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?

The Most Important Day of the Year for Conservation Issues

Today, Election Day, is probably the most important day of the year for anyone concerned about conservation issues. Today is the day that each of us who are registered to vote have the ability to join together to shape the future debate on matters such as Smart Growth, protection of fisheries, endangered species preservation, and whether gas drillers should have to pay a tax on the volume of natural gas they produce (like they do in every state except Pennsylvania).

I think Election Day is pretty darn exciting. Aren't each of us somewhat honored when our peers ask for us our opinion about something (other than when telemarketers are doing surveys)? I love having the opportunity twice a year to go into a voting booth and cast my ballot for issues I think are important and for candidates who I think will champion the issues that I feel are important. 

Today is the day that each of us has the opportunity to go to the polls and vote for the candidate or candidates who are best aligned with our conservation ideals. How many people do you know who care deeply about environmental issues but fail to show up at the polls for every election? The percentages turnout of of registered voters vary by community around the country. In my municipality, it tends to range between 12-14%. Pretty poor.

I spent about an hour and a half this morning handing out campaign literature to voters arriving at a local polling station. I was hearing reports that turnout appeared to be pretty good (as of mid-morning) compared with recent general election years. The weather started out cold, but by midday now, it's party sunny and in the low 50's. So that could help boost turnout. It's sad that people in other countries would kill or die for the right to vote, and some of our own neighbors won't go vote if the weather seems inconvenient.

But I saw something this morning at the polling place that still has me scratching my head. Within 5 minutes of each other, I saw two cars pull in, each with a man and a woman. In both cases, the gentleman got out of the car and went inside to vote. Both women remained in their respective cars. One of them appeared to be doing her nails. The other one was reading a newspaper. These two women were 40 feet away from the door of the polling place, and they did not get out of the car and walk inside to vote. I don't get it.

It can be very time consuming and potentially frustrating to attend municipal and county commissioner meetings  a couple times a month to keep an eye on our elected officials and share our opinions with them. But two times a year, once in the spring and once in the fall, when we have the opportunity, the privilege, to cast our vote, why on earth would we not do so? Many folks complain that both major political parties have been taken over by extremists. That just means it's time for the average person to get out there to modulate who is getting elected to office. It's most crucial in local elections, because the local level is where the decisions are made that impact our daily lives. 

There are just under 7 hours remaining today to vote. If you have not done so yet, please get up, walk, bike, or drive to your polling place, and cast your vote. Because today is the day that your opinion matters the most.

Why Smart Growth is a Conservation Issue

Some readers who have heard the term Smart Growth might recall that the term somehow has something to do with zoning or deciding whether to build a new strip mall or similar sedentary activities.  And they might think, 'Why should I care about a new Walmart?  I just want to fish, or watch birds, or (fill in your favorite outdoor activity here).'

Stream Hugger has always been about interpreting conservation issues in a way that is relatable to the general public.  I hope this particular post will explain how certain land use decisions, even in already developed areas, can affect the environment in surrounding undeveloped areas.

Smart Growth is a land use principle that can be summed up in two words:  common sense. Instead of allowing unchecked sprawl in the hope of future prosperity and publicly funding infrastructure with no regard for its long-term costs, we need to call a time out.  Take a deep breath.  Get it through our heads that we are not in a big, imaginary race against the neighboring municipality to get built-out before they do so that we can get our share of the riches that developers always promise.  The ruse that we have to allow property owners to do what they want with their hundred-acre parcels in the name of "property rights" and "stimulating the economy" is hogwash, because every other property owner in that community has a right to not have their properties adversely affected by poorly vetted and illogical new development.

From the Smart Growth America website, "Smart growth means building urban, suburban and rural communities with housing and transportation choices near jobs, shops and schools. This approach supports local economies and protects the environment." Let's focus on how Smart Growth can protect the environment.

This big-box store has way more parking spaces than it needs,
which needlessly creates more stormwater runoff than it should.

Projects that are approved and built under Smart Growth principles tend to require less pavement than traditional projects. So more of the precipitation that falls on a parcel can soak into the soil to recharge groundwater rather than running off to a municipal stormwater system. For commercial developments, Smart Growth can mean requiring a realistic number of parking spaces rather than a cookbook number of parking spaces based soley on square-footage of the buildings. This reduction in parking space, as well as allowing new types of permeable paving options and encouraging green roofs, can result in significant decreases in stormwater runoff compared with traditional big-box development practices.

Smart Growth, however, is not just about what we build. It’s also about where we build.  Smart Growth encourages building more densely in already developed areas – building where the people already are. If we encourage development in areas in or near where people are already working, going to school, shopping, and playing, we can minimize the footprint of new development.  Concentrating the growth near existing uses helps to keep surrounding open spaces open so that they can continue to absorb and filter stormwater runoff as nature intended.

A recently published study showed that even modest increases in development density can significantly reduce water quality problems associated with development. The study, from the Chesapeake Bay watershed, found that when development was concentrated it required about half as much impervious surface as sparsely developed land and resulted in 43% less polluting runoff stormwater runoff.

By focusing development on already-developed areas we are also preserving wildlife habitat. Habitat loss is the main threat to 80% of the threatened and endangered species in the U.S. Focusing growth within an existing community, rather than outside of town on a greenfield, helps preserve wildlife habitat, protects water quality and avoids the costs associated with dispersed infrastructure.

Studies have found that smart growth development helps bird species flourish, with more birds and a greater diversity of species in smart growth areas than areas with dispersed development. Protecting open space, parks and farmland means strengthening existing communities, attracting businesses, and avoiding the costs associated with supporting dispersed infrastructure. Communities with well-maintained neighborhood parks and extensive park systems have been shown to consistently attract and retain businesses.

Smart growth offers aesthetic and economic advantages for our communities. And it can protect wildlife habitat and water quality in the undeveloped areas that we rely on for rest and relaxation. We need to demand that our municipal officials get on board with Smart Growth principles.