In the April 24 edition of the Butler Eagle, State Senator Mary Jo White (R) argues that Act 13, the new legislation governing oil and gas development, is a “good law.”
If Act 13 is such a good law as Senator White thinks it is, why does the Act time and again shroud its implementation and administration in secrecy? Why does it exempt from the Pennsylvania Sunshine Act the deliberations of the Public Utility Commission (PUC) that will make critical judgments about local zoning laws that PUC determines (in the dark) to be contrary to Act 13?
PennFuture (a leading environmental organization that supports shale gas development if it is properly regulated) has just published a “plain language” overview of Act 13 which is essential reading for anyone who wants to know how this Act places its most important decisions in the dark and thus abrogates democratic protections for the people of Pennsylvania. That report can be accessed through their website: http://www.pennfuture.org/
At the very heart of Act 13 are new powers for the PUC. Yet the public will not be allowed to see how these powers are being exercised.
”2313(b). The statute provides that any information obtained by or submitted to the PUC as a result of any report, investigation, examination or hearing shall be kept confidential and only used for official purposes….This provision precludes the public from accessing through a public information request records used by the Public Utility Commission to fulfill its statutory duty of ensuring compliance with the law. In other words, the public may find it very difficult to ensure that public officials are fulfilling their statutory obligations under this law.” (PennFuture)
Act 13 eliminates the ability of a Department of Environmental Protection (DEP) field inspector to shut down a drilling operation gone bad. Oddly, this idea that inspectors would be handcuffed in this way created a big scandal when it was first reported as part of the new Corbett Administration’s way of doing business with the gas companies, but now the complete politicization of DEP has become our law, without a whimper in the mainstream press about it.
“Unlike other environmental laws, cease orders under the oil and gas law may only be issued by the secretary of DEP. Under most environmental statutes, DEP inspectors – the persons trained to observe violations of law – have the right to stop unlawful conduct by issuing field orders to the person suspected of violating the law. Under the new oil and gas law, DEP inspectors cannot cease drilling operations – only the secretary of the DEP can take that action.” (PennFuture)
The gas companies will not necessarily have to provide ongoing critical information to DEP as to how much wastewater they are producing and what becomes of it. Only if this information is requested by DEP will it become public record.
“The well operator must keep track of the amount of wastewater generated during drilling and hydraulic fracturing, the company that transported the wastewater off-site, where the waste was taken (whether for processing, re-use, or disposal), the quantity of waste taken, and the disposal method. These records must be made available to the DEP upon request….This means that only those records requested by DEP, on a site by site basis, will be available to the public for review. The same standard applies to the increasing number of facilities that process gas well wastewater for re-use. Unless the agency later requires it by regulation, nothing in the statute requires the companies to submit a comprehensive summary of their records to the agency on a regular basis. Consequently, these records will not be available for public scrutiny and inspection. 3218.3.” (PennFuture)
So do we really think DEP Secretary Michael Krancer, who has in his career provided legal services to the energy industry, is going to task his department with a rigorous collection of wastewater information? The answer is “We don’t really know.” The public is left totally dependent on the good graces of the people in high office like Krancer to ask for and make public the information we need to know to protect the waters of the Commonwealth. Trust us, says DEP. That’s the best you are going to get.
So now DEP has its own version of “Don’t Ask, Don’t Tell” on the books – the less they ask the gas companies about what they do with that toxic wastewater, the less they have to reveal about that to the public.
But what about all those new setbacks, those new environmental protections? “DEP may grant a waiver if an operator shows that a setback requirement would deprive the operator of its rights in oil and gas resources. 3215(a)” states PennFuture. Who do we think is going to win that dispute?
And what about the gas industry now having to reveal all those chemicals they use?
“(T)he bottom line is that certain chemicals used in fracking fluids can be kept secret under certain circumstances…. if a company claims that a chemical or concentration is a Trade Secret or confidential proprietary information, then the company can submit more generic information to the DEP and (chemical disclosure) registry…. Such a claim will prevent the public from getting that information…. The law does not plainly set out a process for interested persons to challenge the company’s claims.”
No sunshine there, it appears. The gas companies have the final say-so on what they reveal about their chemicals.
Then there is this on what Act 13 makes unlawful:
“The law makes it unlawful for any person to….conduct any activity related to drilling contrary to the law or DEP regulations, or in a manner that creates a public nuisance or adversely affects public health, safety, welfare or the environment.” (PennFuture)
This provision has the fingerprints of Senator Joe Scarnati all over it. He has long held an interest in criminalizing dissent and declaring those who stand in the way of gas development “eco-terrorists.” This part of Act 13 is so vague (“any activity”) that people who assemble in front of a well pad to call for it to be shut down could be subject to criminal prosecution.
There is much more in the PennFuture report about how Act 13 is a gas industry lawyer’s dream for limiting their liability and accountability. For example, Senator White’s comparison of the new powers of the PUC to how the ACRE program is set up is inaccurate. Under Act 13 the PUC gets to be “advisor” to the same municipalities for which it is also the “judge” as to whether their zoning law contradicts Act 13. If the PUC “advice” is not taken, then the PUC can cut off the municipality from any impact fee, and they get to keep the reasons for that a secret.
