Oil and Gas Drillers Take on Forest Service in Court Battle to Frack Allegheny National Forest
A federal judge in Erie scheduled oral argument for July 2, 2012 (9 a.m., in the Erie Federal Courthouse) regarding recent motions filed by parties involved in litigation over oil and gas drilling in the Allegheny National Forest. U.S. District Court Judge Sean McLaughlin ordered the arguments in the case, Minard Run Oil Co. v. U.S. Forest Service.
The litigation began three years ago after the Forest Service entered into a settlement agreement with three conservation groups—Forest Service Employees for Environmental Ethics, Allegheny Defense Project and Sierra Club. Under the settlement, the Forest Service agreed to undertake “appropriate” environmental analysis of proposed oil and gas drilling projects prior to authorizing access across Allegheny National Forest lands.
The plaintiffs in the litigation, Minard Run Oil Co. and Pennsylvania Independent Oil and Gas Association, sued the Forest Service and the three conservation groups, claiming the settlement exceeded the Forest Service’s authority to protect Pennsylvania’s only national forest from the impacts of oil and gas drilling.
In December 2009, Judge McLaughlin granted the plaintiffs’ motion for a preliminary injunction, which blocked the settlement from going into effect while the case was being litigated. Both the Forest Service and the conservation groups appealed that preliminary decision. In September 2011, the U.S. Court of Appeals for the Third Circuit upheld Judge McLaughlin’s preliminary decision. According to the courts, because the Forest Service does not own the mineral rights beneath 93 percent of the Allegheny National Forest, the agency cannot regulate access to the mineral estate, even though that access directly impacts national forest lands through extensive road, well site and pipeline construction.
The parties are now at loggerheads about how the case should proceed. As will be explained further below, the conservation groups want Judge McLaughlin to reconsider his preliminary decision because of new research into the history of the creation of national forests in the eastern U.S. The oil and gas plaintiffs want Judge McLaughlin to simply convert his previous preliminary decision into a permanent injunction against the Forest Service. That would effectively bar the Forest Service from attempting to implement any measures to mitigate the environmental impacts of most oil and gas drilling in the Allegheny National Forest—a result that is already contributing to cross-state pollution entering New York.
For example, the New York Department of Environmental Conservation (NYDEC) recently filed an administrative complaint against U.S. Energy Development Corporation because of sediment pollution from its oil and gas operations in Pennsylvania’s Allegheny National Forest. The amount of sediment runoff from oil and gas roads in the Allegheny National Forest is staggering. A recent report by Penn State’s Center for Dirt and Gravel Road Studies concluded that oil and gas roads in the Allegheny National Forest produce 450 percent more sediment pollution than other public roads in Pennsylvania. The Forest Service should obviously be allowed to regulate to protect our forested watersheds from that kind of reckless pollution.
According to the courts, however, the Forest Service is powerless to regulate this pollution in the Allegheny National Forest. The courts and the oil and gas industry assure the public that this does not mean that oil and gas drilling will go completely unregulated in the Allegheny National Forest because the Pennsylvania Department of Environmental Protection (PADEP) still regulates oil and gas drilling at the state level. Of course, if the PADEP were doing its job, the NYDEC would not have to file an administrative complaint against U.S. Energy for sediment pollution originating in Pennsylvania.
The fact is, the PADEP sees itself as a facilitator of oil and gas drilling rather than a regulator. That is why the Forest Service must be allowed to regulate to protect the Allegheny National Forest—and it is precisely why eastern national forests, including the Allegheny National Forest, were created in the first place.
In 1911, Congress passed the Weeks Act, the first federal law allowing the Forest Service to acquire private lands in the eastern U.S. for designation as national forests. In the late 1800s and early 1900s, flooding and forest fires were rampant throughout the eastern U.S. because of widespread, unregulated clearcutting. One of the primary purposes of the Weeks Act was to allow the Forest Service to regulate to protect these lands and reduce sediment pollution in our streams and rivers.
House and Senate reports published prior to the Weeks Act’s passage, reveal a common theme: that the states had failed to protect these lands and could not be expected to correct the problem. In other words, Congress recognized that the flooding and wildfires caused by unregulated clearcutting were a national problem, not merely a state or local problem. The purpose and intent in passing the Weeks Act was to provide the Forest Service authority to regulate land use so as to protect these forests and watersheds. That authority must include the power to regulate access across the federal surface for the extraction of privately owned minerals.
