Natural Gas NOW
The Pennsylvania EHB says it only takes one hiker with a view for PennFuture to frivolously interject itself into any DEP decision and destroy jobs.
Immediately following the wonderful news the Commonwealth Court had overturned that ludicrous Lycoming County decision, reality about what we’re up against today in this country intruded with a vengeance. It came in an e-mail I received from a very good friend and one the best attorneys I know, who forwarded me a link to a recent Pennsylvania EHB (Environmental Hearing Board) decision stating it only takes a hike in the woods and the fear of seeing a gas well pad to trump energy independence and jobs, not mention cleaner air and other real improvements in the environment. Your view is now supreme, especially if you happen to be a member of the ruling class.
The Pennsylvania EHB decision was to deny the joint motion of Pennsylvania’s Department of Environmental Protection (DEP) and Anadarko E&P Onshore, LLC to dismiss the appeal of PennFuture (child of the Heinz Endowments and William Penn Foundation) challenging permits issued associated with gas drilling in the Frozen Run watershed of the Loyalsock State Forest.
The EHB decided the mere fact Penn Future’s attorney, Mark Szybist, hiked in this forest and had “expressed an aesthetic appreciation for the area” was enough to establish he had “a ‘substantial’ [as well as ‘direct’ and ‘immediate’] interest in the subject matter of the particular litigation.” Judge Steven Beckman, writing for the court, agreed with PennFuture that “the construction of a large well pad and construction and improvement of a nearly mile-long access road through a forested area would “significantly and adversely impact the natural beauty and serenity Mr. Szybist currently enjoys . . .”
Well, if that’s all it takes, all PennFuture has to do interject itself into any DEP decision on any matter is to send one of its staff out on a hike. The implications are huge; this is nothing less than another gigantic step toward a tyranny where wealthy elites can simply throw money at special interest groups to intimidate the bureaucracy into denying anything they don’t like based. Moreover, they can now do so on the flimsiest of excuses – aesthetic appreciation, natural beauty and serenity – all of which are in the eye of the beholder.
Pennsylvania was once a state where aesthetics alone were never thought to be enough to decide an environmental or land use issue. No longer. The Pennsylvania EHB now says they’re enough to get you into court as an aggrieved party who can delay and impose new costs on the creation of others’ jobs and energy simply because you don’t like the view. The EHB, in fact, says it only takes one member to be offended for a group such as PennFuture to assert a substantial, direct and immediate interest in a matter. Read the whole decision; it’s short, very readable and guaranteed to infuriate you if you have an ounce of common sense remaining in your soul.
A reading of the doctrine established in 2000 and now interpreted away by Judge Beckman (ironically he’s a lawyer with a degree in geology who once worked with Shell and was appointed by Tom Corbett) illustrates precisely why the natives are so restless today with the way our government is being run by an obtuse political establishment that turns the rule of law inside out to fit its own desires:
[t]he purpose of the standing doctrine in the context of proceedings before the Board is to determine whether an appellant is the appropriate party to seek relief from an action of the Department. Valley Creek Coalition v. DEP, EHB Docket No. 98-228-MG (Opinion issued December 15, 1999). In order to have standing to challenge a Department action, an appellant must be “aggrieved.” Florence Township v. DEP, 1996 EHB 282. Accordingly, an appellant must show that he has a “substantial” interest in the subject matter of the particular litigation which surpasses the common interest of all citizens in seeking compliance with the law; a “direct” interest that was harmed by the challenged action; and an “immediate” interest that establishes a causal connection between the action complained of and the injury they suffered.
No one can read this without understanding precisely what is meant but, over time, one EHB decision after another has eroded every aspect of it. This is precisely what happens with all law over time when the enforcers and interpreters of it are given free rein to take the horse in whatever direction their heart tells them – it gets corrupted to the point the original words no longer means anything and eventually mean the opposite of what was intended. That is what has occurred here as Beckman has delivered a thoroughly elitist view of what the law should be. Perhaps it’s all explained by the fact he served as a Regional DEP Director under Tom Ridge, the same guy who gave us Carol Collier at the DRBC, our current pension crisis and a DEP that thinks its role in life is to jump twice as high as EPA suggests.
Notwithstanding this, even DEP saw through this one and recognized that letting PennFuture into the courtroom merely on the basis of the affronts to Mr. Szybist’s serenity was over the top and well down the stream toward gentry class tyranny. Unfortunately, though, there’s nothing surprising about the decision. This, all too often, is the way things work in that world.
It all takes me back to an episode from my earlier life when I sat on the board of a company that held its annual meetings at the gorgeous and historic Otesaga Resort Hotel in Cooperstown, NY. I served together with several others, including the CEO of an upstate New York regional bank and as we were walking outside and admiring the architecture of the hotel one day this otherwise relatively conservative fellow remarked “You know, I don’t mind some of my tax money going to keep this kind of place open.” He was assuming the Otesaga might have qualified for some historic tax credits and his comment, though I didn’t argue at the time, was stunning to me, because I was raising a family and was keenly aware of how difficult it was to pay those taxes.
My friend was already retirement age and long past the point he had to worry about how to make those quarterly tax payments that always stretched me to the limit. He could afford to invest his money in aesthetics and saw nothing wrong with investing mine too. That’s exactly the dynamic at work with this Pennsylvania EHB decision. Judges are part of the club, part of the gentry, part of the ruling class where aesthetics and being thought well of by the other members of the club supersede the values of a job, energy security or any of those other mundane things that occupy the minds of the poor and middle classes. Not even the environment itself rises to the level of aesthetics in that world and, so, a hiker’s view somehow rises to the top in the hierarchy of public interests, revealing the dirty secret of much of environmentalism – it’s overwhelmingly upper class and the embodiment of elitism.
Is Judge Beckman the problem here? No, not really. He’s obviously an accomplished guy and he may well have the highest of motivations, but we’re dealing with a culture and a system that turns the plain meaning of words and law upside down. Judge Beckman and the other EHB members are simply going with the flow, which is to continue the distortion to the point where what was clearly intended is now what is the forbidden – the denial of frivolous claims.
Instead, the frivolous is now the standard because one judge after another has slowly interpreted away the purpose of the law each one citing the precedent of the one before. What we now have, as a result, is a rule where “the common interest of all citizens in seeking compliance with the law” is now subservient to the special interests on one hiker with a view and the Pennsylvania EHB says jobs and energy security can take a hike if they don’t like it.
Full disclosure: I am hiker, too, but I don’t seek to impose my views on everyone else, as PennFuture is doing here with the acquiescence of the courts and the financing of some very special interests.