By Larry J. Schweiger
Powerful fracking interests have been holding all the cards in Harrisburg for a long time. The Pennsylvania legislature, long notorious for falling under the overpowering control of moneyed fossil fuel lobbyists, passed a seriously flawed Oil and Gas law Act 13 of 2012. Signed by Governor Corbett, Republican lawmakers ignored the health and safety of the people of Pennsylvania by allowing drilling rigs within 500 feet homes and other occupied buildings. The General Assembly also usurped local authority by overriding zoning responsibilities declaring that Act 13 “preempts and supersedes the local regulation of oil and gas operations.”
They responded to the industry’s request to bulldoze over local governments by allowing the industry to develop natural gas from Marcellus and Utica shales virtually wherever they want. The legislature restricted “all local ordinances regulating oil and gas operations” by requiring them to “allow for the reasonable development of oil and gas resources.” The state-imposed uniform rules prohibited local governments from imposing more stringent standards. The state also limited the time for local review of proposed drilling permits.
The legislature also tried to gag doctors to prevent them from sharing vital information with their patients. The government hides the identity of chemicals injected into drilling operations, all done in the name of intellectual property rights. What could possibly go wrong with that?
Attorney General Josh Shapiro is giving us the answer as he announced the 235-page findings and recommendations of Pennsylvania’s 43rd Statewide Investigating Grand Jury’s 1st report on the unconventional oil and gas industry. The findings are compelling, profoundly troubling, and align with what has been going on. Environmentalists have known about the enforcement shenanigans all along. We have known that polluters were rarely held accountable by DEP or by the state legislature.
“The Grand Jury began this investigation based on evidence that private companies engaged in unconventional oil and gas activities have committed criminal violations of Pennsylvania’s environmental laws. We found such violations, and we are issuing several presentments recommending the filing of criminal charges. And we believe the investigation of additional crimes should, and will, continue beyond the term of this Grand Jury. In the course of our work, we found something else as well. We saw evidence that government institutions often failed in their constitutional duty to act as trustee and guardian “of all the people,” as Article 1 Section 27 provides.”
The Jury summarized things this way, “Pennsylvania has experienced an extraordinary oil and gas boom since the first unconventional well was drilled in Washington County in 2004. Today, approximately 12,500 unconventional oil and gas wells have been drilled in Pennsylvania, and around 10,500 are actively producing natural gas. Hydraulically fracturing a well is a heavy industrial operation. Even under ideal conditions, these operations significantly affect the environment and communities where they occur.”
The Jury reported, “(I)t took the agency years to promulgate regulations specifically targeting this industry, and some crucial areas still haven’t been covered…The Department says formal regs are subject by law to an inherently slow review process beyond DEP’s control.” This failure should be laid at the feet of the legislature, blocking DEP from developing responsible regulations. The legislature has enacted the most convoluted process to stymie rule-making to serve special interests while minimizing public input. The burdensome rule-making process includes “stakeholder” committees, the Environmental Quality Board, the House, and Senate standing committees, Independent Regulatory Review Commission, and the Attorney General for further approval. Each stop can be fatal to a proposed rule. Frackers are lawmaker’s favorite political contributors rewarded by failures to regulate. The Jury observed, “But we’ve seen the agency issue and enforce informal rules when it elected to do so, and on many occasions, it hasn’t availed itself of that option either. As a consequence, companies were free to continue environmentally hazardous activities that DEP had the power to stop.”
The Grand Jury was troubled by other practices. “We learned, for example, that DEP employees often elected not to inspect reported violations; some employees would just call the well’s operator, and rely on his version of events. And even in cases where investigation did show that a violation had occurred and that groundwater had been tainted, DEP employees typically chose not to notify neighboring landowners, who would have had no way to know there was a problem. Even today, there is apparently no policy that requires DEP to notify unsuspecting neighbors that a nearby resident’s water was found to be contaminated, and therefore that their water could be contaminated as well.”
“(I)n the early years, there just weren’t very many Notice of Violation NOVs issued for fracking violations. In fact, in 2011, the Department issued a directive prohibiting oil and gas NOVs unless they were personally reviewed and approved by the Secretary himself, the top official in the Department. The message to employees, intended or otherwise, was to leave fracking alone. That message was reinforced by the Department’s failure to use another powerful tool at its disposal: referral of cases for possible criminal prosecution. Even in recent years, when things have gotten better in some other respects, the number of criminal referrals for fracking infractions has been close to zero.”
