Unpacking Act 13

June 16, 2012

When it comes to gas development in PA, Act 13 is now the very complicated law of the land. In their assessments of this new legislation, Mr. Rosenfeld and Mr. Henderson represent opposite ends of the spectrum. Personally, on rural land use issues, I tend toward the opinions so beautifully rendered by David Kagan in his recent speech to our New York neighbors, printed on page 21 of this edition of the Guardian.

To some, Act 13 is an environmental justice issue. A family that has been clobbered with a suspected gas-related health issue, or significant property devaluation, may be among them. So too, the minority of us inspired by the work of 20th century naturalists like Aldo Leopold, who believe the gas industry will eventually render the beautiful rural character we love around here into a distant memory—and can point to some places it already has. The question we are asking is, “Why was a more cautionary approach, (such as that now being taken in New York state, Maryland and in the Delaware River Basin), not taken here in the Susquehanna River Basin?”

What’s truly disturbing is the seeming lack of appreciation for the beauty, uniqueness, fragility and value of our environment and the quality of life so many Pennsylvanians treasure. The greater significance of this rapidly diminishing way of life and the environment that makes that lifestyle possible has been ignored by both shale-gas issue dominated administrations, local government and business leaders, large land stewards and not surprisingly, local mainstream media. Much of the PA Wilds, once so championed by its traitor Ed Rendell, have been consigned to dispersed-industrial status without public deliberation.

Perhaps our state government shouldn’t be in the business of sacrificing the integrity of our environment or way of life for all of us to insure the wealth for a few, a temporarily cheap fuel source choice and a business climate tailored to outside interests who saunter in on a red carpet, gobble up all they can, and throw the vast majority of Pennsylvanians a few crumbs while we scramble to learn the ropes of the modern oil and gas industry.

Some may think that we should take Alaska’s lead, and have a high severance tax that benefits all residents—economic gain for all, from judicious and well-regulated shale-gas extraction. Others saw the true value of what we had in our core forest areas, the 100+ years of equity built up from the logging era, as worthy of preservation even at the expense of local rural economies that lag behind the rest of the state. To many, avoiding the diminishing quality of life that sprawl, traffic and large scale industrialization of any type brings should have been paramount in our government’s policies.

It could be worse. We could be in the Ohio River Basin, where the practice of using waterways like a giant storm sewer system for conventional oil and gas operation’s partially treated wastewater continues. The Corbett administration at least effectively ended that practice for shale-gas liquid waste, one that the Rendell crew foisted on us.

Is Act 13 “draconian”, i.e. exceedingly rigorous and harsh? If you are a well operator, certainly not. But, if you are a resident of one of the dozens of municipalities in the drilling bull’s-eye that had the foresight to be precautionary in terms of potential health issues, or protective of a way of life and property values, and you enacted specific zoning ordinances regarding gas development—yes, you may see Act 13 as draconian. As for as our current leadership’s perceived need to effectively override local determination, as Mr. Rosenfeld attempted to explain, it is not difficult to grasp.

In reality, about half of the municipalities in shale drilling areas have no zoning whatsoever. So, actually, there will be improved outcomes for many living in a good deal of the land mass of the commonwealth due to setback increases under this legislation. But a municipality with gas development ordinances can no longer assign gas activity to just one of its zoning districts, they must be allowed in all zones. At least under the old laws and court interpretation, there was the possibility of local citizens rising up to say: “We know we have to allow it somewhere, but we are going to do it differently in our community.”

It all comes down to your perspective. Mr. Price and Mr. Shields were quoted by Mr. Rosenfeld, and described as “ill-informed commentators” by Mr. Henderson. In truth, both Price and Shields are very well-informed. They also have an axe to grind with corporate “personhood.” Many of us agree with their assessments, but it’s not surprising that tackling that particular issue and how it relates to the gas industry is absent from the Governor’s and Mr. Henderson’s to-do lists.  

As for the facts, as opposed to the opinions Mr. Henderson relays, he is technically correct. But let’s examine a few of the details:

Increased setbacks for unconventional shale-gas wells

From a building: 500’. Up from 200’. A big percentage increase, but is it enough? It’s also worth noting that DEP is required to grant variances requested from this setback if certain conditions are met.

From Streams: 300’ from a well or 100’ from the edge of the well-site. Up from 100’ from a well. Does that seem like enough protection? What about an intermittent stream? There is no setback requirements for these. They may not  look like streams when they are dry on the surface, but they’re streams nonetheless. And again, the DEP is required to waive them if a plan is submitted that meet certain criteria.

Well bonding amounts. I can’t find Mr. Henderson’s $850,000 figure in Act 13, but if he says it’s in there, it must be. A potential problem: what may happen in the future? Eventually, large corporations may choose to sell wells when production drops to low levels. Smaller operators may still turn a profit for while, and then fold up and leave with only an inadequate bond to contribute to plugging costs, and no assets available to recover for the rest. Are future taxpayers adequately protected? What about the cemetery-like perpetual care plugged wells are apt to need over the long-term?

Increased notifications. What are the options for those receiving the notices?

More inspections. Yes, but enough? Why not raise fees to cover the cost of additional inspections, which would provide more jobs that specifically educated Pennsylvanians want and are qualified to perform?

Civil penalties. Have they been increased enough to serve as an effective deterrent?

Rebuttable presumption distance. Where did the new 2,000’ feet (up from 1,000’) figure come from? Why not the 2500’ or so feet that data shows accidents and incidents are most likely to occur within? Where did any of these setbacks come from, what was the reasoning behind them?

The medical issue. Bottom line, will someone die in an emergency situation due to limitations imposed by Act 13? Probably not. Are there funds allocated in the Act to establish base line data and study possible health impacts due to the development as recommended by the Governor’s own appointed shale-gas commission? No.

No matter what the various interpretations of Act 13, voters will indicate their own judgement in the 2014 elections. By then, enough time will have gone by to assess its impact on the ground and on people’s lives. Surely a clear choice as to which direction Pennsylvania wants to head to optimize gas development will be available.

We all strive for safety, prosperity, comfort, long life, and dullness. The deer strives with his supple legs, the cowman with trap and poison, the statesman with pen, the most of us with machines, votes, and dollars, but it all comes to the same thing: peace in our time. A measure of success in this is all well enough, and perhaps is a requisite to objective thinking, but too much safety seems to yield only danger in the long run. Perhaps this is behind Thoreau’s dictum: In wildness is the salvation of the world. Perhaps this is the hidden meaning in the howl of the wolf, long known among mountains, but seldom perceived among men. – Aldo Leopold, “Thinking Like a Mountain”

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