By Sharon Kelly
The Pennsylvania's Environmental Hearing Board ordered Sunoco Pipeline LP Tuesday to temporarily halt some types of work on a $2.5 billion pipeline project designed to carry 275,000 barrels a day of butane, propane and other liquid fossil fuels from Ohio and West Virginia, across Pennsylvania, to the Atlantic coast.
On July 19, three environmental groups presented Judge Bernard Labuskes, Jr. with documentation showing that the project had caused dozens of drilling fluid spills and other accidents between April and mid-June.
By Ed Rodgers
Watch as volunteers rescue thousands of horseshoe crabs in Delaware Bay on the Northeast seaboard late last month as higher than usual tides hit the area.
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The Pennsylvania Supreme Court has ruled that the state's controversial Act 13 is unconstitutional, calling it a special law that benefits the shale gas industry. The massive Marcellus Shale formation, which underlies a large area of Western Pennsylvania, provides more than 36 percent of the shale gas produced in the U.S.
Big news! PA Supreme Court rules Act 13 is an unconstitutional “special law” benefiting oil & gas industries. https://t.co/7jtMaKhnSe— FracTracker Alliance (@FracTracker Alliance)1475181015.0
The Pennsylvania State Legislature passed Act 13 in 2012 and it was almost immediately challenged by seven of the state's municipalities along with the Delaware Riverkeeper Network and a private physician. The onerous law enabled natural gas companies to seize privately owned subsurface property through eminent domain, placed a gag order on health professionals to prevent them from getting information on drilling chemicals that could harm their patients, and limited notification of spills and leaks to public water suppliers, excluding owners of private wells that supply drinking water for 25 percent of Pennsylvania residents. Act 13 also pre-empted municipal zoning of oil and gas development.
"The decision is another historic vindication for the people's constitutional rights," stated Jordan Yeager, lead counsel on the case representing the Delaware Riverkeeper Network and Bucks County municipalities on the case. "The court has made a clear declaration that the Pennsylvania legislature cannot enact special laws that benefit the fossil fuel industry and injure the rest of us."
On Dec. 19, 2013, the state Supreme Court issued a narrow ruling on the grounds that the law violated the Environmental Rights Amendment of the Pennsylvania Constitution. That ruling returned local zoning rights to municipalities. It also ordered the state Commonwealth Court to reconsider other provisions. The ruling by the Supreme Court issued Wednesday addresses those rulings and should end the litigation.
Protestors march earlier this year for clean energy.Delaware Riverkeeper Network
The state Supreme Court held that the gag order and exclusion of private wells from notification were all unconstitutional. The ruling prohibits the state Public Utility Commission from having oversight on local ordinances and from withholding certain payments from municipalities that limit shale gas drilling.
In its ruling, the state Supreme Court wrote that the eminent domain provision of Act 13 "is unconstitutional on its face, as it grants a corporation the power of eminent domain to take private property for a private purpose, in violation of the Fifth Amendment of the United States Constitution and Article I, Sections 1 and 10 of the Pennsylvania Constitution."
"A majority of our state legislators joined with the oil and gas industry in placing corporate desires and profits over the constitutional rights of Pennsylvania citizens," said John Smith, the attorney who represented four Western Pennsylvania municipalities in the case. "The Pennsylvania Supreme Court correctly found that the constitution is not a document to be ignored."
The gas industry appeared to shrug it off. "It's not a big deal in the grand scheme of things," said energy attorney Michael Krancer, referring to the court's decision. Krancer was secretary of the Pennsylvania Department of Environmental Protection when the law was passed.
The industry-side Marcellus Drilling News pulled no punches in its reaction to the ruling. They called the plaintiffs "seven selfish towns" (twice in one paragraph) and blamed the ruling on "four left-wing Democrat judges." But even they admitted that, for all practical purposes, Act 13 is now dead.
'Wake up, humanity! Time is running out!'
At high Noon Sunday, with temperatures heading toward 95 degrees, I'm confident I was not the only one preparing to march through the streets of downtown Philadelphia who recalled that old elementary-school story about the wig-wearing drafters of the Declaration of Independence huddled inside of Independence Hall on a sweltering July day.
Residents, activists and community leaders held coordinated actions across New Jersey yesterday to pressure legislative leaders into acting on the Fracking Waste Ban Bill. Notably, they collected and delivered more than 17,000 petition signatures in support of the measure to Assembly Speaker Oliver and Assembly Minority Leader Bramnick.
The Fracking Waste Ban Bill would protect residents by banning the disposal, treatment and discharge of toxic waste created through the process of fracking, a highly controversial natural gas drilling method. The legislation was passed with overwhelming bipartisan support last year but was vetoed by the governor in September. At various rallies today, activists dressed as ostriches, urging Oliver and Bramnick not to “bury their heads in the sand” but instead take immediate action to protect state residents.
“It’s very simple—the people of New Jersey want this veto overridden, and they’re expecting legislative leaders to act now,” said Jim Walsh, regional director of Food & Water Watch. “There’s nothing more important than the health and safety of New Jersey families, and an inundation of toxic fracking waste into our state would threaten that.”
New Jersey’s wastewater treatment facilities are not designed to handle the toxins found in fracking wastewater and cannot remove all the toxics before discharging the waste into public waterways. Fracking waste is exempted from critical federal protections regulating the disposal of hazardous waste and toxic materials.
