PA Supreme Court Rules on Act 13 Gas Drilling Law

You may have heard that the Pennsylvania Supreme Court recently overturned several key provisions of the state’s controversial Act 13 law which regulates the oil and natural gas industry. Act 13 was enacted in 2012 as a comprehensive update to the state’s oil and gas law to reflect the current activity in the Marcellus Shale natural gas play that underlies a broad swath of PA. Because I’ve written in the past about issues I have with the state of natural gas drilling in the Keystone State, I thought I should comment on the December 19 Supreme Court decision.

I don’t dispute that PA’s oil & gas laws needed to be updated to reflect the unprecedented expansion of natural gas exploration and extraction of Marcellus Shale natural gas over the past 6 years. While a few elements of Act 13 were reasonable updates to the oil & gas law, some elements simply went off the deep end. Just as our U.S. Congress often tries to sneak provisions that favor a particular interest into otherwise good, commonsense legislation, the PA Legislature and Governor Corbett got away with sneaking some pro-industry garbage into Act 13.

One of my biggest problems with Act 13 was that it allowed the gas industry to override local zoning laws. So a gas company could conceivably have drilled in a residentially zoned area or a pipeline company could have built a compressor station or a pipeline right next to a school or daycare center. Many Pennsylvanians who don’t live in the Marcellus Shale regions did not realize that this provision of Act 13 could directly affect them if a natural gas pipeline was someday proposed to cut through their community to transport gas from the gas fields to out-of-state destinations. Fortunately, that zoning override has been declared unconstitutional.

Act 13 also contained a provision many physicians interpreted as a gag rule. While physicians could request lists of chemicals used in gas drilling, including proprietary chemicals claimed to be trade secrets, many doctors felt Act 13’s language did not adequately protect them from legal action by gas companies if they shared the chemical information with their patients potentially exposed to drilling chemicals or with other physicians to collaborate on diagnoses and treatment for patients. When a Pittsburgh physician challenged this provision of Act 13, the Commonwealth Court earlier this year ruled that the doctor had no standing to challenge the provision, because he had not actually requested chemical information from drillers or been blocked from communicating such information to his patients. In their Act 13 decision, the Supreme Court determined that the Pittsburgh doctor has legal standing to challenge the law and sent the case back to Commonwealth Court to reconsider.

State Senate President Pro Tempore Joe Scarnati and House Speaker Sam Smith, both Jefferson County Republicans, released a joint statement saying they were “stunned” by the high court’s ruling and warning the ruling would "harshly impact the economic welfare of Pennsylvanians." I sense that Scarnati and Smith are really only concerned about the present day economic welfare of gas companies and are paying no regard to the potential adverse legacy of the current Marcellus Shale exploitation for Pennsylvanians. PA does not have a favorable track record of energy companies sticking around to clean up their messes after extraction of their target commodity has reached its limit of economic viability. When this gas play is depleted in 20-30 years, will the state be left to clean up hundreds of drilling pad sites around the state using inadequate funds from the performance bonds the drillers had posted decades earlier?

Photo of coal mining spoils in Pennsylvania from Abandoned Mine Reclamation Clearinghouse website (www.amrclearinghouse.org)

Take a drive through PA’s coal regions today, and you’ll still see gaping scars on the landscape where many coal companies, after they had mined-out the coal deposits on their lands in the first half of the 20^th century, abandoned their responsibility to repair the landscape and mitigate the acid mine drainage they had created. The state is still spending public funds to remediate the legacy environmental pollution from irresponsible coal companies.  The rush to tap into and bring to market the Marcellus Shale’s vast natural gas reserves has created the potential for similar corporate recklessness under the mantle of energy independence (which is BS – read what I wrote previously about exporting PA’s natural gas overseas).

I think one of the best results of this ruling was Chief Justice Ron Castille calling a spade a spade: "By any responsible account the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and the future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction."

Castille added that although the state has potentially broad regulatory powers, those powers are limited by PA’s Environmental Rights Amendment. He was referring to Article I, Section 27, of the PA state constitution, ratified by PA voters in 1971:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

Hopefully this Supreme Court ruling will frame how the public’s environmental rights will be interpreted for future generations of Pennsylvanians, effectively stripping the football from special interests and making them play defense going forward. Hopefully.

No Sidewalks: Can't Get There From Here

While I was writing my previous Streamhugger post about Black Friday Parking, I began to to digress about another issue that was glaringly evident when looking at an aerial photo of the mall where I took photos of vastly underused parking lots. So I figured I better save that rant for a different post. So here is that post about sidewalks, as inspired by the lack thereof around South Mall at the south end of Allentown, PA.

 South Mall property, as currently developed, literally straddles the municipal line between the city of Allentown, and Salisbury Township. Originally farmland, it was first developed commercially in the early 1970s with a lone department store, and the mall grew around that anchor store through the 70s and the 80s.

