To some, Pennsylvania Governor Tom Corbett’s most recent press release is a noble attempt to protect waterways and wetlands from fracking operations while the state fights to overturn a recent Supreme Court decision that struck down provisions of the state’s Marcellus Shale drilling law, Act 13.
To others, it is just the opposite.
On Monday, Corbett announced that he had entered into a voluntary agreement with Pennsylvania’s oil and gas drillers to comply with buffer zones under Act 13, which had required fracking operations, deep-shale drilling pads and conventional oil and gas wellbores to be at least 100 or 300 feet from environmentally sensitive areas, depending on the type of drilling. Those buffer zones — also called the “setback provisions” — were struck down in December when a state Supreme Court judge ruled them unconstitutional.
The reason the buffer zones were ruled unconstitutional, however, was that drillers were not actually required to comply with them, according to Jordan B. Yeager, an attorney who represented plaintiffs in the case against Act 13. Because drillers were not required to comply, the law in essence meant that natural gas companies could drill anywhere they wanted, regardless of local zoning laws.
“The provision had a mandatory waiver requirement. So as long as the drilling company said ‘we’ll take steps back to protect the waters,’ the Pennsylvania [Department of Environmental Protection] had to grant a waiver to the setbacks,” Yeager, who represents the Delaware Riverkeeper Network, told ClimateProgress on Tuesday. “Those setback provisions were completely illusory. That’s why it got struck down.”
Act 13’s setback provisions were struck down in part because of Article 1, Section 27 of Pennsylvania’s state Constitution, which the gives the state “not just the authority, but the duty” to protect the state’s natural resources, Yeager said. In other words, the state has an obligation to protect waterways and wetlands from drilling, regardless of whether Act 13 is in place or not. Provisions under the state’s Clean Streams Law and the federal Clean Water Act also require the state to guard its waters from fracking operations and pollution.
“[Governor Corbett’s press release] is basically an attempt to grandstand and to confuse the public,” Tracy Carluccio, deputy director of Delaware Riverkeeper, told ClimateProgress. “It’s not at all true that setbacks don’t exist now, or that more can’t be adopted.”
But according to Patrick Henderson, Deputy Chief of Staff and Energy Executive for Tom Corbett, Act 13 does allow the DEP to reject drillers’ requests to frack near waterways.
“Mr. Yeager should know better. He’s fundamentally flatly wrong on the law,” Henderson said. “When the law says ‘the waiver, if granted,’ it clearly recognizes that the DEP doesn’t have to grant it.”
“What [Delaware Riverkeeper] doesn’t want to do is give the Governor and the Legislature any credit,” Henderson added. “The fact of the matter is there were an awful lot of environmental enhancements in Act 13 that were done to better protect the environment.”
While it is true that Act 13 includes increased protections including well-bonding, fines and penalties for polluters, and water protections, none of those provisions were challenged by Riverkeeper, or invalidated by the Supreme Court. However, it is possible that all of Act 13 could be invalidated. After deciding that the setback provision of Act 13 was unconstitutional, the Supreme Court sent the case back to the lower Commonwealth court to decide whether the provisions could be individually severed, or whether the whole act now needs to be declared unconstitutional.
Carluccio said she believes that, with the press release, the Pennsylvania DEP is attempting to build a basis for its motion for the Supreme Court to reconsider its decision on Act 13, something Carluccio said was “insultingly wrong.”
“This was one of the longest opinions written on something like this and not something [the court] lightly considered,” she said. “[Corbett] is trying to act like he’s a good guy, but because his reputation is tarnished from Act 13, it’s a PR move.”
Corbett spokesperson Jay Pagni said the press release and agreement with the drilling industry was Governor Corbett’s attempt to “work with the industry to ensure that environmental protections remain in place while the continuing legal discussions occur.”
“It’s a PR move on Tracy’s part, with all due respect,” Pagni said. “They try to paint a narrative of the Governor and they struggle with the fact that, in Act 13, not a single standard for the environment was weakened.”
This post has been updated to reflect comments from Governor Corbett’s office, and provide context for those comments.