by Chris Potter
After the state Supreme Court tossed out the state's fracking law, Act 13, in resounding fashion last month, it was no surprise that Republicans and gas-industry execs struck a sour note. What was surprising is that they insisted the ruling would be bad for the environment -- even while it was being loudly trumpeted by environmental groups.
Republican leaders in the legislature lamented that "There were dozens of strong environmental protections included in Act 13 and due to the Court's jarring decision it seems that the Court even invalidated some of them." A House GOP spokesman mixed a little Rachel Carson into the usual GOP complaint about judicial activism, arguing that "[i]n their zeal to usurp legislative power," the justices "struck down crucual [sic] environmental protections." Meanwhile Dave Spigelmyer, the head of the Marcellus Shale Coalition, penned letters for state newspapers warning that the ruling "unravels some of the environmental protections created by the bipartisan regulatory modernization law."
But while it's not a spurious concern, at least one environmental group isn't buying it.
Much of the drillers' argument turns on a legal concept known as "severability" -- the idea that if one provision of a law is invalid, so must be any other provisions which depend on it.
In this case, the Supreme Court set aside provisions of Act 13 which, among other things, established "setback" requirements to keep wellpads at least 2,500 feet away from waterways. The court tossed out the setback requirements because they were included in a provision that also gave the Department of Environmental Protection too much freedom to waive such requirements. That may sound a little crazy: If the DEP had too much freedom to waive the rules, shouldn't you keep the rules themselves in place? But in the court's reasoning, the legislature established the setbacks with the understanding that the DEP would have some flexibility in applying them. So if you got rid of the flexibility, the rule itself had to go as well.
As it stands now, the setbacks spelled out in Act 13 -- which offered more protection than previously spelled out in the law -- are inoperative. Which would seem like a bad thing, right?
Well, maybe not. In a blog post earlier this afternoon, the environmental group PennFuture argues, essentially, that our waterways are no worse off than they were before the court ruling.
Titled "The Act 13 decision: A setback for setbacks?," the post argues that "[i]t would be inappropriate, and violate the fundamental basis of [the court's] opinion, for the government to conclude that it lacked authority to protect waters of the Commonwealth." After all, the whole point of Chief Justice Ron Castille's ruling was that government officials have a constitutional obligation to protect state waterways. PennFuture staff attorney Mark Szybist, who authored the post, notes that the court didn't say the setback requirements themselves were unconstitutional -- just that they were tied to a rule that was. What's more, he argues, previously existing laws, like the Oil and Gas law and the Clean Streams law, still give the DEP the right to impose setback requirements on drillers.
"DEP still has the obligation to enforce other laws," George Jugovic Jr., PennFuture's chief council, told me by phone. "And it still has the authority to impose the [setback] requirement … To use the court's opinion as a basis for not providing protections for streams and wetlands would be ludicrous."
What's changed as a result of the ruling, he says, is that now ,the DEP "would have to justify [the setback] on a case-by-case basis," rather than applying it as a blanket rule.
Jugovic allows that an ad-hoc process is more cumbersome: "When you have a statute that sets a black-and-white line -- which is what drillers are looking for -- it's more efficient for the government." In theory, Jugovic says, the DEP could promulgate a hard-and-fast setback regulation itself, instead of doing it through a series of individual permit requests. But issuing such rules -- a process which requires public comment periods and the like -- can be cumbersome, he says. (Would it be faster than having the legislature redraw the law from scratch? "Maybe not," he said with a rueful chuckle.)
But in any case, the facts on the ground may not actually change much even if DEP does determine setbacks on a well-by-well basis. "People don't realize how frequently and automatically DEP grants variances," says Jugovic, himself a former agency staffer. "I worked there, and it happened on a regular basis. That's one of the things that strikes me as silly about [gas companies'] argument: If you have a standard that can be waived at the drop of a hat, how much protection is there really to begin with?"
And that, Jugovic says, is why PennFuture is celebrating the court's opinion -- despite the concern-trolling from the other side.
On balance, he says, the court's Act 13 ruling was a big win for environmentalists overall. And even the impact of setting aside of setback requirements ought to be muted. Now as before, the amount of protection really depends on the DEP's zeal for enforcement, and the willingness of drillers to honor those environmental values their advertising professes to be so concerned about. "I think that in the vast majority of cases, a well location's is driven by productivity." Wells are typically set hundreds of acres apart, he notes, "And in the middle of 600 to 800 acres, you can usually avoid the streams if you want to."