(Image from Google Maps, annotated by author)

The residential development abutting the mall to the north, Allentown’s Alton Park, was built mostly in the 40s and 50s. The residential development to the west was built in the early 1990s, and the homes to the southwest were built in 1980s. I’m sure the developers for the neighboring homes built in the 80s and 90s used the proximity to a shopping mall as a selling feature. So why then would the developers not have the foresight to build sidewalks connecting to the neighboring shopping mall?

Sidewalk-less residential streets in the neighborhood

immediately west of South Mall.

Dead-end street in the Alton Park neighborhood immed-

lately north of South Mall. There is no pedestrian cut-

through. Only a tree line to separate the neighborhood

from the mall.

The answer to that question is probably that the municipality (Salisbury Township, in the case of the homes to the west and southwest) did not require sidewalks along their residential streets even though they were built adjacent to a large retail destination. With no sidewalks existing in the adjacent neighborhoods, I can almost understand why no one built sidewalks to connect these residential streets directly to the mall. Although, I do not think that omission was justified. In the case of the Alton Park homes, which lie north of and pre-date the mall, I’d assign that blame directly to the mall owner. They chose to plant a treeline along their common property boundary with the Alton Park homes rather than building short walking paths connecting three dead-end streets to the mall property. Blocking neighborhood access with dense vegetation – that seems like a pretty unwelcoming strategy for a retail shopping establishment.

For a municipality to not require sidewalks throughout residential developments and to not connect residential developments to shopping districts (or, in the case of South Mall, to an otherwise extremely conveniently located shopping center) is both short-sighted and incompetent. Not requiring sidewalks for whatever reason is like making the hugely inappropriate assumption people would prefer to rely on automobiles to make even the most basic shopping or social trips. That assumption strips residents of the ability to choose to walk or bike instead relying on automobiles, and 21^st century Americans deserve to have the ability to make that choice. The only parties who are served well by development decisions that make walking and biking inconvenient are the automobile and petroleum industries.

This woman is walking on the sidewalk-less street behind South Mall with her back to oncoming traffic. She is either brave or naive. Considering that she was wearing ear buds and apparently listening to music on her phone, I think that calling her naive might be sugar-coating it.

Black & Blue - Black Friday Parking Blues

Charles Marohn at the Strong Towns blog had a great idea last week when he asked followers of that blog to Tweet photos of Black Friday parking lots around the country with the hashtag “#BlackFridayParking.” The Strong Towns blog then ran a live feed of the results as lots of folks from around the country posted pics of vastly underused parking lots to help emphasize the need for reform of minimum parking standards.

Here are some shots I took at South Mall in Allentown, PA, around 9:30 AM on Black Friday. Not much going on there.

Front (east side) of Allentown's South Mall. Around 9:30 AM Plenty of

available parking. (photo by author).

South end of South Mall. More wasted spaces. (photo by author).

Who would even want to park here if the rest of the lot was totally full? This

photo is the side lot of the Ross department store shown in the preceding

photo. There is not even an entrance anywhere on this entire side of the

building. Wasted spaces. (photo by author).

My friend Ron Beitler took this photo in the early afternoon on Black Friday at the Caramoor Village strip mall in Macungie, PA. Again, overkill on the parking spaces. Ron also blogged about Black Friday Parking at: http://www.ronbeitler.com/2013/11/29/the-ridiculousness-of-minimum-parking-standards/.

Dozens of photos from other shopping centers around the country showed similar scenes – deserted asphalt at all but the couple hundred feet immediately surrounding big box stores and strip malls. I think Strong Towns had a great idea in organizing this Twitter event, because it hopefully will help to spark discussion around the country about how minimum parking standards waste both dollars and space, creating eyesores that are daunting to pedestrian traffic while they create unnecessary stormwater runoff. We all need to let our local officials know that we demand intelligent design standards for new developments and redevelopment projects.

I also will acknowledge that these #BlackFridayParking Twitter pics certainly do not constitute a scientific study of this problem. I don’t think that Charles Marohn intended this experiment to be anything more than an exercise in anecdotes.

However, these photos from around the country got me thinking back 30+ years ago to when I worked part time at the Sears store at Montgomery Mall near Lansdale in suburban Philadelphia. I remember jam-packed parking lots at the mall on Black Friday as well as in the evenings 3-4 days before Christmas Eve. I have to wonder whether the week before Christmas in the first dozen years of the 21^st century has continued to max out parking capacity at Montgomery Mall. Specifically, I wonder if the explosion of on-line shopping over the past 10 years has relieved some of the load on mall parking lots during the holiday shopping season. I’m not sure how a researcher could actually go back to look at parking density throughout holiday shopping seasons over the past 15 years to try to identify trends that could be correlated to the increasing popularity of or dependence on internet shopping (unless NSA would be willing to share some historic satellite images with us).

Frankly, I would be surprised if the advent of the on-line economy has not relieved some of the parking pressure at mortar & bricks retail establishments. And in that likely case, how crazy would it be for municipalities to continue to rely on minimum parking standards that were written for a pre-internet world?