The Pennsylvania Supreme Court misread our rights at the expense of progress
January 11, 2014 11:13 PM
The Pennsylvania Supreme Court last month found several provisions of Act 13 unconstitutional.
By Timothy Merrill
Per-ni-cious: (adjective) Having a harmful effect, especially in a gradual and subtle way.
The Pennsylvania Supreme Court last month found several provisions of Act 13 unconstitutional. Those provisions mainly concerned the act’s attempt to impose consistent standards and regulations for natural gas development statewide as opposed to a potential patchwork of local municipal ordinances.
In delivering the court’s opinion, Chief Justice Ron Castille said the statewide provisions were unconstitutional because they could deny citizens of the commonwealth basic rights insured by Article I, Section 27 of the Pennsylvania Constitution, also known as the Environmental Rights Amendment. The amendment says that “[t]he people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.”
Justice Castille wrote that, while state government has broad police powers that could, for instance, promote the drilling of Marcellus Shale wells, it cannot violate Pennsylvanian’s environmental rights.
But his conclusion — that oil and gas development is inherently detrimental to the environment — is not supported by any evidence, data or facts in the court’s 162-page opinion. Rather, he seems to accept the plaintiffs’ stories and anecdotal evidence as the whole truth, as if he had watched a double feature of “Gasland” and “Promised Land.”
Justice Castille wrote, “As the citizens illustrate, development of the natural gas industry in the commonwealth unquestionably has and will have a lasting and undeniably detrimental impact on the quality of these core aspects of Pennsylvania’s environment, which are a part of the public trust.”
In this passage, he rejects the evidence of more than 60 years of responsible well drilling using hyrdofracking technology in Pennsylvania, and he seemingly ignores the mutually beneficial relationships among landowners, municipalities, counties and the oil and gas industry that have evolved and existed since the days of Col. Edwin Drake.
This court opinion, left unchallenged or overturned, gives credence to the arguments of activists who believe that drilling gas wells is inherently dangerous to the environment. And it gives support to those who deny science, evidence and facts that are contrary to their ideologies. That’s the pernicious part.
Justice Castille wrote, “By any responsible account, the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children and future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.”
This quote, which equates the environmental effects from highly regulated modern oil and gas drilling to the environmental impacts of unregulated and largely abandoned methods of coal mining, is just not true.
As with any human activity, incidents occur with oil and gas drilling that can have short-term impacts on the environment or property. The answer isn’t to stop those activities but to quickly address any environmental concerns, improve practices and involve the government in regulating those practices. This process is applied to hundreds of commercial, industrial, agricultural and manufacturing endeavors, and it is commonly called “progress.”
From a practical perspective, Act 13’s zoning provisions have no impact on the vast majority of communities where energy production has taken place in Pennsylvania under state laws and the regulatory authority of the Department of Environmental Protection. The conflict over individual property rights and local zoning in communities with higher population densities was inevitable and needed to be addressed by this new law, but it is now wrapped in a court decision focused on anecdotes and stories rather than facts.
Closer to home, I do not believe that my borough — governed by my friends and neighbors — should pass a zoning ordinance regulating drilling activity, which would require an expertise far beyond their capabilities. My borough council could hire a consultant to write zoning requirements, a process that could be duplicated in hundreds of municipalities in the commonwealth, resulting in an expensive and tedious process for local government and a complicated maze of conflicting regulations for energy producers and property owners eager to exercise their mineral rights.
I believe in Pennsylvania’s Environmental Rights Amendment and am proud to live in one of three states that have such a constitutional protection. The Supreme Court’s rigid interpretation of the ERA, however, flies in the face of the real-world balancing process — involving public health, regulation and the need for progress — that has taken place since voters approved it in 1971.
Manufacturers in Pennsylvania send emissions into the air and water that are analyzed, monitored and reported to DEP. Our electricity-generating stations produce low levels of coal-combustion byproducts, also regulated by DEP. Our automobiles produce small amounts of exhaust with every mile.
In return for these minor but measurable environmental impacts, we receive the benefits of jobs, incomes, commerce, mobility and the energy we take for granted to heat our homes and make our lives comfortable. Applying Justice Castille’s absolutist rationale regarding the ERA to these activities could easily make them unconstitutional, prohibitively expensive or both.
Believing that our environmental rights, guaranteed by Pennsylvania’s ERA, are jeopardized by responsible Marcellus Shale gas drilling is to ignore too much evidence to the contrary. Responsible, informed people will agree once they consider all the evidence.
Timothy Merrill, now retired, has been active in the gas industry for 40 years as a buyer, marketer and student of the industry (firstname.lastname@example.org). A resident of Edgeworth, he was involved in the legislative process that produced the Oil and Gas Act of 1985.
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