Sen. Lisa Baker questioned Pennsylvania DEP Sec. McDonnell regarding the DRBC quagmire at Senate Budget hearings and got him to admit some important things.
Pennsylvania Senator Lisa Baker deserves three cheers for her questioning of DEP Secretary Patrick McDonnell at Senate budget hearings. It was a very respectable discussion, as is proper, but Baker had done her homework and accomplished several things. Most of all, she got an uncomfortable McDonnell, who’s trapped between what he knows to be correct and an unengaged, condescending governor with a political agenda— who happens to be his boss—to admit some key points. Baker knew what she was doing.
Here’s the video of the exchange:
The first thing apparent is the obvious level of discomfort in McDonnell’s body language. I noticed the same thing in privately talking with him after one of the Governor’s “Cabinet in the Community” dog and pony shows. McDonnell is, in my judgment, just too honest for this stuff.
The transcript of the exchange tells us more, for McDonnell’s answers reveal the empty shell that is the DRBC justification for its power play. Here it is and I’ve highlighted to key things:
Senator Lisa Baker (LB): To the point of the DRBC and the SRBC; who are the representatives that sit on both of those commissions on behalf of the Commonwealth? Are they the same individual?
DEP Secretary Patrick McDonnell (PM): Yes. I’m the appointed person and then Jennifer Orr in the department is my alternate who attends most of the meetings.
LB: And, so you know there’s been a lot of question about the department and the administration moving forward to look for a permanent ban on any kind of oil or natural gas development in the Delaware River Basin. But, it’s safe to say, in your position on either commission, you find on the SRBC side, that it is safe, you haven’t had any water issues on the SRBC. Is that safe to say?
PM: I think on SRBC their authorities are different in this area so it’s not something that’s ever came before the commission. I think what we’ve seen in the studies that we’ve seen are; it has been fine on the SRBC side. On the DRBC’s side there’s a couple counties in particular that have Marcellus, I know I’m meeting with some representatives from there in the coming weeks but the…
LB: Well, there are only two counties that are being singled out and you know for the landowners there who are seeing an entity that we have two representatives the same one on each looking over the hill seeing differences of policy, differences of how you apply state regulations. And, in fact, we would be granting an unelected body, land use planning and regulations that really usurp and trump what the state has put together. And I think you would say our state regulations on oil and natural gas have been appropriate and well defined and all of that. So, I guess, as we continue this conversation, the big question my landowners asked me who live in these two counties; if that’s going to pass then, you know, is that eminent domain? And is that a taking of their land rights? And who should pay them for the total loss of exercising their right as land owners? It’s a very interesting dynamic in development when we have a state where we’re saying in 65 counties it’s OK, but in these we’ve decided no.
PM: And, I think any decision on whether it would be considered a taking or not is something that will end up certainly in the courts for some decision one way or the other. I think you know, in particular, again, you know DRBC has some slightly different authorities to it; including some issues around special protection waters that’s unique in that area compared to the SRBC. So, it has a regulatory framework through the compact that is what we’re working through now. We’re working through those regs now, as you know, accepting comments on those regs. As I say, I’m sitting down with, with some of those in the community…
LB: I’m aware of that and I hope to be part of that. I mean these are landowners who have prided themselves in being good stewards of the land and why do you think we’re 20, you know, for more than 20 years demonstrated we’ve improved our water quality? Because these are the same people who don’t want to degrade their land. And they certainly don’t want to degrade the water quality for anyone downstream. So it’s a difficult situation. I just wanted to get on the record, we know you do agree that our regs are appropriate for the state.
PM: We have, we have very good oil and gas regulations.
LB: And thank you so much.
PM: Thank you.
First, Baker gets McDonnell to admit the DRBC and the SRBC are the same people as far as DEP is concerned. This is critical, as it means Pennsylvania’s DRBC representative knows full well what’s happening in the SRBC. There is zero excuse for being unaware of the SRBC September 2017 report entitled “Continuous Water Quality Trends in the Susquehanna River Basin,” which includes the following statement (emphasis added):
To date, the Commission’s remote water quality monitoring network has not detected discernible impacts on the quality of the Basin’s water resources as a result of natural gas development, but continued vigilance is warranted.
