PEC and CSSD

Davitt Woodwell, President and CEO
Pennsylvania Environmental Council
September 9, 2014

For the last forty-four years, the Pennsylvania Environmental Council (“PEC “) has participated as a central figure in the environmental and conservation discussion in Pennsylvania. And we will continue to.

For the last five years, PEC has participated as a central figure in the debates surrounding unconventional shale gas development in Pennsylvania. And we will continue to.

For the last two-and–a-half years, PEC has participated as a central figure in the Center for Sustainable Shale Development. (“CSSD”). And we will continue to.

PEC is, arguably, the strongest voice in Pennsylvania for strong and actionable regulation of the shale gas industry.  Take a look at our record – here and here — which is placed on our website for the world to see. We have pushed for mandatory setbacks, greater planning, public disclosure, groundwater protections, controls on waste and wastewater, public health research, stronger bonding and fines, and greater enforcement.  We have not gotten all that we wanted –Pennsylvania doesn’t even have regulations from Act 13 (passed in February of 2012) yet, which is inexcusable. But we won’t stop pushing.

The unconventional development of shale gas is one of the most complicated and critical environmental issues that Pennsylvania has ever faced. A fossil fuel is taken from deep underground using a portable industrial process that brings and leaves impacts wherever it goes. The potential is there for great damage to natural resources of the Commonwealth, along with significant impacts on human health.

After it is extracted, the gas gets moved to markets. However, we still have not yet figured out what to do about the probable 25,000 miles of new pipeline and associated impacts coming to our state over the next number of years. Finally, the gas is burned for a variety of uses and emits other pollutants.

Even with all that, shale gas offers, but does not guarantee, opportunity to temper other impacts that our seemingly insatiable appetite for energy extracts from, and exacts on, Pennsylvania every day. Our state emits a massively disproportionate share of the world’s greenhouse gases, with coal burning as the main component of that belching. Using natural gas appears to emit less CO2e, assuming we get the leakage rate of methane from well pad to burner tip figured out, with leaks being aggressively detected and repaired. That helps the essential fight on climate change.

It would be nice to be able to say that shale gas will be the turning point in our energy future, but it won’t.  We still must look – today – toward energy conservation, efficiency, and, most importantly for PEC, changing the generation mix to low-impact sources: small and micro-hydro, solar, wind, geothermal, algae, and others to get us to the energy future we must achieve.

In the meantime, it is imperative to ensure that shale gas development does not proceed as so many extractive industries in Pennsylvania have over the last 200 years: reap now, stick future generations with the negative legacies. Coal did it, oil did it, shallow gas did it, limestone did it, timbering did it, industrial sites did it. Bony piles, abandoned mine drainage, subsidence, brownfields, erosion – all were left for someone down the line. Pennsylvania still deals with most of these every day.

So how do we avoid legacies from shale gas development? For PEC, it means understanding issues from all sides, formulating tangible and effective programs to address them, and working to make those programs reality. It means understanding stakeholders on all sides of the issues. It means being resolute time and again in fighting for stronger standards. It also means not getting everything we want from the legislative and regulatory processes, but also not letting that stop our work toward greater protection.

It is that last piece that brought us to and keeps us involved with the Center for Sustainable Shale Development.

Through CSSD, we are able to work with a group of similarly-minded NGOs pushing for aspirational standards that can guide the shale gas industry to better and better practices.  Not “best” practices (which are ever evolving), but leading practices. Practices that go beyond regulation, beyond the comfort level of the industry. These standards do not replace regulations – they help inform and drive them.

And, yes, through this process we work with gas producers. Those willing to say that they will exceed permit requirements: a unique place for them to be when doing so will cost more and potentially put them at odds with others in their field. For PEC, this helps us better understand how the industry works and what practices are truly attainable now; thereby informing our broader positions on unconventional shale development.

Through CSSD’s process, we, along with all of the other participants, have been able to raise the bar on a number of practices with standards that address core issues of air and water quality. Look at the standards and you will see requirements that at least meet and in most cases exceed requirements in Pennsylvania and the other Appalachian States.  These standards were not arrived at blithely. Over the past three years, we have been negotiating these standards and have agreed on fifteen so far.  More need to come and existing standards need to be revisited. And companies need to be certified to show the efficacy of their undertaking.

For us, CSSD is already a success, we have learned a great deal, promulgated standards, and influenced pubic policy.  In fact, CSSD’s “Area of Review” standard for pre-drilling assessments has been lifted almost verbatim by Pennsylvania’s Department of Environmental Protection and included in proposed regulation.

Going forward, we will continue to look at what has and has not worked in our approach to unconventional shale development. We will continue to fight for meaningful, enforceable, and enforced regulation of the industry from well pad to burner tip and seismic testing to well closure. Once again, we anticipate that we won’t get everything we want, but we will have impact and help ensure protections for Pennsylvanians.

At the same time, we will also work to set a path forward for the Commonwealth’s energy and climate future, looking beyond shale and continuing to figure out how to balance our energy-dependent society with environmental and conservation goals. We spend a lot of our time working with people and organizations on all sides of these issues. And we will continue to.

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Website Update – pecpa.org

PEC is working on a new website — we hope to have it launched by the end of September. In the interim and thereafter, our work on shale gas issues will be reflected at www.pecpa.org

All of the content from this site will be transfered to the new site when it goes live.

Thank you for visiting.

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PEC Joins EDF and TNC on Shale Gas Proposed Regulation Comments

PEC joined the Environmental Defense Fund and the Pennsylvania Chapter of The Nature Conservancy in submitting joint comments to the Department of Environmental Protection’s proposed rulemaking for 25 Pa.Code Chapter 78.

You can read them here: EDF PEC TNC Chapter 78 Comments. March 2014

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PEC Comments at Public Hearing on Shale Gas Rulemaking Proposal

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:

PEC EQB Public Hearing Comments. Jan 2014

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PEC Statement on Act 13 Ruling

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.

 

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PEC Response to MSC on Regulation

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.

 

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PEC Testimony before the House Democratic Policy Committee

The Pennsylvania Environmental Council presented the following testimony to the Pennsylvania House Democratic Policy Committee on shale gas development in the Commonwealth.

PEC Comments to PaHDPC. 16 Sept 2013

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PEC Testimony Before PA House Democratic Policy Committee

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

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PEC Statement on the Commonwealth Court’s Decision Concerning Act 13

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.

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PEC Statement on Chemical Disclosure in Act 13

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.

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