The DRBC fracking ban has been justified with a totally dishonest explanation ignoring key facts, prevailing law and even an elementary sense of justice.
The Delaware River Basin Commission, in proposing the DRBC fracking ban, has published a lengthy public notice laying out the justification or rationale for the ban. It’s a poorly written, error-ridden, deceptive and thoroughly dishonest document that anyone within even an elementary knowledge of the facts can quickly debunk. I suspect a future court will also do so. It’s that bad.
Much of the testimony at last month’s hearings on the DRBC fracking ban properly focused on the absurdity of the double standards applied as the DRBC, governed by the same majority of members as the SRBC, deliberately ignored the decade of experience with natural gas development in the Susquehanna River Basin, where water quality testing has shown “no discernible impact on the quality of water resources” from that development. That’s a powerful point and one the DRBC will now have to address, thanks to the multitude of comments on the subject.
There’s much more, though, as one peruses the published justification for the DRBC fracking ban. Here are a few of the problems:
- The DRBC’s justification is based on Article 5 of the Delaware River Compact relating to “Pollution Control.” However, the Compact was executed long before the Clean Water Act was enacted, and the courts have subsequently determined this act has fully occupied the field of interstate water pollution. Article 5 has, for all practical purposes, been superseded.
- One of the major excuses for the ban is the idea “landscape changes” associated with high-volume hydraulic fracturing “will reduce forested areas and potentially vegetated buffers, increase non-point source pollution, diminish groundwater infiltration, and risk adversely affecting water quality and quantity in surface and groundwater.” Yet, Pennsylvania and New York arguably already have the toughest erosion, sedimentation and stormwater management regulations anywhere. They completely address this issue and often lead to reduction of existing pre-development stormwater flows. Moreover, Wayne County has added nearly 45,000 acres of forest since 1959, many times more than would ever be removed by natural gas development. There is zero foundation for additional regulation on this front. Moreover, if this excuse is all that’s required for the DRBC to ban a legitimate land use, then it can ban any land use whatsoever, from agriculture to forestry to commercial and residential development of any kind.
- As the justification itself indicates, addressing water needs for “power generation” and “industrial activity” is part of the DRBC mission. Yet, these proposed regulations, far from recognizing these needs and balancing them with others through reasonable standards, would simply prohibit development of one of the key natural resources associated with power generation and industrial activity for the sake of pandering to special interests. Providing water for natural gas fueled generation of electrical power also undeniably serves to reduce carbon and other emissions through substitution of gas for coal and oil fuels, which has saved hundreds of New York City lives that would have otherwise been lost to air pollution.
- The Special Protection Waters excuse for regulation is completely bogus on two fronts. First, the designation is nothing more than a regurgitation of Clean Water Act standards for what, in Pennsylvania, are known as Exceptional Value and High Quality streams. Such streams also exist throughout the drilled areas of the Susquehanna River Basin with “no discernible impacts on the quality of water resources” as a result. Gas drilling already occurs in even Exceptional Value watersheds and is able to meet non-degradation standards. Secondly, the responsibility for meeting the non-degradation standards is already incorporated in Clean Water Act regulations the states implement as well as existing regulations of the DRBC itself. Once again, there is no basis for a ban.
- Because the DRBC and/or its members states already regulate water withdrawals, wastewater disposal, erosion and sedimentation and stormwater management, the sole remaining aspect of natural gas development it can claim as an excuse for a DRBC fracking ban is the risk of accidents and spills. Indeed, it states “the combination of activities and factors more likely than others to result in more frequent or more severe impacts to water resources are spills.” It goes on, in fact, to cite such factors as equipment failure, human error, weather and vandalism. The DRBC, in other words, proposes to totally ban a legitimate land use based on the potential for accidents and does so without even quantifying the actual risk compared to other activities. As someone who grew up along the Delaware, I well recall train derailments that spilled all kinds of things into the river, including feed (nasty smelly stuff when wet) and hazardous chemicals. Are trains now to be banned by the DRBC?
- The DRBC quotes the EPA study as to “uncertainties [that] precluded a full characterization of the severity of impacts” and indicates such uncertainties are justification for a ban. This ignores the fundamental point; that the EPA spent several years, several millions of dollars and employed hundreds of professionals in an effort that failed to find evidence to conclude hydraulic fracturing—conducted on millions of wells over decades—had a quantifiably severe impact on water resources. The EPA made no recommendations to ban the practice, only suggesting improvements that might be made. Employing such a result to effectuate a ban, once again, reveals the breadth and depth of the DRBC power grab, which could be used to halt anything and everything.
- The DRBC also cites the infamously politicized New York State findings that, at the governor’s direction, suddenly went directly contrary to its own DEC’s earlier conclusions, relying instead upon junk science conducted by fractivists and, astoundingly, peer-reviewed by other fractivists.
The remainder of the justification DRBC fracking ban is riddled with errors, suggesting:
- hydraulic fracturing has polluted water supplies (it hasn’t),
- gas wells are repeatedly hydraulically fractured multiple times (they aren’t),
- the amount of water used is massive (it doesn’t come close),
- the water is lost forever (not true),
- water use is growing (not so),
- hydraulic fracturing causes gas migration (doesn’t happen),
- risk increases over time due to declining well integrity (not true as pressures decrease over time),
- wastewater disposal is not regulated (it is thoroughly regulated),
- the drinking water of 15 million people is threatened (not even close), and
- fracturing using other than water (e.g., CO2, natural gas, propane) might still be subject to DRBC regulation (ludicrous).
Most importantly, this justification for a DRBC fracking ban is a sham, as all four involved governors involved have already signaled their intentions, a fact that could very well render the entire regulatory process legally moot, a point I made earlier here. Nonetheless, these are the points that need to be made for the record and for a future legal challenge, as the ultimate decision on the DRBC fracking ban will be made in a hall of justice rather than the hall of shame the DRBC has erected for itself.