State's Own Report Shows PA Flunking in Fracking Regulation, but Courts Continue to Keep State Out of Local Zoning

It’s worth stating the obvious: whether it’s the 209 confirmed cases of water pollution from oil and gas drilling the last 7 years, the state’s willful blindness toward certain drinking water testing results related to suspected contamination from fracking, or allegations that the Department of Environmental Protection (DEP) purposely ignored complaints from residents living next to well pads and compressor stations related to respiratory and other health problems, one thing is clear— Pennsylvania regulators have failed to protect Pennsylvanians, their property, and their communities from the harms of the breakneck expansion of fracking in that state. 

To those living in Pennsylvania fracking country—or following the industry there—this fact on its own, is not new news.  But what is news is the state itself admitting it, in a report released yesterday by the Pennsylvania Auditor General, which shows that DEP’s regulatory response to the “meteoric growth of the shale gas industry” is, in the Auditor General’s words, “like firefighters trying to put out a five-alarm fire with a 20-foot garden hose.”

My colleague, Amy Mall, provided a rundown of the report yesterday on her blog, but in short, the report is a damning assessment of a department that is woefully understaffed and unprepared to deal with the gargantuan task of regulating the thousands of new fracking wells in that state. 

Highlights from the report include findings that: (1) DEP did not routinely and consistently issue orders mandating drillers to clean up water supplies they had fouled as required by law; (2) DEP could not show that all active gas wells were timely inspected; (3) DEP had poor communication with residents affected by oil and gas activities; (4) DEP had a disorganized and ineffective system for tracking complaints; and (5) DEP inspection information was often inaccurate or incomplete, and the Department failed to make information available publicly on its website.

This comes on the heels of happier news late last week, when the Pennsylvania Commonwealth Court ruled, in the now famous Robinson Township case, that communities can continue to zone oil and gas drilling activities—such as keeping fracking away from homes and schools—without interference from another state agency, the Pennsylvania Public Utility Commission (PUC).  This is fantastic news for Pennsylvania communities, as it gets rid of a major tool that the state could have used to intimidate municipalities into not passing zoning laws they now have the legal right to do. 

The opinion resolves the outstanding legal issues not decided by Pennsylvania Supreme Court last December when it struck down the zoning provisions of Act 13 as unconstitutional.

One of the largest issues decided was whether—as Act 13 originally envisioned—the PUC would retain the ability to review local zoning ordinances for consistency with the Oil and Gas Act and other state law now that the “statewide zoning ordinance” provisions of Act 13 have been declared unconstitutional. 

These PUC advisory opinions would have been no joke for municipalities.  If the PUC determined that a local law “violated” other state law, that opinion could serve as a basis for expensive lawsuits against the municipality or denial of state “impact fee” funds that towns with fracking activity desperately need to repair the local damage caused by industrial fracking operations.

Thankfully, the Commonwealth Court tossed the provisions of Act 13 giving the PUC this authority as not “severable” from the unconstitutional statewide zoning provisions.  In other words, because Act 13 envisioned the PUC’s role as mainly reviewing local laws for consistency with unconstitutional state law, that role could not be separated from the unconstitutional zoning provisions. Accordingly, like moldy food, this authority needed to be thrown out with those unconstitutional provisions (moldy food, of course, should be composted).

Not all of the news from the opinion is good, however.  The court also upheld other challenged elements of Act 13.  This includes the infamous medical “gag rule,” DEP’s liberty not to notify small private drinking water users of a contamination incident, and the ability of oil and gas companies recognized as “public utilities” to use the power of eminent domain to build gas storage facilities. However, it is important to note that even though the court did not find these provisions unconstitutional, it did not approve of their wisdom either.  To the contrary, with respect to the contamination notification provisions, the court noted that DEP should take all actions to notify affected water users and that “drilling companies should make similar undertakings as good corporate citizens, not to mention that it is their actions that necessitate the warning.”

Another thing to note is that the court largely upheld a preemption clause in Act 13, similar to the one in New York, preventing localities from trying to directly regulate the technical aspects of oil and gas drilling.  As courts in Pennsylvania have recognized, this type of clause allows local communities to exercise traditional zoning rights, including where a well may be located, while reserving the mechanics of regulating the oil and gas industry operations to the state.

In other words, it is still DEP’s job to regulate fracking in Pennsylvania.  Let’s hope now that they’ve received a well-deserved kick-in-the-pants, they’ll follow the Auditor General’s advice and start cleaning up their act.