If at first you don't succeed...

The timing of the Supreme Court's Act 13 decision could not have been a coincidence.  The holidays and their vacation days have provided attorneys and activists across the time to read and understand the new field of public trust jurisprudence.

Today the Marcellus Shale Coalition made its call for more cooperation in the Opinion section of the Post-Gazette:  http://www.post-gazette.com/opinion/letters/2013/12/29/The-Act-13-decision-unravels-protections/stories/201312290024

Ever since Act 13 was enacted I have considered the parallels with other land use and environmental laws in Pennsylvania.

For instance in early spring 2012 I emailed to colleagues some thoughts:

Sorry, but I feel some pride that I saw the potential of Sec. 27 back then...I needed to better empower myself to act on it.

But the more important point is in the next paragraph.  Pennsylvania Land Use and stormwater laws that rely on municipal implementation tend to lead to a race to the bottom.

So, what will more cooperation look like?
And, should we not start cooperating, as the Supreme Court is encouraging us to do...with a better understanding and appreciation of our Constitutional mandate:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic 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.

Glorious Day -- PA Supreme Court decision on Act 13

I am too excited to study this opinion closely.  But I am celebrating that the PA Supreme Court finally gave so much thought to Environmental Rights.  Kudos to the attorneys involved.

Here is a quote from the opinion that shows why I am excited:

As trustee, the Commonwealth has a duty to refrain from permitting or encouraging the 

degradation, diminution, or depletion of public natural resources, whether such 

degradation, diminution, or depletion would occur through direct state action or 

indirectly, e.g., because of the state’s failure to restrain the actions of private parties. In 

this sense, the third clause of the Environmental Rights Amendment is complete  

because it establishes broad but concrete substantive parameters within which the 

Commonwealth may act. Compare PA. CONST. art. I, § 27 with, e.g., PA. CONST. art. I, § 

28. This Court perceives no impediment to citizen beneficiaries enforcing the 

constitutional prohibition in accordance with established principles of judicial review. 

Almost afraid to read the rest of the opinion:

http://www.post-gazette.com/attachment/2013/12/19/PennsylvaniaSupremeCourtMarcellus-pdf.pdf

EPA's "War on Shale Gas" in West Virginia

EPA takes enforcement action in West Virginia: 

http://www2.epa.gov/enforcement/chesapeake-appalachia-llc-clean-water-settlement#violations

$3.2 million civil penalty and $3 million in restoration projects for violations at 27 sites in West Virginia pursuant to EPA and the Department of Justice.

According to State Impact Pennsylvania, from DEP data, Chesapeake Appalachia has paid ~$1.4 million for 406 violations at 152 sites in Pennsylvania.  Have not heard anything about any restoration requirement as injunctive relief.  

Gravel Load -- Bryan Sand & Gravel Dec. 4

If this load came from the Allegheny River it would be one of the last.  As the current permits for Dredging in the Allegheny Rive expire at the end of 2013 and no one is renewing.

In the very earliest days of a Pittsburgh Keeper program, 2002, when it was still struggling to incubate from the Friends of the Riverfront, the Keeper joined in the campaign opposing permit renewal. One of our arguments was that the Commonwealth was subsidizing dredging in violation of its public trust responsibilities.  The royalty it charged did not provide enough to restore the River bottoms for future generations.

If it allows the resource embodied in the River to be harmed it should at least get a royalty commensurate with the damage.  The Royalty may have gone up a bit in the two permit renewal cycles since (2003 and 2008).  But what really brought Allegheny River dredging to an end are endangered mussels.  The endangered mussels of the Allegheny River needed to be protected...that was the first and priority argument n opposition to the permits.  The 2008 permit required impact studies that the dredging companies found to costly and the revenues too small.  It is still economics.

If We Have to Drill, Can We Agree to be Prepared?

The Nature Conservancy today released a poll showing that voters in the Appalachian region want a rational planning and regulatory system to minimize environmental impacts from Marcellus Shale drilling.
http://www.nature.org/newsfeatures/pressreleases/appalachia-poll-memo.xml

In fact, to quote directly:

To protect forests, rivers, and streams from the potential negative effects of natural gas development in the Central Appalachians, robust majorities of voters in the region support establishing strong environmental safeguards as a condition on further natural gas development, including:

o Requiring natural gas developers, before they start drilling, to prepare regional plans for locating their wells and pipelines to reduce impacts on wildlife habitat and water quality (93 percent)
o Requiring natural gas developers to prevent or fix any negative impacts that drilling, pipelines, and roads may have on forests or water quality (92 percent)
o Requiring companies that drill for natural gas to follow guidelines based on sound science to guide their decisions about where to put natural gas wells (91 percent)

So, over 90 % of voters in the Marcellus Shale region seem to agree with the recent Roundtable convened by the Institute of Politics which called for a "logical organization of drilling units over a defined geologic formation in order to minimize surface disturbance and maximize the efficiency of extraction and transport of oil and natural gas."

http://www.news.pitt.edu/news/shale-gas-roundtable-releases-final-report

So, if we have to drill, can we agree with so many others, to do it rationally?  

Murray Energy buys Consol River Division

A Consol Energy tugs works the barges moored along the left descending bank across from Point State Park on the last day of November.

A month ago Consol Energy announced that its River Division, including over 20 tugs and 600 barges were purchased by Murray Energy.  The transfer of the River Division was almost an afterthought to selling five local coal mines.

Murray Energy was in the news quite a bit in 2012 as it was instrumental in declaring Obama's "War on Coal".  IT also threatened to lay of workers if Obama won, and waited nary a week before doing so.

Now that Murray Energy is one of the leading commercial users of our Rivers, will it declare Obama's "War on the Rivers" if billions are not budgeted to the Army Corps of Engineers?

It is so hard to regulate Coal Ash...

The heavy-metal laden waste created from the burning of coal avoids reasonable control. As a result it seeps around and into the environment through paths of least resistance. IT becomes a reflection of the environmental justice impacts of our carbon fuel based economy. This summer the EPA asked for public comment on proposed rules. EPA has gone silent to such an extent that the Federal Courts have intervened to demand a schedule. http://www.publicintegrity.org/2013/10/29/13650/epa-under-gun-regulate-coal-ash AS we wait for a federal policy states continue to ask under programs that are usually just guidelines. In Pennsylvania the Bruce MAnsfield plant's coal ash dump site of Little Blue Run has been used since 1974 and can be seen from space. Finally reason has prevailed and it must be closed (but not necessarily cleaned up). The proposed beneficial use is barging it to a waste site on a former mine site in Fayette County, 90 miles by barge.

DEP inteferes with Citizen Action on behalf of the Allegheny River in Warren

This DEP action is more of a help to the WAste Treatment Corp than a punishment. There are times when DEP should empower citizen suits such as Clean Water Action's suit for these same violations. In this case DEP is providing cover to the polluter. The penalty is minimal and the company is given a license to pollute the Allegheny for two more years. The River would have been better served with citizen action through the Courts. http://www.post-gazette.com/news/environment/2013/11/28/DEP-aims-to-reduce-company-s-discharges-into-river/stories/201311280176