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December 06, 2016
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No grandfathering

At one of last year’s Upper Delaware Council (UDC) meetings, Delaware River Basin Commission (DRBC) Executive Director Carol Collier was asked what the agency would do if it issued a set of permitting rules and subsequent studies revealed that the regulations were insufficient to protect the watershed from harm.
The question was asked in light of two studies already planned, which will investigate the cumulative impact of hydro-fracking and related natural gas drilling technologies: the DRBC’s own study, to be carried out by the USGS, and another one to be undertaken by the EPA.

Collier’s response was that the DRBC could always adjust the rules as necessary in light of subsequent evidence. Unfortunately aquifers, once damaged, frequently cannot ever be put right, meaning that such belated adjustments might very well come too late to prevent irremediable harm.

Nevertheless, in December the DRBC went ahead and issued a set of draft regulations for natural gas drilling in the basin before the scientific investigations had even commenced.

The regulations are on track to be finalized this spring, and there’s probably not much we can do to stop them or the potential damage they may permit. But there is at least one thing we can do to mitigate harm: insist that there be no grandfathering with respect to any changes needed in these prematurely crafted regulations.

Grandfathering is the time-honored default in situations in which laws or regulations become more strict: individuals and companies who have already started to engage in the activities in question under some original, more permissive set of rules are allowed to continue to do so. And in many cases this makes sense.

People should not be penalized for investing in an activity when, at the time they make the investment, these activities are regarded as acceptable and legal, and sanctioned as such by the authorities.

If the DRBC ever attempts to tighten up its regulations, we can be sure that the industry will argue along these lines, and that a “compromise” will be proposed that would allow any operations that exist at that time to be grandfathered in as immune from the altered rules.

But in this case, such a procedure is unacceptable. In this case, both the authorities and the industry know that scientific studies are planned to determine the extent of the dangers posed by the activity in question, and that the initial set of rules has been established in a state of ignorance.