If ever there was an unlucky number for the fate of local democracy in Pennsylvania’s laws, it would be Act 13. We live in an era where corporations can essentially buy the politicians they want (as in $1.6 million going to Gov. Corbett’s campaign for office and almost $300,000 going to Senator Scarnati’s from the gas industry, plus a Super Bowl trip). Senator White, for the $18,000 she got from energy companies, no doubt would argue that such money has no influence on how she thinks. They all say that.
The corporate paymasters of the corporate politicians in Harrisburg have had their way with this Act. Our legislators have turned over to these corporate titans the ability to manipulate the levers of political power out of sight of the people of this state. Why has our state government decided that it needs to abrogate so severely the mechanisms of democracy and local control, just to get some gas out of the shale? What are they afraid of? Who are they serving?
We owe a debt of gratitude to PennFuture for their excellent summary of Act 13 in plain language. Yet Act 13 also stands as a cautionary tale for PennFuture and anyone else that thinks they can negotiate with the gas industry to protect the waters and environment of Pennsylvania. Try that and this industry will have you back on your heels taking blow after blow from them. This law giveth lip service to some new environmental protections for which PennFuture and its consultant John Quigley had lobbied very hard, but then taketh away those protections with waivers and secrecy about what will really be happening. The Act is pretty good evidence of what Dr. Sandra Steingraber meant when she said “To advocate for mitigation is to sanction gas drilling.” http://www.psehealthyenergy.org/data/Steingraber.pdf
Of course PennFuture does sanction gas drilling, so they are being consistent in publishing a piece that they hope will shine a light on yet another thing that is now wrong and needs to be fixed – i.e., the very landmark legislation based on the premise that the drilling for unconventional gas should happen. Too late? Too little?
Act 13 is an outright victory for the “Shale Army” of which Bill Gwodz, VP of gas services for Ziff Energy Group of Calgary, has famously written: “The shale army has arrived. Resistance is futile.” Yet I must take issue with that sort of defeatism. I plan to do that on May 10th at my organic farm in Jefferson County.
Toward Resistance and a Declaration of the Rights of Nature
When we gather at my farm on May 10 (of which I have written elsewhere on this blog) to declare these 50 acres “inviolate” of gas drilling forever, we will perhaps be convening an illegal assembly under Act 13 “contrary to” the new law, and other laws that protect property rights over human rights and the rights of nature. We will take that chance. We will do so to expand upon what the founders of this nation proclaimed in our Declaration of Independence when they referenced “the Laws of Nature and Nature’s God” as entitling them to throw off the oppression of the British Crown.
For Nature, the Good Earth, that we will vow to protect on May 10, the oppressors to be thrown off are the dangerous, profit-hungry energy corporations aided and abetted by paid-for politicians who do their bidding in crafting an unjust law like Act 13. As our nation’s founders discovered in trying to negotiate with the British Crown, there comes a time when negotiation is capitulation. There comes a time when petitioning for redress “in the most humble terms” fails, and when “repeated Petitions” are “answered only by repeated injury.”
That time has arrived for us with the energy companies that despoil our world; and that time is here with political leaders who refuse to lead us out of a fossil fuel era that is warming our planet to the point that species are disappearing by the hundreds annually and many of our own human kind are finding themselves dealing more and more with the calamities of climate change.
Not all my neighbors will agree with me, certainly not those who hold the so-called “gas rights” to gas in the shale a mile below my farm. Our founders who signed the Declaration were sorely grieved by the fact that their warnings to their fellow Americans of “attempts by their legislature to extend an unwarrantable jurisdiction” over them had fallen on deaf ears. I too am grieved. I am grieved that appealing to my neighbors’ “native justice and magnanimity” has not convinced them of what our founders would have called the “usurpations” of the gas companies and their acolytes in Harrisburg who would control their lives without respect to their hard-won democratic protections and institutions of local determination.
So there is no help for that. I love my neighbors, but I must act on May 10, and some others will join me in acting, to declare independence for the land beneath our feet and for all life sustained by this land, so that it shall never again be considered mere private property for human consumption. We will recognize that Nature has rights, too, a part that our founders left out of their Declaration and our nation’s Constitution. We will recall the words of Tom Paine, author of Common Sense, the man known as the propagandist of the American revolution, who wrote in his tract “Agrarian Justice” that “Man did not make the earth, and, though he had a natural right to occupy it, he had no right to locate as his property in perpetuity any part of it; neither did the Creator of the earth open a land-office, from whence the first title-deeds should issue.”
Resistance is not futile. The “shale army” will find that out soon enough, after we have taken more losses at their hands, to be sure, but soon enough. Resistance can be liberating. It is also a little scary, of course. That is why our Declaration of Independence ends on a somber note that appeals “to the Supreme Judge of the world for the rectitude of our intentions” and comes to a close with these words: “And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.”
May 10 will be that for me. My life. My fortune. My sacred honor. Maybe even my liberty. Pledged to Nature and to my fellow human beings who are but part of Nature, God’s Nature as I understand it within my Catholic faith tradition.
I am putting it all into this fight, risking it all without any assurance of victory.
So be it. I am so proud to count as friends all those who will join me on that day as we combine an individual act of resistance with our ongoing organization of a foundation of law based on the Rights of Nature. We need a new paradigm for how we live on this Earth. Please come join me if you can.