory measures. [9.2.23]
- Maintain public benchmarking of Pennsylvania’s regulatory management programs. [9.2.25]
- Enhance planning efforts and resources by proactively identifying areas of high ecological value; establish additional criteria or restrictions for development in or near these areas. [9.2.26]
- Improve planning and permit review through adoption of enhanced site assessment criteria. [9.2.29]
- Advance public health evaluation and reporting efforts. [9.2.37 to 9.2.43]
Looking ahead, PEC remains confident that the best way to manage the impacts of the burgeoning shale gas industry is through aggressive adaptive management. To achieve this, policymakers, regulators, industry, communities, and advocacy groups must all work toward development, understanding, and enforcement of strong and evolving standards that are protective of human health and the environment.
For our part, PEC pledges to continue on this path and will continue to fight for the standards that we believe are necessary to allow the industry to develop but within strict parameters that protect Pennsylvania’s common good.
PEC sent the following message in to the Governor and Leadership in the General Assembly today:
After several years of work and debate, Pennsylvania stands close to passage of meaningful updates to the decades-old Oil & Gas Act. On behalf of the Pennsylvania Environmental Council (PEC), we are writing to urge you to quickly reconcile and pass these critical protection provisions before the end of the year.
Because shale gas development has already established a tremendous footprint in our state, and it will only continue to grow, it is essential that these protections be enacted now – they should not be captive to further delays resulting from negotiation on an impact fee or local land use controls.
PEC and its partnering environmental organizations (Chesapeake Bay Foundation, The Nature Conservancy, and Western Pennsylvania Conservancy, who all served on the Governor’s Marcellus Shale Advisory Commission) have developed a summary annotation (available here) of what we believe is essential in the resulting reconciliation process – whether the framework of SB1100 or former HB1950 is the ultimate vehicle of choice. This summary is in line with the recommendations of the Marcellus Shale Advisory Commission as well as the objective and inclusive work that PEC and our other partners have performed through consultation with agencies, industry, and communities.
With each passing day Pennsylvania continues to manage this widespread, industrial-scale activity pursuant to a severely outdated law. It is time to act.