By population, Pennsylvania is the six largest state in the U.S.A. By area, it actually ranks only thirty-third. However, it contains some of the largest known deposits of methane and coal in the world, as well as significant amounts of oil – indeed, the U.S. oil industry began in Titusville, Pennsylvania. There is thus a significant prior history of mineral extraction in Pennsylvania and the current state of regulation respecting methane extraction in Pennsylvania is not properly understood without making one’s self at least superficially aware of that history as it respects methane. I will first describe briefly the current state of methane extraction in Pennsylvania, the process for issuing permits to authorize it and then consider the history of other methane generating activities that also have occurred in Pennsylvania.

Fracking

Fracking (or “hydrofracking”) is the deliberate inducing of an underground detonation in a methane bearing formation from which methane cannot otherwise be extracted. It consists in the high-pressure injection of massive amounts of water, sand and undisclosed chemicals into production wells. The effect of the injection is to shatter the methane bearing rock strata, which releases the methane for commercial recovery through pumping the same well. The pumping liquid, highly toxic, is returned to the surface as part of the recovery process. While Pennsylvania has highly articulated and longstanding programs for regulating both coal mining and landfilling municipal waste, which embrace removal and disposition of methane associated with those activities, the Pennsylvania program for regulating methane extraction, itself quite old, was never designed to consider fracking. That program, as you can see by examining the permit application form of the Pennsylvania Department of Environmental Resources (“DEP”) [ www.elibrary.dep.state.pa.us/dsweb/Get/Document-48256/550-2100-002.pdf ], involves only notifying the Department of the location of the well and providing assurances on the amount of local water that will be consumed in the proposed fracking operation. This latter requirement exists only because certain other governmental agencies, such as the Delaware River Basin Commission and the Susquehanna River Basin Commission, are required by law to safeguard their associated river basins from excessive extractions of surface and groundwater. There is, for example, no requirement that chemicals used in a particular fracking operation be disclosed in the permit and in fact the fracking operator need not disclose these chemicals to anyone under federal law, which prohibits such disclosure as a “trade secret.” Neither is there any requirement that fracking operators assess or protect groundwater in the vicinity of their operations, despite the fact that common sense consideration of the impact of an underground detonation, coupled with Pennsylvania’s long historical experience with coal mine and quarry blasting, inevitably suggests that there will be some significant deleterious impact on groundwater near such detonations or even considerably distant from them.

What is the actual, on the ground experience with fracking in Pennsylvania? From the standpoint of the methane extraction industry, production has been good, huge pipeline projects are being eased through a complacent regulatory process that is noticeably lighter in touch than that experienced by their business cousins in the coal mining and landfill industries.

From the standpoint of landowners, householders or well users, the experience has been radically different. It takes little imagination and scant sympathy to recognize that exploding toilets or flammable tap water were not part of ordinary life in Pennsylvania prior to fracking, yet these are some of the assaults that have occurred. Free methane in groundwater is not and never has been an ordinary occurrence in Pennsylvania.  While a DEP sympathetic to the fracking industry pushes its half measures through Pennsylvania’s cumbersome legal process, landowners worry deeply about contamination of their groundwater.  Of course, since all of the fracking chemicals are exempt from disclosure, no one really has any idea what the extent of the contamination might actually be. I will not try to list individual instances of damage likely occurring as a result of fracking in Pennsylvania, but instead refer the interested reader to the website maintained by Robert Myers, which is comprehensive if not indeed currently definitive on negative occurrences in Pennsylvania which are reasonably attributable to fracking. www.lhup.edu/rmyers3/marcellus.htm  Most recently, and most astonishingly, the DEP, only twenty-four hours after the errant driller made his request, allowed the driller to stop potable water delivery to a family whose water well was much earlier found to have been contaminated by the driller’s activities. The evident theory of DEP is that methane in the family’s well has reached “acceptable” levels. There was of course no analysis of what fracking chemicals – protected from disclosure even in these grievous circumstances – are still present in the family’s household well. See citizensvoice.com/news/dep-cabot-ok-to-stop-dimock-water-deliveries-1.1220633#axzz1bJy9kQqe

What’s Not Reached Under The Current Pennsylvania Program for “Regulating” Fracking?

Pennsylvania has one of the most evolved systems of environmental law in the U.S. Yet none of it is regularly, effectively or thoroughly applied to fracking. The Pennsylvania Clean Streams Law, 35 P.S. 691.1 et seq., is a comprehensive statute that regulates the discharge of all forms of industrial waste to ground and surface waters within Pennsylvania, yet clearly the prohibition on discharge of industrial waste to such waters is not enforced as to fracking activities. Likewise, the Pennsylvania Solid Waste Management Act, 35 P.S. 6018. 101 et seq., is clearly applicable to the sort of wastes generated by fracking, but it seems simply not to occur to Pennsylvania regulators actually to engage in such an undertaking. Both those statutes provide for stringent civil and criminal penalties for violation of permit terms and for discharges in violation of the statutes. They are still regularly applied, however, to other regulated entities, such as coal mining operations, landfilling of trash, steel fabrication, sewage treatment and a variety of other private and public activities in Pennsylvania – just not to methane drilling and extraction activities.

