A constitutional weapon:
environmental rights reimagined in Pennsylvania

Residents hold signs asking Potter Township supervisors to deny an application by Shell Chemical Co. to build a cracker plant. (Anya Litvak/Post-Gazette)

Recent state Supreme Court decisions have people testing the boundaries of a 1970s state Constitutional amendment

There is no room for big ideas — existential ideas — at a water obstruction permit hearing.

But they come anyway, discussions in search of a forum.

DEP officials listen to residents’ comments at an April 5 hearing on the Shell Falcon pipeline project. (Anya Litvak/Post-Gazette)

“I’m here as a resident of Planet Earth,” Susan Hoppe, a Pittsburgh-based internist, testified at a recent Department of Environmental Protection hearing on Shell Pipeline Co.’s proposed ethane pipeline.

That’s relevant, she said, because the ethane that will flow through the pipeline will be used to make plastic at Shell’s petrochemical complex in Potter Township. And plastic pollutes the oceans. To supply the pipeline, more fossil fuel will be extracted, and fossil fuels are a major driver of climate change. So that, too, is relevant in this discussion of whether Shell should be granted an earth disturbance and water encroachment permit, she said.

As two DEP officials sat silently for hours over the course of three hearings earlier this month, speaker after speaker urged them to look more broadly at the issue and gave them the cover to do so: Pennsylvania’s environmental rights amendment, Article 1, Section 27.

Gail Murray began her testimony by taping the text of the amendment to the podium.

It read: “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic, and aesthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.”

Over the past year, the amendment has been trotted out at local zoning board meetings, in lawsuits, and at regulatory reviews.

''The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic, and aesthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.''

Article 1, Section 27

John Walliser, senior vice president of legal and government affairs with the nonprofit Pennsylvania Environmental Council, said he has been to DEP advisory committee meetings at which an idea is kicked around, then runs into a regulatory road block and someone says, “Well, you know, you always have Article 1, Section 27.”

The DEP has heard enough such arguments to launch a series of roundtables to ask environmental advocates and industry representatives “what these sectors expect and want to see from the DEP related to the environmental rights amendment,” said spokesperson Neil Shader. More such meetings, hosted by the chief counsel’s office, are on tap for later this year.

So far, there’s no shift in policy, said its secretary, Patrick McDonnell. “I think everybody acknowledges that will end up settling out on a case by case over time,” he said.

When big ideas like climate change creep into permit hearings, Mr. McDonnell said, they likely aren’t something that regulators can act on.

“For pipelines, the thing that you’re permitting is a construction activity and the impact of that activity on wetlands, streams,” he said. “We don’t get to regulate what is in the pipe.”

Matt Mehalik would disagree.

“It’s actually their responsibility to think more widely and to consider … what it means to be entrusted with that resource,” Mr. Mehalik, executive director of the Breathe Project, said.

In the coming months, when the DEP releases its responses to the Shell pipeline hearing comments, it will have to face the question head-on.

If Shell’s pipeline permit is granted, Annie Regan, a program manager with environmental nonprofit PennFuture, has asked the DEP to “specifically address how this complies with Article 1, Section 27 of the Pennsylvania Constitution.”

A weapon for citizens

How the amendment came about and why it has surfaced as the anthem of a movement against oil and gas development in Pennsylvania is a story with decades of dead air.

Ratified in 1971, the constitutional amendment breezed through the Pennsylvania Legislature and received the vast majority of citizens’ votes.

It was a time of environmental awakening — flames on the polluted Cuyahoga River in Ohio danced on the evening news; millions of people across the country showed up for the first Earth Day in 1970. The federal Environmental Protection Agency and the Pennsylvania Department of Environmental Resources were founded that same year.

A junior state representative from Central Pennsylvania, Franklin Kury, wrote the environmental rights amendment  — intending it to be concise, accessible, and as weighty as the right to free speech or equal protection.

Robert Broughton, an associate professor of law at Duquesne University who testified about the amendment when it was being debated, told the Legislature that he hoped it would “give citizens a weapon which may be used in the courts, in litigation, to protect and enhance the quality of our environment.”

Monaca-area residents listen April 3 during a DEP hearing on the Shell Falcon Pipeline that will travel through Beaver County. (Andrew Rush/Post-Gazette)

But just a few years after it passed and was used to challenge a local street widening project, a court decision knocked out its teeth, according to John Dernbach, a professor at the Widener University Commonwealth Law School in Harrisburg who wrote the legislative history of the amendment.

