The Pennsylvania Supreme Court recognizes government's duty to protect the environment
January 16, 2014 12:00 AM
Timothy Merrill’s Jan. 12 commentary in Forum, “A Pernicious Ruling on Gas,” misunderstands the state Supreme Court’s recent Act 13 ruling, misrepresents the history of mineral extraction in Pennsylvania and minimizes the value of a clean environment to our state.
Mr. Merrill seems to fear that the state Supreme Court made a substantive judgment about the merits of natural gas development that will practically shut down the industry. Nothing could be further from the truth.
Act 13, by placing state power over local decision-making, represented overreaching by the Legislature to benefit a single industry, to the detriment of hundreds of thousands of Pennsylvanians who had relied on local government to protect the economic and social investments made in their homes and neighborhoods.
We should remember that it was not just the Supreme Court but also the Commonwealth Court that recognized a fundamental wrong had occurred when Act 13 attempted to force communities to accept heavy industrial activities in their backyards, thereby dashing the expectations of many who thought local rules would protect their tranquil lifestyle.
In his opinion striking down portions of Act 13, Chief Justice Ronald Castille did not undermine the ability of companies to develop natural gas or the right of property owners to lease their mineral rights. But Chief Justice Castille’s opinion did restore meaning to a fundamental right, voted on by an overwhelming majority of the people to be enshrined alongside other fundamental rights, such as freedom of speech and religion, in Pennsylvania’s Constitution.
Viewing Act 13 through the lens of Pennsylvania’s industrial past, Chief Justice Castille found that the General Assembly had violated Article I, Section 27 by precluding local government from accounting for the local impacts of the natural gas industry on public health, welfare and the environment. He explained that this article requires that each branch of government conserve our natural resources for this and future generations, just as a trustee would judiciously conserve the corpus of a trust, and that, as trustee, the government may not make decisions that would unreasonably fritter away those natural resources.
Pennsylvania’s history calls into question any belief that development of shale gas resources will result only in “short-term impacts on the environment or property,” as Mr. Merrill asserted.
The state has estimated that 300,000 abandoned gas wells exist in Western Pennsylvania. These abandoned wells continue to harm the environment and cost us money because the state did not adequately regulate an industry it thought would have only short-term impacts. Similarly, acid drainage from abandoned coal mines continues to harm 2,500 miles of streams because the state thought the industry too important to impose on it the real costs of its business.
Pennsylvania has permitted nearly 14,000 shale gas wells, and it is estimated that 80,000 could be drilled. Act 13 allows operators with more than 150 wells to post a minimal $600,000 bond to ensure proper closure of all their wells throughout the state. Researchers at Carnegie Mellon University estimated that the cost to plug each well could well exceed $100,000. Meanwhile, a recent study by Duke University found high levels of radioactivity in a stream near a facility that treated frack water from the shale gas industry.
While studies indicate that the state has significantly overestimated the number of direct and indirect jobs associated with shale gas development, Pennsylvania’s streams, forests and clean air continue to be an economic catalyst.
A 2010 study indicated that 33.6 million people visit our state parks each year, generating $738 million in direct payments and $463 million in annual sales, while supporting 8,439 jobs. A separate 2006 outdoor wildlife study showed that 87.5 million persons hunt, fish or recreate annually in Pennsylvania, generating revenue of $122.3 billion. While experts argue over whether shale gas reserves will be largely depleted in 20 or 100 years, a clean environment is the economic gift that keeps on giving.
The development of Pennsylvania’s natural gas resources continues apace. The Supreme Court’s decision does not prevent that development. It does, however, remind each level and branch of government that it has a constitutional duty to protect our fundamental right to clean air, land and water. If our government does not do so, then we citizens can take action to protect those rights.
George Jugovic Jr. is chief counsel for PennFuture (www.pennfuture.org).
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