There is nothing in the congressional record indicating that Congress did not intend for the Forest Service to regulate private oil and gas drilling activities in eastern national forests. In fact, just the opposite is true. The congressional record reveals that Congress intended the Forest Service to have the same power over eastern national forests as it had over national forests in the western U.S. That would include the authority to require private oil and gas companies to implement reasonable mitigation measures to reduce their environmental impact in the Allegheny National Forest.
Furthermore, the Weeks Act required that the federal government obtain consent from the state legislature prior to establishment of national forests in the state. In May 1911, the Pennsylvania legislature expressly consented to the creation of what would eventually become the Allegheny National Forest. The Pennsylvania legislature said that the federal government would have authority to pass laws that “in its judgment may be necessary for the management, control and protection” of national forest lands. In other words, the Pennsylvania legislature unambiguously turned over the “management, control and protection” of lands that would become the Allegheny National Forest to the federal government.
A century later, the oil and gas industry is attempting to erase this history. Earlier this year, the Pennsylvania legislature enacted Act 13. Most people are aware of this legislation because it stripped local municipalities from being able to pass ordinances aimed at protecting communities from the onslaught of shale gas drilling.
Another provision of the act, however, allegedly “clarified” the 1911 legislation consenting to the creation of the Allegheny National Forest. Act 13 says that the original consent legislation was never intended to allow the federal government, through the Forest Service, to regulate oil and gas companies in the Allegheny National Forest.
Of course, if the Pennsylvania legislature intended such a result, it could have easily inserted such a provision in 1911. Oil and gas drilling had been around for approximately 50 years at that point, so the state legislature in 1911 was certainly aware of the issue. The current state legislature cannot revoke or modify the consent of the 1911 state legislature.
These are just some of the issues that are going to be debated at the hearing on July 2. Show your support for the Allegheny National Forest and sensible regulation of the oil and gas industry by attending the hearing. Contact the Allegheny Defense Project for details regarding hearing.
We need you there to show support for the protection of our Allegheny National Forest. We need you to witness the proceedings. Join us on July 2 at 9 a.m. at the Erie Federal Courthouse (17 South Park Row, Erie, Pa). Call 814-520-4639 if you need more information.
New fossils uncovered in Argentina may belong to one of the largest animals to have walked on Earth.
- Groundbreaking Fossil Shows Prehistoric 15-Foot Reptile Tried to ... ›
- Skull of Smallest Known Dinosaur Found in 99-Million-Year Old Amber ›
- Giant 'Toothed' Birds Flew Over Antarctica 40 Million Years Ago ... ›
- World's Second-Largest Egg Found in Antarctica Probably Hatched ... ›
EcoWatch Daily Newsletter
- Pruitt Guts the Clean Power Plan: How Weak Will the New EPA ... ›
- It's Official: Trump Administration to Repeal Clean Power Plan ... ›
- 'Deadly' Clean Power Plan Replacement ›
By Jonathan Runstadler and Kaitlin Sawatzki
Over the course of the COVID-19 pandemic, researchers have found coronavirus infections in pet cats and dogs and in multiple zoo animals, including big cats and gorillas. These infections have even happened when staff were using personal protective equipment.
- Gorillas in San Diego Test Positive for Coronavirus - EcoWatch ›
- Wildlife Rehabilitators Are Overwhelmed During the Pandemic. In ... ›
- Coronavirus Pandemic Linked to Destruction of Wildlife and World's ... ›
- Utah Mink Becomes First Wild Animal to Test Positive for Coronavirus ›
By Peter Giger
The speed and scale of the response to COVID-19 by governments, businesses and individuals seems to provide hope that we can react to the climate change crisis in a similarly decisive manner - but history tells us that humans do not react to slow-moving and distant threats.
