Drillers and Frackers Contorting in the Wake of PA Supreme Court Ruling

It’s funny to watch the frackers and drillers contorting themselves to call for environmental opposition to the Pennsylvania Supreme Court decision that struck down as unconstitutional many aspects of the pro-drilling legislation known as Act 13. 

After crafting and passing (through their legislative marionettes) a piece of legislation so overwhelmingly favorable to the drilling industry at the expense of community and environmental protection the drillers and frackers are now claiming that the decision, which struck down many elements of this law, is environmentally bad.

The most recent assertion is that because the state Supreme Court struck section 3215(b) of the law, the provision that talked about buffers, the decision weakened environmental protection for waterways.

What a farce!

First it is important to know that section 3215(b) included among its provisions a mandatory waiver provision – a requirement that DEP waive the minimal buffer requirements included in the law when asked by the industry.  And that if in its wisdom (which right now is questionable at best) DEP told the driller/fracker that they had to take extra measures to protect streams as a result of the buffer waiver, the driller had the right take that request to court and it was incumbent on the DEP to defend the need for additional measures rather than being the responsibility of the driller to prove it was not needed.  And if DEP requested no additional measures, or ones that were clearly too weak, municipalities had no right similar to the drillers/frackers to challenge the decision in court. 

It is equally important to know that the buffer provisions in section 3215 were woefully weak.  Shale gas development is a highly industrial process bringing with it huge disturbance to the landscape, toxic chemicals and waste stored and used on site (including in open pits), miles of drilling resulting in an abundance of contaminated drilling muds, and a whole host of other industrial operations – the buffer provisions of section 3215 were not crafted upon good science to protect healthy streams, they were crafted so as to give the drillers the right to drill too close to our precious waterways and to prevent either a future DEP (one truly interested in environmental protection) or concerned communities from mandating bigger buffer requirements.

The removal of section 3215(b) of the bad law simply reinstated previous legal authorities already held by the DEP and municipalities to protect streams, including with buffers. 

ü  It restored the rights of communities to, through zoning, instill greater buffer protections in order to protect community waterways. 

ü  It restored the 150 foot buffer requirement the state already has in place for exceptional value and high quality streams (150 feet, while not an adequate buffer to protect our special protection streams from drilling operations, is at least bigger than the 100 foot buffer in act 13). 

ü  It restored the legal incentives for 100 foot buffers from all development, including for the drillers. 

ü  It restored the ability of the DEP to increase buffer requirements for all streams through regulation under existing legislation. 

The Delaware Riverkeeper Network, myself in my role as the Delaware Riverkeeper, the seven towns that joined us in litigation (Yardley Borough, Nockamixon Township, Robinson Township, Peters Township, South Fayette Township, Mt. Pleasant Township and Cecil Township), the town officials Brian Coppola, David Ball, and Dr. M. Khan, have secured a decision that is historically protective of the environment. 

The decision we secured clearly establishes the obligation of the Pennsylvania legislature, the Governor, all state agency heads, and all local municipal officials to protect a healthy environment for present and future generations. 

The Pennsylvania Supreme Court’s December 18, 2013 decision vindicated the importance and power of Environmental Rights Amendment of the Pennsylvania Constitution; it promised all generations of Pennsylvanians that they will benefit from pure water, clean air and a healthy environment, giving them the ability to defend that right in the courts if it is violated.

So let the industry and their political cronies twist in the wind of hypocrisy – they know they passed legislation that would devastate Pennsylvania’s environment for generations to come in order to secure big profits and golden parachutes for their executives.  

We know we secured a legal and moral victory that will protect our environment for the benefit of all – those born and those yet to come.