So it remained largely a platitude until a 2013 Pennsylvania Supreme Court decision breathed new life into the law.

In striking down portions of Act 13 — Pennsylvania’s oil and gas overhaul that restricted local control over Marcellus Shale development — the court relied in part on the environmental rights amendment.

Last year, the majority of the state Supreme Court, in a case about the state’s use of oil and gas royalties, declared, “The Commonwealth has a duty to prohibit the degradation, diminution, and depletion of our public natural resources, whether these harms might result from direct state action or from the actions of private parties.”

That decision launched a million legal questions, with attorneys wondering what this means for property rights and business contracts, and environmental advocates asking how broad they can go.

Environmental master plan

Lisa Graves-Marcucci believes someone, somewhere has a plan that lays out what the ultimate industrial sprawl of the oil and gas industry in Pennsylvania will look like. But that’s not how wells or compressor stations or pipelines become permitted.

“What I’m looking for is a slower, more thoughtful review process that analyzes all of these things, not just from the engineering standpoint but with all of these [environmental] rights in mind.”

It would likely come as a surprise — even to many DEP officials — that Pennsylvania actually has an environmental master plan, which was developed after the passage of the environmental rights amendment.

The plan took more than a decade to put together, in part because it sought community input from the beginning, recalled Rick Carlson, who was assistant program manager for the Bureau of Environmental Master Planning in the early 1970s. It was often talked about as the state’s environmental guide for the next 50 years.

Range Resources’ Baumel Well pad, South Strabane Township, Washington County. (Rebecca Droke/Post-Gazette)

Newspaper articles advertised half a dozen public hearings. In 1973, Mr. Carlson told a UPI reporter how he envisioned the plan affecting decisions such as granting a road permit for a new highway.

“You have to consider not only what is the impact of the highway route, but also are you going to spawn different kinds of industries or development and what is the area’s environment best suited for,” Mr. Carlson was quoted as saying.

Substitute “pipeline” for “highway” and the argument matches what environmental groups and residents speaking against oil and gas development want.

“Why weren’t people in this region asked if we wanted to build our economy around fracking, gas and plastics instead of clean energy,” demanded Pittsburgh resident Mrea Csorba at one of the Shell pipeline hearings this month.

Last year, a group of activists calling themselves Re-Imagine Beaver County held what is known in planning circles as a visioning meeting. They put up a map of the county and invited people to populate it with idea sticky notes. The Beaver County they envisioned includes three hemp farms, a food scraps processing plant, art co-ops, solar roofs, a river taxi and a commuter train.

Aggregation

Recently, Mr. Carlson, who is retired and lives near Harrisburg, said he doesn’t know if the environmental master plan had the lasting impact it strove for. When he left the Department of Conservation and Natural Resources in 2007, the agency was just starting to deal with the potential impact of having leased thousands of acres of state forest lands for shale drilling, he said.

DCNR was surprised by how lucrative the leases had been and was looking at future leasing with the goal of protecting the most sensitive parts of the forest, he said.

“We didn’t even look at the potential impact on the forest of compressor stations, roads, pipeline right-of-ways,” he said. And no one considered what a full build out of the state’s leasing program would mean outside the woods — how many pipelines it would take to move that gas to a port in Philadelphia, for example.

Attemps to aggregate the impact of this industry from a regulatory standpoint have been awkward and controversial.

The DEP — forced by the EPA to tackle the issue of how separate but related oil and gas facilities should be evaluated for air permits — decided it can pool the emissions of, for example, two compressor stations within a quarter-mile of each other and owned by the same company. Combining their emissions might push them into a category with more stringent pollution control requirements.

But what if the compressor stations are owned by different companies?

In comments to the DEP last year about its general permit for compressor stations and natural gas processing plants, Ms. Marcucci, who works as a community outreach coordinator at the Environmental Integrity Project in Pennsylvania, declared: “The DEP does have the discretion to deny any of these permits in order to protect public health and welfare, but has not done so.”

In the footnote to that statement, she cited the environmental rights amendment.

Mr. Dernbach cautioned that many such arguments might go nowhere.

A local resident stands outsideh Central Valley High School, Monaca, after an April 3 DEP hearing on the Shell Falcon Pipeline. (Andrew Rush/Post-Gazette)

“You can’t just invoke the amendment and expect to succeed,” he said. “They have to demonstrate with evidence and information and analysis that DEP is ignoring something that they should be considering or failing to protect something they should be protecting.”

DEP Secretary Mr. McDonnell suggested that citizens submit comments for the agency’s third iteration of the Pennsylvania Climate Change Action plan, due out later this year.

