Monday, May 14, 2018

EHB Upholds DEP Issuance Of Unconventional Gas Well Permits Under Environmental Rights Amendment Challenge

On May 11, the Environmental Hearing Board issued an opinion upholding the issuance of unconventional natural gas well permits in Butler County because the appellants failed to demonstrate DEP’s decision violated the Department’s responsibilities under the Environmental Rights Amendment and other provisions of law.
The case involved a challenge to six R.E. Gas Development LLC "Rex" unconventional gas well permits “Geyer Wells” in Middlesex Township, Butler County by the Delaware RiverKeeper Network, Clean Air Council and several individuals.
The EHB said the appellants did not prove their case in several lines of arguments made, among others, for why DEP should have denied the permits--
-- Could have caused pollution under the state Clean Streams Law;
-- Created a public nuisance or would adversely affect public health, safety, welfare or the environment;
-- Noise from the site would create a public nuisance;
-- Air emissions would adversely affect public health; and
-- Potential adverse health impacts from chemicals used at the site.
The Environmental Rights Amendment argument was raised in light of the public trustee requirements of the PA Supreme Court’s June 20 decision involving a PA Environmental Defense Foundation challenge to diversion of funding from DCNR’s Oil and Gas Fund.
The EHB noted it has addressed the duties and responsibilities of DEP under the June 20 public trustee decision in two previous cases before the Board-- Center for Coalfield Justice v. DEP, 2017 EHB 799 “CCJ” and Friends of Lackawanna v. DEP and Keystone Sanitary Landfill, Inc., 2017 EHB 1123-- where the Board established a two part test--
“We first must determine whether the Department has considered the environmental effects of its action and whether the Department correctly determined that its action will not result in the unreasonable degradation, diminution, depletion or deterioration of the environment.
“Next, we must determine whether the Department has satisfied its trustee duties by acting with prudence, loyalty and impartiality with respect to the beneficiaries of the natural resources impacted by the Department decision.”
In addressing the first point, the Board said, the “Delaware RiverKeeper argues that the process in this case fell well short of the Department process [of providing a lengthy and extensive review of information on the environmental effects of the proposed activity] in CCJ that the Board found met the constitutional standard.
The Board responded by saying, “Our discussion in CCJ was not intended to suggest that there was some minimum requirement under Article 1, Section 27 [Environmental Rights Amendment] governing the amount of review time that must be undertaken by the Department and the amount of information that must be considered by the Department.
“The Department’s consideration of the environmental effect of its permitting actions is, we believe, intended to be a flexible standard based on the nature of the activity and the potential impact of the activity on the environmental interests protected under Article 1, Section 27.
“We think this type of approach is consistent with the statement of the Supreme Court plurality in Robinson Township that the first right set forth in Article 1, Section 27 requires “each branch of the government to consider in advance of proceeding the environmental effect of any proposed action on the constitutionally protected features.”
Specifically, the EHB pointed to the fact, that “In the permit application, Rex provided information about the surface locations, proposed drilling depths, bottom hole locations, and proximity of the proposed Geyer Wells to features in the environment such as water bodies, wetlands, landfills, buildings, floodplains and designated public resources (publicly owned parks, game land, wildlife areas, National/State scenic rivers, historical and archaeological sites, etc.).”
The Board continued, “The fact that the consideration did not involve a full blown risk assessment and was not as extensive as Delaware Riverkeeper believes was necessary does not, in our opinion, violate the requirements of Article 1, Section 27.
“We think that viewing the totality of what was considered, in conjunction with the existing laws and regulations that applied to the activity, as well as the nature and scope of the likely impacts, the review by the Department was sufficient to satisfy the constitutional requirement that the Department consider in advance the environmental effects of its action.”
On the second part of its test, the Board said, “Delaware Riverkeeper argues that developments at the Geyer Wells Site will result in impacts such as water contamination, fire and explosion risks and air emissions that will violate Article 1, Section 27 [Environmental Rights Amendment].”
After briefly reviewing the arguments made by the Delaware RiverKeeper, the EHB concluded-- “Delaware Riverkeeper has not convinced us that the Department’s decision to approve the Geyer Wells Permits and Renewal Permits was likely to cause or did in fact cause unreasonable environmental impacts and/or was contrary to the right of citizens to clean air and pure water, and to the preservation of natural, scenic, historic or esthetic values of the environment.”
In addition, the Board said, “We view the Delaware RiverKeeper’s arguments concerning the potential fire and explosion risk to people near the Geyer Well Site similar to the concern regarding groundwater contamination. The risks are speculative and there was no evidence that any substantial fires or explosions occurred during Rex’s activities at the Geyer Well Site.”
The EHB concluded by saying, “Ultimately, the Department’s responsibility as trustee is to conserve and maintain the public natural resources.
“Delaware Riverkeeper argued that the Department failed to meet this basic responsibility because in permitting the Geyer Wells, it allowed the air and groundwater that people depend on for health and daily life to be degraded.
“Our understanding of the trustee responsibility does not require the Department to deny permits to any and all activity that will negatively impact the public natural resources and/or the people who use those resources.
“To hold otherwise would essentially prevent any permitting activity since it is nigh impossible to have development without some environmental impact.
“A plurality of the Pennsylvania Supreme Court recognized as much in Robinson Township stating “the trust’s express directions to conserve and maintain public natural resources do not require a freeze of the existing public natural resource stock.”
“Further the Board has noted in prior cases, that environmental permitting contemplates some amount of environmental impact, “whether it be a discharge to waters of the Commonwealth, or the surface and subsurface disturbances associated with oil and gas development.”
“In this case, we find that Delaware Riverkeeper has not proven that the Department’s permitting decision allowed unreasonable degradation to the environment contrary to its constitutional responsibilities.
“At its most fundamental, Delaware RiverKeeper’s concerns in this case reflect its general disagreement with the current policy approach in Pennsylvania that permits the drilling and completion of unconventional natural gas wells.
“We, however, are tasked with looking at a particular decision of the Department and in this case, we find that the evidence presented by Delaware Riverkeeper did not demonstrate by a preponderance of that evidence that the Department’s decision to issue the Geyer Wells Permits or the Renewal Permits was unreasonable and/or in violation of either the Commonwealth’s laws or the Pennsylvania Constitution.”
Click Here for a copy of the opinion.  EHB Docket No. 2014-142-B.
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