Toxic Secrets of Act 13; and why a new Declaration of Independence on May 10

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.”

http://www.butlereagle.com/article/20120424/EDITORIAL02/704249853/-1/Editorial 

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.

 

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About jstephencleghorn

My name is Dr. J. Stephen Cleghorn. I am now a resident of Baltimore, MD. I continue to own a 50-acre certified organic farm in Jefferson County, PA that I operated with my late wife Lucinda between 2005 and 2011 when she passed away from cancer. The farm is now under lease to organic farmers and protected by "The Dr. Lucinda Hart-Gonzalez Conservation Easement” which protects it for organic agriculture and against the threats of industrial development that would violate the Rights of Nature. The blog’s name is taken from the writings of Saint Augustine who believed “Hope” to be the greatest of spiritual gifts. And, says Saint Augustine, Hope has two lovely daughters: Anger and Courage. Anger so that what must not be may not be; courage so that what should be can be. Anger and Courage. Now in late 2016, after the election of Donald Trump as President of the United States, these are the spiritual gifts that must come to the fore if we are to have “Hope” for a loving culture and a sustainable world for future generations. When I first created this blog it was focused on the extreme form of fossil fuel extraction known as “fracking” that was threatening much of the state of Pennsylvania and many other parts of the United States. At the root of that struggle was and is a struggle to halt and reverse climate change. Now the struggle has turned to resisting an incoming Trump Administration that is an existential threat to the climate with its plans to ramp up extraction and use of fossil fuels. This blog will be about having the courage to stand up to the massive global corporations that would ruin our planet and its climate, take their profits and leave the mess to future generations of to clean up. We need to rise up, my friends, and be not afraid.
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5 Responses to Toxic Secrets of Act 13; and why a new Declaration of Independence on May 10

  1. Dear Mr. Cleghorn: First of all, I love organic farming and “thank you for your organic farm”. I feel your pain and frustration because my husband and I have been fighting the good fight from the time we heard about fracking for gas coming to Susquehanna county. We only own 12 acres but have refused to lease our land to these greedy people. Most of our neighbors have signed even though we have presented them with letters explaining the horrors of gas drilling and fracking chemicals that have caused sickness to people and sickness and death to farm animals and wildlife. We were shocked that people cared more for the money than their water, air, environment and health of their families and animals. I too am a Catholic and I have put this huge evil problem in our Lord’s hands because only He can put a stop to it. I pray to Him and will continue to do so and in His own good time He will put a stop to it. My hope is that all will turn to our Lord and pray who hate this industry. I know God hears our prayers and will not turn his back on us because we are doing his will by taking care of His creatures and his land. Good always wins in the end and evil loses.

    • Thank you, Maryann. Yes, I pray a lot on this one, too. It is hard to accept such evil in the world, but at the same time those who do this evil are our brothers and sisters, children of God. So we must both act and pray, ceaselessly, for God to be present in our fight and in our relations to those who must turn away from this destruction of God’s creation. – Stephen

  2. Joseph Keaney says:

    Dear Dr. Cleghorn: Good luck today 10 May from Co. Leitrim, Ireland. Fracking is also proposed for our country, at the moment the other evil of abortion draws close also. Last Saturday 5000 people travelled to Knock, Co. Mayo to pray and attend Mass. I hope our prayers will be answered at this time. Keep up the good work.

  3. I love it whenever people come together and share thoughts.
    Great blog, continue the good work!

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