The environmental master plan, meanwhile, remains on the books, but it’s not as if the DEP looks to it for guidance during the course of its business, DEP spokesman Neil Shader said.

Mr. Dernbach said the time might be right for a comprehensive look. If it’s the Commonwealth’s job to protect public natural resources, he argued, it should know what they are and what threatens them.

“I think you can make an argument that in light of the passage of 45 years, and the revitalization of Article 1, Section 27, it might be a good idea to revisit the environmental master plan and see what we might be missing.”

Federal regulators wonder if they should consider the climate in pipeline decisions, too

In this Oct. 10, 2016, file photo, law enforcement officers, left, drag a person from a protest against the Dakota Access pipeline, near the town of St. Anthony in rural Morton County, N.D. (Tom Stromme/The Bismarck Tribune via AP, File)

Pennsylvania pipeline regulators aren’t the only ones being asked to think regionally or even globally about the impacts of their decisions.

On April 19, the Federal Energy Regulatory Commission, which regulates the interstate transmission of energy, said it was reconsidering how it evaluates proposed pipeline projects. It invited comments to a series of questions, including:

  • Are there any environmental impacts that the commission does not currently consider in its cumulative impact analysis that could be captured with a broader regional evaluation?
  • Should the FERC consider calculating the potential greenhouse gas emissions from drilling natural gas wells that would supply the pipeline?
  • Should it do the same for the manufacturing or power plants that would use the pipeline gas?
  • Is it appropriate to use the “social cost of carbon tool,” a formula used by the Environmental Protection Agency to assign a dollar value to the health and environmental impact of greenhouse gas emissions?

The FERC requires each project to have an environmental impact statement that may consider wholesale impacts, including how it might contribute to climate change, although the guidance on how to do that and the application of that has been inconsistent, the commission admitted.

FERC request for comment on pipeline certificate evaluation.

In February 2017, outgoing FERC Commissioner Norman Bay wrote that the commission should look beyond the pipeline -— at the wells that supply it and the plants that will use the product on the other end. He was specifically referring to the Marcellus and Utica shales, whose prolific production and low regional prices have spawned a crush of new pipeline projects.

For an interstate pipeline to be built, it first needs a certificate of public convenience and necessity from the commission. That’s a determination that the project is needed and is in the public’s best interest when weighed against potential impacts.

A FERC certificate also carries a big stick — the right for the pipeline company to invoke eminent domain to lay a line across properties where landowners either don’t want it or haven’t been able to negotiate a price to grant permission.

In its recent notice, the FERC also asked for feedback on property rights issues.

There are a number of things the FERC can consider when evaluating need, but in practice it relies almost exclusively on whether there are customers that have pledged to use it.

In recent years, the customers, especially in Appalachia, have actually been the natural gas drillers trying to get their product to a more lucrative market.

Is there a need for two pipelines serving the same region, the FERC asked EQT when it proposed to run the Mountain Valley Pipeline through West Virginia and Virginia, an area that could also be served by the Atlantic Coast Pipeline.

Federal Energy Regulatory Commissioner Robert F. Powelson

“We feel there is,” said EQT’s president of midstream Jerry Ashcroft told a crowd at Hart Energy’s Marcellus-Utica Midstream conference in Pittsburgh in January. “We feel the Marcellus will be not only a regional supply hub but a national and eventually an international supply hub.”

This dynamic, as the FERC noted in its invitation for comments, has also pushed it to think beyond the pipeline.

Increasingly, people opposing pipelines on environmental grounds and those arguing against the taking of private property by eminent domain note that the eventual beneficiaries of the gas will not be the people paying the price in impacts.

The oil and gas industry was aware that the commission is mulling these issues and questioned FERC commissioner and former Pennsylvania Public Utility Commissioner Robert Powelson during that January midstream conference.

Mr. Powelson, who referred to natural gas as a power for peace in the world, tried to quiet their fears.

“At the end of the day, I want to give everybody peace of mind that you’re not going to get these tectonic shifts in policy,” he said.

“Gas is fueling a clean generation resource for this country,” he noted, ticking off improvements in greenhouse gas emissions from the U.S. electric sector, driven in large part by power plants switching from coal to gas.

With respect to eminent domain, Mr. Powelson said he believes it should only be used as a last resort.

But, “you can’t have risked capital out there,” he told the oil and gas crowd. “You have to create regulatory certainty.”

Anya Litvak: alitvak@post-gazette.com or 412-263-1455.

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