The Delaware Riverkeeper Exposed and Throttled in Court

Tom Shepstone
Shepstone Management Company, Inc.

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A decision by the Pennsylvania Environmental Hearing Board exposes the radical agenda of the Delaware Riverkeeper a/k/a Povertykeeper and throttles it back.

Last week something beautiful happened in the Pennsylvania courts; the Delaware Riverkeeper got handed another big loss. This one, before the Environmental Hearing Board, was special in three ways. First, it delivered a very sharp blow to the kind of speculation on which fractivists such as the Delaware Riverkeeper always, of necessity, rely. Secondly, it unambiguously stated the Environmental Rights Amendment should not be read as preventing any impacts to the environment. Finally, it exposed the fact the Delaware Riverkeeper and Clean Air Council, twin shills for the William Penn Foundation, are about about stopping natural gas development and using the courts as weapons in policy disputes.

Source: Rex Energy

The Pennsylvania Environmental Hearing Board (EHB) is a court established in the Commonwealth to hear cases involving the Department of Environmental Protection. If it surprises you to know there is such a court, it is a reflection of the fact environmental groups have so tied up things for anyone wanting to engage in productive activity that it requires a special court to untangle them.  This case is an extremely tangled one that’s been in and out of court for years as the Delaware Riverkeeper has harassed Rex Energy (putting the company out of business may well be one of the objectives) over natural gas development taking place in Middlesex Township, Butler County.

I wrote about the Middlesex case previously here and here. I thought the legal battle might be over at one point, but it has continued as the William Penn Foundation’s “little green bullies” have continued to try to make life miserable for landowners 200 miles and two watersheds away from the Delaware River. They have truckloads of gentry class dollars available to hire lawyers, so I should have known better. Still, the recent EHB decision is a big one for the reasons I cited at the outset. Here is a highlighted version of the decision. Reading there highlighted parts will give you a good sense of how things went down without having to wallow in the legalese.

The most important elements of the decision may be found below (emphasis added):

More Than Speculation Required

The preponderance of evidence standard requires that Delaware Riverkeeper meet its burden of proof by showing that the evidence in favor of its proposition is greater than that opposed to it. It must be sufficient to satisfy an unprejudiced mind as to the existence of the factual scenario sought to be established. Delaware Riverkeeper’s evidence must be greater than the evidence that the issuance of the permit was appropriate or in accordance with the applicable law… The party challenging the permit issuance may not simply raise an issue and then speculate that all types of unforeseen calamities may occur…

Delaware Riverkeeper does not specifically assert that the Department should have denied the Geyer Well Permits or Renewal Permits under any of the other reasons listed in 58 Pa. C.S.A. § 3211 (e.1) and no evidence or testimony was presented at the hearing that would support a conclusion that the Department should have denied the Geyer Well Permits or Renewal Permits under any of the five other reasons identified in 58 Pa. C.S.A. § 3211 (e.1)…

Looking at all the testimony from the experts on the potential and actual air emissions at the Geyer Well Site that may result from the Department’s permitting decision, we find that Delaware Riverkeeper has not carried its burden to show that the Department violated Section 3259 of the 2012 Oil and Gas Act in issuing the Geyer Well Permits and Renewal Permits because Delaware Riverkeeper did not demonstrate by a preponderance of the evidence that the air emissions will adversely affect public health, safety, welfare or the environment.

Environmental Rights Amendment Isn’t What Delaware Riverkeeper Says

Delaware Riverkeeper’s other main argument in this case is that the Department’s decision to first issue and later renew the Geyer Wells Permits violated the Department’s obligations under Article 1, Section 27 of the Pennsylvania Constitution. Article 1, Section 27 states as follows:

“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 people.”

With that general guidance in mind, we turn to the points raised by Delaware Riverkeeper. They argue that “the Department failed to conduct a proper Section 27 pre-action analysis” in this case and therefore, failed to satisfy its constitutional obligation to consider the environmental effects prior to reaching its permitting decision…

In order to conduct a proper pre-action analysis, the Department, in Delaware Riverkeeper’s opinion, is required to conduct a detailed risk assessment. Delaware Riverkeeper argues that instead of the required analysis, the Department relied on what Delaware Riverkeeper terms “the rote application of minimal regulatory requirements.”

…The 2012 Oil and Gas Act and the corresponding regulations contain detailed and prescriptive standards for well drilling, well operations, well plugging and other activities associated with well development. These performance standards, such as the casing and cementing requirements, erosion and sedimentation control requirements, and control and disposal planning, to mention just some of the standards, are designed and intended to protect the environment. There was no evidence in this case that Rex failed to comply with any specific statutory or regulatory performance standards or that it was improper for the Department to consider compliance with those standards as part of its consideration of the potential environmental effects of the Geyer Wells…

The evidence and testimony at the hearing clearly demonstrate that the Department considered the environmental effects in advance of its permit decision. Unlike other governmental entities who may not have the environment as a focus, the Department’s mission makes consideration of environmental effects central to its responsibilities and it would be a surprise to us if Department staff failed to do so when they make a permit decision. The evidence presented by Delaware Riverkeeper does not convince us that the Department failed to consider the potential for environmental effects in advance of issuing the Geyer Wells Permits and Renewal Permits in this case. The fact that the consideration did not involve a full blown risk assessment and was not as extensive as Delaware Riverkeeper believes was necessary does not, in our opinion, violate the requirements of Article 1, Section 27. We think that viewing the totality of what was considered, in conjunction with the existing laws and regulations that applied to the activity, as well as the nature and scope of the likely impacts, the review by the  Department was sufficient to satisfy the constitutional requirement that the Department consider in advance the environmental effects of its action…

Delaware Riverkeeper has not convinced us that the Department’s decision to approve the Geyer Wells Permits and Renewal Permits was likely to cause or did in fact cause unreasonable environmental impacts and/or was contrary to the right of citizens to clean air and pure water, and to the preservation of natural, scenic, historic or esthetic values of the environment…

as a practical matter, air and water have relative rather than absolute attributes, and… the Environmental Rights Amendment should not be read as preventing all impacts to the environment nor does it call for a stagnant landscape…

A plurality the Supreme Court recognized as much in Robinson Twshp. stating “the trust’s express directions to conserve and maintain public natural resources do not require a freeze of the existing public natural resource stock.” …Further the Board has noted in prior cases, that environmental permitting contemplates some amount of environmental impact, “whether it be a discharge to waters of the Commonwealth, or the surface and subsurface disturbances associated with oil and gas development.”

Delaware Riverkeeper Is All About Stopping Anything and Everything

In this case, we find that Delaware Riverkeeper has not proven that the Department’s permitting decision allowed unreasonable degradation to the environment contrary to its constitutional responsibilities. At its most fundamental, Delaware Riverkeeper’s concerns in this case reflect its general disagreement with the current policy approach in Pennsylvania that permits the drilling and completion of unconventional natural gas wells. We, however, are tasked with looking at a particular decision of the Department and in this case, we find that the evidence presented by Delaware Riverkeeper did not demonstrate by a preponderance of that evidence that the Department’s decision to issue the Geyer Wells Permits or the Renewal Permits was unreasonable and/or in violation of either the Commonwealth’s laws or the Pennsylvania Constitution.

The decision speaks for itself and speaks up for reason in contrasts to the Delaware Riverkeeper who only shrieks to get its way.

 

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