The Grand Jury recognized the severe budget challenges that limited state enforcement and the absence of federal oversight. “This is made all the more challenging by the absence of any meaningful federal action, funding, studies, or response to the many environmental and health questions raised by fracking.” Rep. Greg Vitali (D-Delaware), the minority chair of the House Environmental Resources and Energy Committee, warned that DEP has been “decimated” by targeted budget cuts since the mid-1990s. The fiscal year 2016-17 state budget negotiations were a gift from Speaker Turzai to the fracking industry. They will go down as one of the most contentious and environmentally damaging in over a decade. Budget cuts caused DEP to lose 25 percent of its staff between 2003-2018 when fracking exploded, demanding more not less staff.
The Federal government took a hands-off policy on fracking. In 2005, George W. Bush and Dick Cheney set the stage for the fracking disaster when Bush signed into law a sweeping deregulation bill crafted by Cheney. Instead of tightening environmental controls to prevent future tragedies, the bill allowed corporations to duck responsibility for fracking activities, bypassing all Federal environmental laws. It was particularly convenient for Cheney, who held between $35 and $44 million in Halliburton stock, and substantial stock options.
The Jury learned, “DEP employees often elected not to inspect reported violations; some employees would just call the well’s operator, and rely on his version of events. And even in cases where investigation did show that a violation had occurred and that groundwater had been tainted, DEP employees typically chose not to notify neighboring landowners, who would have had no way to know there was a problem. Even today, there is apparently no policy that requires DEP to notify unsuspecting neighbors that a nearby resident’s water was found to be contaminated, and therefore that their water could be contaminated as well.”
The Jury asked DOH to share its opinion on whether fracking posed a risk to public health. The DOH responded, “[T]he science in this area is developing, and it is fair to say that it has not been proven that fracking harms public health.” “Well, yes, you can’t prove what you don’t examine, and DOH has gone out of its way in the past not to look at connections between fracking and health effects. The circumstantial evidence is compelling, and we think it was the Department’s job to look at it. The new study is a start, but is still far from the proper response of a public health agency.”
The Grand Jury made several “practical and available responses:”
1. Expand the no-drill zones
“Everything we’ve seen confirms that all the impacts of fracking activity are magnified by proximity. The closer you live to a gas well, compressor station, or pipeline, the more likely you are to suffer ill effects. Yet the state law minimum ‘setback’ for well construction is only 500 feet. That is dangerously close. An increase in the setback, to 2500 feet, is far from extreme, but would do a lot to protect residents from risk.”
2. Stop the chemical cover-up
“Let’s end this camouflage, provide transparency to the public, and mandate disclosure of all chemicals used in any aspect of unconventional drilling, so their possible hazards can be properly considered.”
3. Regulate all pipelines
The Jury recommends that all “gathering lines” be properly regulated.
4. Add up the air pollution sources
DEP generally considers individual pigging stations as too small to require attention. But these stations are often located near each other. So they have a cumulative effect that is significant and needs to be treated as one pollution source so that the actual impact on residents can be properly addressed.
5. Transport the toxic waste more safely
Pennsylvania should require trucks carrying waste containing chemicals used in the drilling and fracturing process display signage, specifically identifying the source of the waste they carry.
6. Deliver a real public health response
“Let’s release DOH from its self-imposed constraints and require it to treat fracking
like any other public health crisis. Send out the nurses and doctors to interview health
care professionals. Advertise in affected areas. Collect sophisticated data and
conduct sophisticated analysis.”
7. End the revolving door
DEP employees, once trained about fracking at government expense, are often poached away to much higher-paying jobs in the oil and gas industry. That creates a potential conflict of interest for government workers whose duty is to regulate the people who may well be their future employers. A revolving door rule would reduce that potential conflict by requiring a period of delay before taking a new job in the regulated industry.
8. Use criminal laws
“DEP won’t use its most powerful weapon against frackers who break the rules: criminal prosecution. But there’s no reason it should only be DEP’s call to make. Extend jurisdiction to the Office of Attorney General, so that its environmental crimes section can follow the evidence and make appropriate decisions about criminal charges, without leaving it all up to DEP.”
Can we learn from past mistakes? Lobbyists have long corrupted the Pennsylvania legislature. As early as 1899, Henry Lloyd Demarest observed John D. Rockefeller’s cash-heavy influence: “The Standard Oil has done everything with the Pennsylvania legislature except to refine it.” Under the influence of big oil, the legislature ignored calls to regulate the oil and gas industry for decades and saddled this generation with over $7 billion in liabilities to address well over 300,000 orphan and abandoned oil and gas wells. Groundwater contamination and methane emissions from unsealed wells are painful reminders of the corruption.
It’s time for an oil change in Harrisburg and Attorney General Josh Shapiro deserves our full support for courageously driving it.