The False Promise of Severance Taxes

There is repeated talk of imposing a severance tax on methane extraction in Pennsylvania. Such taxes are generally opposed by the industry, although the experience with severance taxes on coal in other U.S. coal mining states has been that such taxes actually lead to increased coal extraction since the states earn substantial revenue from granting, at times indiscriminately, permits for more and more coal mining. (Editor’s Note)  In addition, with nonrenewable geologic substances such as coal and methane, when the extraction ends – when the coal’s all taken or the methane exhausted – revenues stop abruptly and governments are without the financial means to function. This includes any governmental ability to abate damage left behind by coal mine operations, which has been substantial and largely unaddressed. Pennsylvania has some 50,000 miles of streams. Of that total, some three thousand miles are contaminated irretrievably by coal mining discharges.

These two drawbacks – pressure to issue dangerous permits and ultimate loss of a revenue source on which government becomes dependent and with no ability to replace it – argue strongly against such a tax.

Fracking in Pennsylvania State Parks

Pennsylvania has one of the oldest and most extensive state park systems in the U.S.A. Most of the land was acquired at sales of land for local taxes that had not been paid, typically timber operations that were no longer profitable. What Pennsylvania acquired in these purchases was usually just the surface estate, but not the still potentially lucrative mineral rights, which include the right to extract methane. Thus many of Pennsylvania’s 117 pristine state parks, all heavily used by the public, are now subject to methane extraction operations that cannot be stopped absent a legislative prohibition on methane extraction activities in such areas. In the vast Allegheny National Forest, a U.S. preserve within Pennsylvania, a U.S. court has recently authorized drilling in the forest, also a heavily used tract of publicly accessible land used for camping, hiking, hunting and fishing. Ironically, drilling may also take place on the grounds of Pennsylvania’s prison system, including Farview State Hospital for the Criminally Insane in Waymart, Pennsylvania. See citizensvoice.com/news/state-prisons-eyed-for-drilling-1.1220635#axzz1bLfoHU7r

Coalbed and Landfill Methane

Coal mining has been part of Pennsylvania life at least since the early 1800s. The amount of unaddressed historical damage to land and water from coal mining is astonishing, although at least since the early 1970s, the grosser abuses of coal mining have been significantly curbed under a panoply of specialized statutes aimed at damage from coal mining. Among those statutes are Pennsylvania’s laws on deep mine safety, which have required for many, many years that methane (often encountered underground by mining laborers) be vented from the mines for the safety of the workers. More recently, as disputes over ownership of such methane have been resolved, efforts to recover it commercially have increased. All aspects of the coal and methane extraction operations remain subject to strict regulations as to effects on groundwater quality and quantity (including household wells), surface water quality and quantity, air quality, worker safety and public safety. None of these considerations apply with respect to fracking.

Likewise, landfilling of municipal waste in Pennsylvania is also stringently regulated and it also produces substantial amounts of methane for commercial recovery. The same considerations as for coal mining and associated methane extraction also apply to Pennsylvania regulation of landfilling and associated methane extraction – protection is required for groundwater quality and quantity (including household wells), surface water quality and quantity, air quality, worker safety and public safety. Again, none of these considerations are required by DEP with respect to fracking.

Areas Unsuitable For Mining

Under the Federal Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 1201 et seq., the federal government prohibits coal mining in certain areas, e.g., within one hundred feet of an occupied dwelling. It also provides a discretionary governmental process whereby an individual may seek to have certain tracts of land declared unsuitable for coal mining based on predictable or likely deleterious environmental effects or to protect the public health safety and welfare from mining activities. Pennsylvania has long since adopted a similar set of prohibitions and a similar administrative process for coal mining in Pennsylvania, yet it has no such prohibitions or processes for fracking, despite the damage drilling operations have already caused in Pennsylvania.

Conclusion

Pennsylvania’s experience with methane has been largely negative, fraught with mishaps and environmental damage. Neither DEP nor the Pennsylvania General Assembly demonstrate any meaningful inclination to regulate methane drillers as they do methane extraction accompanying coal mining and landfilling of municipal waste, so it is most likely that methane extraction will proceed with permanently unabated and avoidable environmental harm and deleterious effects on the public health, safety and welfare. Given Pennsylvania’s extensive history of successful regulation of these other two methane-producing industries, this omission seems as intentional as it is inexcusable. Any jurisdiction considering allowing fracking should look closely at the largely negative Pennsylvania experience and see if similar mistakes can be avoided in their own geographic province.

Jim Morris is an environmentalist who formerly worked for the Pennsylvania environmental protection agency.

Editor’s Note: The President’s Commission investigating the BP oil spill disaster in the Gulf of Mexico pointed out a similar outcome to severance taxes.  The federal agency responsible for assuring that oil drilling did not harm the environment was also responsible for raising revenues for the government from oil drilling.  In the 1980s, under President Reagan and Secretary of the Interior James Watts there was an explosive expansion of oil drilling, their version of “Drill, baby, drill.”  As a result, royalties and revenues from oil and gas resources constituted the second largest source of revenues for the US.  Not surprisingly, regulatory oversight, intended to protect the natural resource being exploited, disappeared so that between 1990 and 2009 unannounced inspections in the Gulf of Mexico by the federal agency fell from almost 3,000 a year to a few hundred a year.