A Game of Jenga<p>Think of it as a game of Jenga and the planet's climate system as the tower. For generations, we have been slowly removing blocks. But at some point, we will remove a pivotal block, such as the collapse of one of the major global ocean circulation systems, for example the Atlantic Meridional Overturning Circulation (AMOC), that will cause all or part of the global climate system to fall into a planetary emergency.</p><p>But worse still, it could cause runaway damage: Where the tipping points form a domino-like cascade, where breaching one triggers breaches of others, creating an unstoppable shift to a radically and swiftly changing climate.</p><p>One of the most concerning tipping points is mass methane release. Methane can be found in deep freeze storage within permafrost and at the bottom of the deepest oceans in the form of methane hydrates. But rising sea and air temperatures are beginning to thaw these stores of methane.</p><p>This would release a powerful greenhouse gas into the atmosphere, 30-times more potent than carbon dioxide as a global warming agent. This would drastically increase temperatures and rush us towards the breach of other tipping points.</p><p>This could include the acceleration of ice thaw on all three of the globe's large, land-based ice sheets – Greenland, West Antarctica and the Wilkes Basin in East Antarctica. The potential collapse of the West Antarctic ice sheet is seen as a key tipping point, as its loss could eventually <a href="https://science.sciencemag.org/content/324/5929/901" target="_blank">raise global sea levels by 3.3 meters</a> with important regional variations.</p><p>More than that, we would be on the irreversible path to full land-ice melt, causing sea levels to rise by up to 30 meters, roughly at the rate of two meters per century, or maybe faster. Just look at the raised beaches around the world, at the last high stand of global sea level, at the end of the Pleistocene period around 120,0000 years ago, to see the evidence of such a warm world, which was just 2°C warmer than the present day.</p>
Cutting Off Circulation<p>As well as devastating low-lying and coastal areas around the world, melting polar ice could set off another tipping point: a disablement to the AMOC.</p><p>This circulation system drives a northward flow of warm, salty water on the upper layers of the ocean from the tropics to the northeast Atlantic region, and a southward flow of cold water deep in the ocean.</p><p>The ocean conveyor belt has a major effect on the climate, seasonal cycles and temperature in western and northern Europe. It means the region is warmer than other areas of similar latitude.</p><p>But melting ice from the Greenland ice sheet could threaten the AMOC system. It would dilute the salty sea water in the north Atlantic, making the water lighter and less able or unable to sink. This would slow the engine that drives this ocean circulation.</p><p><a href="https://www.carbonbrief.org/atlantic-conveyor-belt-has-slowed-15-per-cent-since-mid-twentieth-century" target="_blank">Recent research</a> suggests the AMOC has already weakened by around 15% since the middle of the 20th century. If this continues, it could have a major impact on the climate of the northern hemisphere, but particularly Europe. It may even lead to the <a href="https://ore.exeter.ac.uk/repository/handle/10871/39731?show=full" target="_blank" rel="noopener noreferrer">cessation of arable farming</a> in the UK, for instance.</p><p>It may also reduce rainfall over the Amazon basin, impact the monsoon systems in Asia and, by bringing warm waters into the Southern Ocean, further destabilize ice in Antarctica and accelerate global sea level rise.</p>
The Atlantic Meridional Overturning Circulation has a major effect on the climate. Praetorius (2018)
Is it Time to Declare a Climate Emergency?<p>At what stage, and at what rise in global temperatures, will these tipping points be reached? No one is entirely sure. It may take centuries, millennia or it could be imminent.</p><p>But as COVID-19 taught us, we need to prepare for the expected. We were aware of the risk of a pandemic. We also knew that we were not sufficiently prepared. But we didn't act in a meaningful manner. Thankfully, we have been able to fast-track the production of vaccines to combat COVID-19. But there is no vaccine for climate change once we have passed these tipping points.</p><p><a href="https://www.weforum.org/reports/the-global-risks-report-2021" target="_blank">We need to act now on our climate</a>. Act like these tipping points are imminent. And stop thinking of climate change as a slow-moving, long-term threat that enables us to kick the problem down the road and let future generations deal with it. We must take immediate action to reduce global warming and fulfill our commitments to the <a href="https://www.ipcc.ch/sr15/" target="_blank" rel="noopener noreferrer">Paris Agreement</a>, and build resilience with these tipping points in mind.</p><p>We need to plan now to mitigate greenhouse gas emissions, but we also need to plan for the impacts, such as the ability to feed everyone on the planet, develop plans to manage flood risk, as well as manage the social and geopolitical impacts of human migrations that will be a consequence of fight or flight decisions.</p><p>Breaching these tipping points would be cataclysmic and potentially far more devastating than COVID-19. Some may not enjoy hearing these messages, or consider them to be in the realm of science fiction. But if it injects a sense of urgency to make us respond to climate change like we have done to the pandemic, then we must talk more about what has happened before and will happen again.</p><p>Otherwise we will continue playing Jenga with our planet. And ultimately, there will only be one loser – us.</p>
By John R. Platt
The period of the 45th presidency will go down as dark days for the United States — not just for the violent insurgency and impeachment that capped off Donald Trump's four years in office, but for every regressive action that came before.
- Biden Announces $2 Trillion Climate and Green Recovery Plan ... ›
- How Biden and Kerry Can Rebuild America's Climate Leadership ... ›
- Biden's EPA Pick Michael Regan Urged to Address Environmental ... ›
- How Joe Biden's Climate Plan Compares to the Green New Deal ... ›