The Pennsylvania Independent Oil and Gas Association (PIOGA) has come strongly against the DRBC’s proposed fracking ban, calling out the process as a sham.
PIOGA represents the independent members of Pennsylvania’s oil and gas industry and it has provided some excellent hard-hitting comments on the proposed DRBC fracking ban. They are laid out in a letter from PIOGA General Kevin J. Moody to the DRBC which raises significant new issues regarding the proposed fracking ban and new perspective on some points made here earlier. The PIOGA are easily understood, yet penetrating from a legal perspective. They will not easily be ignored.
PIOGA is concerned about the process by which the DRBC rules are being developed, where the ultimate decision makers have already voiced their decision to impose a ban, regardless of the nature or extent of public comment or additional information that should be evaluated. Under well-established principles of administrative law, notice and comment rulemaking is required so that government agencies and entities and officials do not make binding law without input from and accountability to the public. If this “proposed” rule is in reality a “final” rule with a predetermined outcome, the notice and comment process, including public hearings, is a sham undermining the validity of any rule finalized by the DRBC.
That’s exactly correct. The retired judge who moderated all the public hearings (except for the electronic version) opened them all with clearly sincere remarks about them being an opportunity to influence what happens, but he also admitted he knew little or nothing about the issue, which is why he didn’t realize how he was being used to advance a false narrative. He obviously didn’t realize a majority of the governors on the Commission had already stated how they would vote or he wouldn’t have made that statement unless he’s an uncommonly good liar.
Why would the governors be so foolish as to state their intentions prior to and, in Murphy’s case, during it? Because the governors are operating in political, not legal, mode. They really don’t care how out it all turns out legally; they just want to be on PC side of things with their own political bases. Validity is clearly irrelevant in their world and that’s the point PIOGA makes.
The association also makes several other strong points, starting with the fact the DRBC has not examined the logical alternative to a ban. Such alternative would achieve the DRBC’s own stated purposes without the unjust theft of economic opportunity the ban represents. Moreover, it’s an alternative already in place at the DRBC’s sister agency SRBC, where the same majority of members governs.
This proposed ban on hydraulic fracturing at proposed § 440.3 is unnecessary for protection of the water resources within the Basin or to protect public health and should be reconsidered and withdrawn by the DRBC.
The Supplementary Information provided by the DRBC as the basis for the proposed ban fails to consider significant relevant information, particularly the readily available alternative of developing appropriate regulations on water management and use and potential impacts associated with hydraulic fracturing. The DRBC has the authority to implement regulations to effectively protect the water resources of the Basin from the potential impacts identified in the Supplementary Information, and should consider the regulations promulgated by the SRBC for relevant examples. Appropriate regulation of water withdrawals and consumptive use by the DRBC, as well as reliance on host state regulations addressing oil and gas development and associated hydraulic fracturing operations, will provide the necessary level of protection for the Basin’s water resources. The consideration of the impact of such regulations should be included in the DRBC’s rulemaking analysis.
The point is so simple, it’s easy to miss. Why is the DRBC ignoring the alternative with which it is already intimately familiar, one that unquestionably works without absconding with mineral estates? Or, as PIOGA puts it:
Critically, the implementation of a ban on hydraulic fracturing deprives property owners within the Basin of their right to earnings from oil and natural gas in hydrocarbon-bearing formations underlying their property. In Pennsylvania, the subsurface estate is the dominant estate, and deserves protection from ill-conceived and unnecessary regulations like this proposed prohibition on hydraulic fracturing.
By failing to consider all relevant information, the DRBC has developed Proposed Rules that will inappropriately and unreasonably limit economic growth within the Basin and deprive property owners of the opportunity to benefit from resources on their property, without providing justified environmental benefits beyond those that could be achieved by appropriate regulation of the oil and natural gas industry.
This is the takings argument in a nutshell.
There’s more, though. Consider these PIOGA points:
By providing only an average value for the percent of recycled water used in hydraulic fracturing over this time period (which is lower than the percent recycled in both 2012 and 2013), the DRBC failed to recognize a positive trend in water acquisition that has likely continued and so is relevant to any anticipated impact of hydraulic fracturing operations within the Basin in the future…
…the DRBC notes that hydraulic fracturing operations may upset the balance between demand and availability of water resources, particularly during periods of low precipitation or drought. This issue, however, was addressed by the SRBC via the adoption of a Low Flow Protection Policy in December 2012. There is no indication that the DRBC considered whether this type of policy (or some other regulatory approach) can effectively protect the resources of the Basin as a reasonable alternative to a complete ban on hydraulic fracturing. There is also no indication that the DRBC has considered the effect of non-oil and gas activities on the balance between demand and availability of water resources – including activities that use comparatively larger amounts of water.
The DRBC reviewed and summarized data related to water withdrawals, consumptive use of water, chemical use and wastewater disposal associated with hydraulic fracturing, but failed to provide any context for the data. The Supplementary Information did not compare water acquisition volumes for hydraulic fracturing to water acquisition volumes in other industries or activities currently present and active within the Basin. In the Susquehanna River Basin, for example, the average daily consumptive usage rate for the oil and gas industry is similar to the rate for manufacturing-related activities and recreational water users, and much lower than the rate for electric power generators.
DRBC’s review also failed to discuss the types of additives or wastewater disposal methods employed by other industries. Without the context provided by information about other industries, it is impossible to determine whether the impact of hydraulic fracturing on water resources within the Basin is likely to be significant by comparison to other industries and associated consumptive uses, or to justify a ban targeting one industry…
The Proposed Rules also set out new requirements for exporting water from the Basin for hydraulic fracturing and for produced water importation, treatment and discharge. With respect to the exportation of water, it is unclear whether the proposed rule intends to treat exportation for utilization in hydraulic fracturing differently than exportation for other purposes under Section 2.30.4 of the Water Code. To the extent that the DRBC intends… to set a higher barrier to exportation than the existing rules, the proposed rule is both inappropriate and unnecessary. The DRBC should treat all exports from the Basin in a consistent manner, regardless of their purpose, to ensure that water quality and quantity within the Basin are protected, without favor or disadvantage to any particular industry or business sector.
These points highlight what’s going on with the proposed DRBC fracking ban; a targeted attack on a single industry for purely demagogic purposes at the expense of the citizens of a low-income area whose economic opportunities are being sacrificed on the altar of political ideology.