“This is the most important clean water issue New Jersey has faced since the passage of the Clean Water Act 40 years ago. If we had fracking waste stored here when Sandy hit a disaster would have become an environmental nightmare,” said Jeff Tittel, director of New Jersey Sierra Club. “We already have enough toxic sites and polluted water, we do not need to create more through fracking waste. We need the legislature to stand up for clean water and against special interests by voting to override the veto.”
Analysis from the non-partisan Office of Legislative Services confirms the constitutionality of the legislation, directly refuting the governor’s claims to the contrary. A recent study from Stony Brook University finds that the greatest risk of contamination of drinking water and environmental pollution from the fracking process occurs during the wastewater disposal period.
“The legislature took a stand to protect our drinking water and communities from frack waste pollution with the passage of the Frack Waste Ban Bill. With the governor’s veto, the bill will die unless the legislature stands up again,” said Tracy Carluccio, deputy director of Delaware Riverkeeper Network. “We need all those who voted to prohibit the dumping of this waste to vote again to override the veto to prevent the pollution and health impacts that will result from this radioactive material.”
“This is an important vote—to protect our drinking water, to avoid enabling climate disruption in a post-Sandy New Jersey, and to bring hope to citizens that their representatives will put partisan politics aside and do the right thing,” said Dave Pringle, campaign director of New Jersey Environmental Federation. “It’s one thing to vote the right way when your vote’s not needed, but it’s another when your vote will be the difference maker.”
Visit EcoWatch’s FRACKING page for more related news on this topic.
The Delaware Riverkeeper Network (DRN) announced the settlement of an appeal DRN filed with the Pennsylvania Environmental Hearing Board concerning one of the first shale gas wells drilled in the Delaware River Basin. The well is a vertical gas well and was not hydraulically fractured.
The appeal—filed in coordination with Damascus Citizens for Sustainability and local residents—involved the Newfield Appalachia Pa., LLC “Woodlands” well in Damascus Township, Wayne County, Pa. The well is located within the Hollister Creek watershed, a designated Special Protection High Quality (HQ) watershed. The project is also within the Upper Delaware River Basin and is approximately 0.43 miles from the Delaware River. This section of the Delaware River Watershed is located within the Upper Delaware Scenic and Recreational River, a National Wild and Scenic River.
During the course of the appeal, DRN conducted depositions of DEP personnel involved in approval of the well permit. As a result of these depositions, DRN was able to establish that for well projects with under five (5) acres of earth disturbance, the department has not considered the potential impacts of these projects on special protection watersheds. DRN was also able to establish that for the wells that have been drilled within the Delaware River Basin, the department has not considered the potential impacts of those wells on the Delaware River or the Delaware River Basin. Further, DRN established that department personnel who are responsible for reviewing permit applications have spent, on average, less than thirty-five (35) minutes per permit prior to granting final authorization.
As part of the settlement of this appeal, DRN and the other appellants were successful in obtaining important programmatic changes. These changes will improve how future well permits are processed throughout Pennsylvania and will provide greater protection to Pennsylvania’s high quality and exceptional value watersheds.
“Pennsylvania’s regulatory program is demonstrably deficient when it comes to protecting waterways and communities from gas drilling, this litigation and our depositions just highlighted a few of those pitfalls. Our settlement definitely secured important improvements to the review process, but we are under no misconception that this is in any way the cure for gas drilling in the Commonwealth,” said Maya van Rossum, the Delaware Riverkeeper.
“The DEP needs to do a better job of reviewing permits, rather than just using its rubber stamp. This settlement will help make that happen,” said Jordan Yeager, lead attorney on the case for the Delaware Riverkeeper Network and with the firm Curtin & Heefner.
Under the terms of the settlement, DEP has agreed that for future shale gas projects in special protection watersheds (designated or existing use of High Quality or Exceptional Value pursuant to 25 Pa. Code Chapter 93), applicants must demonstrate compliance with the Commonwealth’s anti-degradation regulations prior to the commencement of any earth disturbance activities. Prior to this settlement, for projects under five (5) acres, the department was not requiring applicants to demonstrate this.
Further, under the settlement, DEP has agreed to revise its "Coordination of Resources" form and instructions by: 1) listing all Pennsylvania rivers designated under the Federal Wild and Scenic Rivers program, including the Delaware River; and 2) including a definition of what constitutes the river corridor under the federal designation, in accordance with the Federal Wild and Scenic Rivers Act, 16 U.S.C. §1271 et seq. This change will help ensure that in future permitting decisions, the DEP will consider the potential impacts of gas drilling projects on the Delaware River and on other rivers designated under the federal Wild & Scenic Rivers program.
The Upper and Middle Delaware River, designated by Congress as Wild and Scenic in 1978, is underlain by Marcellus and Utica shales which have been heavily leased for gas drilling. The current moratorium in the Delaware River Watershed, established by the Delaware River Basin Commission (DRBC) in May 2010, has prevented gas development from moving ahead in the basin. DRBC is considering the adoption of natural gas regulations, which would lift the moratorium. DRN and a large and diverse public have criticized the draft regulations as wholly inadequate and oppose their adoption, calling for a comprehensive environmental study and cumulative impact analysis.
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