Natural Gas NOW
PennFuture and the wealthy empire it represents just lost a Federal case with major implications for pipeline companies and Marcellus Shale development.
We did an expose the other day here on PennFuture, a phony advocacy group financed by Pennsylvania’s aristocracy (the Heinz Endowments and the William Penn Foundation, among others) that, unless the State Senate intervenes, is poised to assume major control over Pennsylvania government and its entire environmental program. If the Senate doesn’t squash this attempt at creating a PennFuture Administration, we can expect nothing but Heinz Ketchup for our daily economic bread the next four years.
We do have something else, though, and that’s the law, as a stunning defeat for the empire revealed this week.
PennFuture just lost a major case in Federal district court over the issue of aggregation. The case was Citizens for Pennsylvania’s Future v. Ultra Resources, Inc., and was decided by the U.S. District Court for the Middle District of Pennsylvania. Judge Robert Mariani granted Summary Judgment for Ultra Resources, which was represented by the Babst Calland law firm. The major facts of the case and legal commentary by Babst Calland may be found here, but the most interesting aspect of the decision for us was the court’s use of common sense to call the empire’s bluff.
What this case was all about, in the simplest of terms, was a concerted effort by the Heinz Endowments and the William Penn Foundation to kill natural gas development by forcing the combination of air permit applications so to exceed thresholds intended for individual facilities. They have, through their PennFuture and Clean Air Council minions been insisting pipeline companies aggregate their compressor station projects and apply for one gigantic permit that exceeds certain thresholds and would allow better opportunities to stop the projects.
It’s as if a Wal-Mart store were to be required to secure a building permit for constructing 1.82 million square feet of floor area because it happened to be building 10 supercenters of 182,000 square feet each in 10 nearby communities. Common sense quickly tells us how absurd that would be. Nonetheless, that’s exactly what PennFuture was asserting in this case; that, because the facilities were part of the same distribution system, they should be considered a unit for permitting purposes, even though they are miles apart (this case involved a roughly 30 square mile area of Potter and Tioga counties on which were proposed eight compressor stations or about one per four square miles).
The court rejected PennFuture’s reasoning saying, among other things, the following (emphasis added):
When aggregating Ultra’s eight compressor stations, two sets of stations are separated by approximately 4 miles and one set of stations is separated by approximately 3 miles. Even when considering the emission sources with the highest NOx emission potential, as Defendant properly states, the Court would have to aggregate at least five of Ultra’s compressor stations in order to reach a NOx emission in excess of 100 TPY… This would require the Court to aggregate the Lick Run and Button stations, located 4.43 miles apart, as well as the Thomas and Lick Run stations, located 3.09 miles apart. Even accepting the parties’ stipulation that “if lines were drawn between Ultra’s compressors to delineate [the] linear distances [between the compressors], the total area within the lines would be less than five (5) square miles,”…this distance fails to establish that the multiple lands necessary to create a “major” source are sufficiently close to, or near enough, each other to be considered adjacent.
Furthermore, the manner in which Plaintiff urges the Court to aggregate Ultra’s stations runs afoul of PADEP Guidance that facilities should not be “daisy-chained” together to establish a contiguous grouping. Given that the regulations prohibit sources from being “daisy-chained” when conducting a case-by-case analysis, it must follow that properties can also not be “daisy-chained” in order to meet the key requirement of contiguousness or adjacency. Here, the Court would be required to “daisy-chain” a number of properties and their sources in order to find that Ultra’s facilities constitute a “major” source.
Because a number of separate and unconnected parcels of land on which the compressors are located would have to be aggregated in order for the NOx emissions to reach the level of a “major” source, and some of these properties are separated by several miles, the properties at issue cannot reasonably be considered…to be “adjacent.”
…It is undisputed that the gas from each compressor station flows in only one direction to the same metering and regulation station. These compressor stations are not connected in any other way, and operate independently of one another. Other than their physical location, there is no discernable relationship between the individual emission stations. While PADEP Guidance and EHB decisions have both recognized that interdependence may be a factor in conducting a single source determination, they also make clear that the plain meaning, as found in the dictionary, of the terms “contiguous” and “adjacent”, and not the interdependence between the sources, should be the dispositive factor in determining whether stationary sources are located on contiguous or adjacent properties. As such, to look beyond the plain meaning of the terms “contiguous” and “adjacent” when conducting a case-by-case determination, the case should present a unique factual scenario. Plaintiff has not pointed to any record facts to demonstrate that Ultra’s individual facilities are in any way unusual or outside of the normal oil and gas configurations and arrangements contemplated by PADEP.
The decision speaks for itself, of course, but here’s the key. There have been two organizations promoting the bogus expansion of the aggregation rule – Penn Future and the Clean Air Council. The latter has appeared at virtually every compressor station hearing across the shale fields of Pennsylvania to oppose permitting and advocate the rule expansion. It was, in 2011, when its sister entity PennFuture brought this case, the recipient of $175,000 of combined funding from the Heinz Endowments and the William Penn Foundation. PennFuture got $1,775,000 from the two entities, bring the grand total granted by the empire that year to these two proxy organizations to a staggering $2,030,000.
That’s how much the empire invested in pushing aggregation rule expansion (as well as other measures, of course) through Clean Air Council boots on the ground and PennFuture barristers in the courts. And, they lost…for now. The problem is that much of the Federal court’s decision in this case relied upon DEP’s own common sense interpretation of what aggregation and “adjacent” really mean, demonstrating how crucial it is to have professional, non-ideological management of DEP.
So, who has Tom Wolf designated as his DEP Secretary? None other than John Quigley, former legislative/lobby guy at PennFuture and consultant in opposition to pipeline projects. It’s not hard to see the danger here and why Quigley should almost certainly not be confirmed by the Senate. He should, at a minimum, be required to commit that he will not attempt to impose PennFuture’s discredited definitions upon DEP.
Now, you have the full picture…
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