The gap between theory and practice

Let’s face it. It would be great if we could have natural gas drilling come into our area, trailing behind it a train of royalty dollars and jobs, and to have the activity so well regulated that no damage was done to water, air, wildlife, neighboring property values, roads, viewshed, fish habitat or natural beauty.

Is that possible? Simply put, no—even good regulation will not manage the challenges of this industrialized activity—but we can insist upon remediation for damage that is minimized, mostly reversible, and paid for by the drilling companies. To get anywhere close to that target, regulation has to be not only well conceived but strictly overseen and enforced, with consequences for noncompliance that make it uneconomic for companies to do anything but stick to the rules.

As a previous editorial pointed out, there are weaknesses in the SGEIS recently released by the New York State Department of Environmental Conservation (DEC) with regard to air quality, and there are shortcomings with regard to the protection of water and other factors as well, especially with regard to cumulative impact. But even if all these concerns were addressed, there would be a more fundamental problem.

As noted in the article on page 4, according to Earthjustice’s Deborah Goldberg, the restrictions included in the SGEIS are not hard and fast rules but “permit conditions.” Whenever a permit is applied for, the DEC has to go through the list and see if the conditions are met—but the company can still come up with some reason as to why it shouldn’t have to adhere to any given condition, and the DEC can waive the condition and grant the permit at its discretion.

Some have argued that Goldberg is exaggerating the ease with which conditions can be waived. But if she’s anywhere close to right, this could be a huge loophole, regardless of the qualifications and moral fiber of the people who currently staff the DEC. The reason we are a nation of laws, and not a nation of suggestions, is that from time to time the people who occupy any given post, whether elected, appointed or bureaucratic, will be scoundrels or fools—or maybe just deluded. The DEC is not immune from this general principle.

What makes this risk even more serious is the revolving door that exists in this country between regulatory agencies and the companies that they are supposed to oversee. The problem has been particularly severe at the Federal level (see Monsanto and the FDA, Goldman Sachs and the Federal Reserve), but can occur on a state level as well. And if regulators can get cushy jobs with one of the companies they are regulating, the incentive may become overwhelming to grant those companies the exceptions they request.

So not only do safeguards need to be added to those included in the SGEIS, but most of those safeguards, like the requirement that flowback be stored in steel tanks, not lined pits, need to be made mandatory. That could mean passing new agency rules—hard and fast rules—through a public rule-making process, or if the regulatory agencies are not willing to do that, maybe it means passing new laws.

Another problem, on both sides of the river, is regulatory staffing. Even with rules in place, they will be useless unless there are enough people to provide meaningful oversight for the thousands of well sites expected. As of last year, the Pennsylvania Department of Environmental Protection’s (DEP) Bureau of Oil and Gas Management had only two inspectors to monitor new gas drillings in the eastern region of the state. More hirings are expected, but there’s a long way to go. And with state budgets tight, the funding to obtain adequate staff is getting ever harder to come by.

The final piece of the puzzle is consequences. A sternly worded letter won’t do the job, probably not even with a six-figure fine. In fact, the extraction industry in this country has a long record of simply breaking rules, then either paying any fine or, if it is too large, delaying the fine for decades, cutting it down to a pittance in court, or even simply stiffing the government for some or all of it—all techniques used in the case of the catastrophic Exxon Valdez oil spill.

Brad Gill, a director for the Independent Oil and Gas Association of New York, in an article at legislativegazette.com, addressed environmental concerns with the observation, “Our DEC is extremely tough.” Such statements are not enough. We don’t need to be told that the DEC, or Pennsylvania’s Department of Environmental Protection, are tough. We need to be shown that they are tough. We need to see that the rules will be tough—and not negotiable—that oversight will be tough, that enforcement will be tough and that penalties will be tough. So far, we are far from convinced.

Dr. Punnybone

Junk Male