The fact this data was not considered in the DRBC’s analysis of the need for a fracking ban, raises the serious question of why it wasn’t. More to the point, why didn’t Pennsylvania DEP bring it forward and insist it be part of the analysis? The ugly answer is that DEP couldn’t do so without giving away the fact there is no justification and no way to reconcile the facts with Governor Tom Wolf’s political agenda of appeasing special interests. The only option was to leave it out and hope no one noticed, but we have—numerous times during the hearings—and the DRBC will have to address it either now or during some future court proceeding.
Baker then asked McDonnell if, indeed, he had found natural gas development to be safe on the SRBC side of the divide between the two watersheds. He tried to downplay the significance of what he knew he had to admit—”it has been fine on the SRBC side”— by suggesting the SRBC didn’t have to worry about water quality given their differing authorities.
That, of course, deflected from the fact the SRBC, regardless of authority to regulate water quality, had been continuously monitoring it in much more depth than the DRBC and found no discernible impacts. The SRBC, in other words, has proven hydraulic fracturing is able to meet DRBC anti-degradation standards for water quality. Whether the SRBC has the authority the DRBC has, or not, is wholly irrelevant. Baker showed why with her very simple question.
Baker also got McDonnell to admit DEP already has good regulations that are appropriate to the state and, therefore, doesn’t need DRBC help in regulating natural gas development. Indeed, the DRBC would, she said, impose on Pennsylvania’s sovereignty by “granting an unelected body, land use planning and regulations that really usurp and trump what the state has put together.” Additionally, she got him to say the issue of whether or not this was a legal taking would almost certainly have to be resolved in court. He knows the DRBC fracking ban is over the line. Is DEP hoping and trusting the courts will correct for the governor’s politics?
McDonnell tried his best to argue “DRBC has some slightly different authorities to it; including some issues around special protection waters that’s unique in that area compared to the SRBC,” as if, somehow, authority and not the results was the question. It’s the excuse the DRBC uses and he resorts to whenever he thinks he can get away with it, but notice his use of the qualifier “slightly.” That’s bureaucratic speak for there not being a dime’s worth of difference in authority in this instance.
The DRBC and SRBC compacts creating the agencies were acts of Congress. They are, therefore, the only source of authority either agency ultimately possesses. A comparison of those authorities with respect to water pollution may be found here. While the DRBC version is somewhat more specific, the SRBC is arguably more encompassing. The DRBC version includes this language on which McDonnell and others are relying (emphasis added):
The commission, after such public hearing may classify the waters of the basin and establish standards of treatment of sewage, industrial or other waste, according to such classes including allowance for the variable factors of surface and ground waters, such as size of the stream, flow, movement, location, character, self-purification, and usage of the waters affected. After such investigation, notice and hearing the commission may adopt and from time to time amend and repeal rules, regulations and standards to control such future pollution and abate existing pollution, and to require such treatment of sewage, industrial or other waste within a time reasonable for the construction of the necessary works, as may be required to protect the public health or to preserve the waters of the basin for uses in accordance with the comprehensive plan.
Notice this language anticipates treatment projects and authorizes the establishment of standards with respect to treatment. It says nothing about limiting land or water uses by their classes. Rather, it authorizes the DRBC to establish minimum water quality standards for each class of streams; standards any water uses would have to meet, regardless of use class.
This is also how the Clean Water Act, which has since fully occupied this field of regulation, works. It doesn’t limit land uses; it establishes standards any stream discharge has to meet. And, natural gas development is taking place on state lands in Exceptional Value classified watersheds in the SRBC region, because such development can, in fact, meet the high standards associated with that classification.
The proposed DRBC fracking ban, therefore, is a completely new assertion of authority with no basis whatsoever in the Delaware River Compact legislation enacted by Congress. It proposes to ban land uses that involve horizontal drilling and hydraulic fracturing, rather than apply minimum water quality standards all land uses must meet. It is a major departure from what the Compact authorizes and therein lies the problem for DEP in signing onto the power grab. Indeed, the Supreme Court, in 1988, unanimously held the following:
An administrative agency’s power to promulgate regulations is limited to the authority delegated by Congress.
There are numerous other court opinions saying the same thing in different ways but the message is identical in every instance; where an act of Congress is the source of your authority you can’t expand it on your own, not even if you’re the DRBC. Patrick McDonnell’s DEP lawyers know this. Her knows it, too. That’s why he’s embarrassed to defend Tom Wolf’s betrayal of Pennsylvanians in the DRBC region, as Lisa Baker so artfully showed us all with her questioning.
P.S. For a nice summary of the key points made through Baker’s efforts, see this EID post.