Shale drilling sets up potential regulatory war
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Editor's note: This is the second in an occasional series on energy law and the Marcellus Shale play.
As the natural gas industry in Pennsylvania continues its rapid swell on the strength of the Marcellus Shale, environmental attorneys said it was likely to be -- and in some ways already is -- a source of friction between state and federal regulators.
All of the attorneys The Legal spoke to said it was largely up to state regulators to keep Pennsylvania's natural gas industry in check.
How long this will be the case, however, could depend on how well the state handles this responsibility, and that remains to be seen, lawyers said.
And with the U.S. Environmental Protection Agency already making clear its interest in the environmental impact of the Marcellus Shale, a regulatory turf war may be imminent.
As it stands now, according to many of the attorneys The Legal spoke to, the state Department of Environmental Protection holds the majority of the permitting and enforcement power with regard to the Marcellus Shale, while the EPA's jurisdiction is more narrowly relegated to the role of overseer.
Kevin Garber, chairman of the environment, energy and natural resources group at Pittsburgh-based Babst Calland Clements & Zomnir, said the DEP was "the front line and the EPA is kind of looking over its shoulder."
Or, as environmental lawyer Harry F. Klodowski Jr. of Hull & Klodowski in Pine put it, the EPA's regulatory powers with regard to the Marcellus Shale play are "pretty damn limited."
But Mr. Klodowski added that it was "really kind of amazing" how unregulated the gas industry is in general, especially when compared to other industries, such as steel.
As natural gas drilling in Pennsylvania continues to heat up and the need for regulation becomes more pressing, will the EPA seek to increase its foothold?
John R. Hanger, special counsel to Eckert Seamans Cherin & Mellott in Pittsburgh and, up until January of this year, secretary of the DEP, said the EPA currently has jurisdiction under the Clean Water Act to regulate water discharge from the process of hydraulic fracturing, also known as fracking.
"If it was a violation dealing with discharge of drilling wastewater to rivers and streams, the EPA could act independently," Mr. Hanger said.
First Published April 25, 2011 12:00 am
