I apologize for the delay in posting these notes on the February 24, 2010 Delaware River Basin Commission’s (DRBC) Public Hearing at which two applications by Stone Energy were considered. (Like most of you, we’ve been trying to find our driveway and a couple of buried vehicles.) For a better understanding of the comments reported here, please View Draft Dockets D-2009-013-1and D-2009-018-1.
All but five speakers who addressed Stone Energy’s applications opposed them. Virtually all those opponents asked the Commission to impose a moratorium on gas drilling until the cumulative impacts of the industry’s activities could be studied.
Small business owners testified that they were hesitant to build or expand enterprises in the Delaware River Basin for fear of the adverse economic impacts of drilling and hydraulic fracturing.
Susan Blenkensap stated, “My neighbor is a lifelong resident. She had a real estate agency for 30 years. She closed her doors because she couldn’t, in conscience, sell property to people when the land is under threat of drilling.”
- Ryan Wood-Beauchamp was concerned about property values. “What if we can’t sell our homes? And what about the FHA [Federal Housing Administration]?” (It was an allusion to FHA rules which state, “No existing home may be located closer than 300 feet from an active or planned drilling site. If an operating well is located in a single family subdivision, no new or proposed house may be built within 75 feet of the operating well.”)
Jessica Corrigan owns an outdoor experience business. “Our house burnt down,” she said. “We don’t know what to do. Should we rebuild under this threat?
One landowner who has joined the Northern Wayne Property Owners’ Association — an organization that supports drilling and claims to represent 80,000 leased acres — says he has not leased and lies awake at night hoping that drilling does not come to his area.
- Al Benner is contemplating developing an organic farm but he’s “hesitant to do it. People aren’t thinking about the long term impact on our quality of life. We have hundreds of summer camps. That revenue will be wiped out if reports surface about benzene and toluene in the water up here. Drilling could decimate this region for generations.”
Like many other speakers, Greg Schwartz, an organic vegetable farmer in the Upper Basin insisted the Commission quantify all the potential drilling operations in the Basin. “If you don’t make a decision about the cumulative impacts, you will abrogate your legal responsibility to the Basin and that would be actionable. I am an organic vegetable farmer. I rely on biologically healthy soil. I’m afraid drilling will destroy my business. I urge you to resist today’s political pressure.” (Breathing has presented information on the growth of organic farms nationally and in New York State.)
Bernard Handler addressed Stone Energy’s documented illegal activities in the Basin, “Stone Energy has already violated the rules of the DRBC by drilling in The Basin without permission. They were also non-responsive to the Commission’s requests to respond, ignoring letters, etc. Now they come with hat in hand and we are supposed to believe they are the good guys. They have already set up a drill pad, drilled 8350 feet, transported toxic water out of The Basin and buried drill cuttings underground without following the DRBC’s guidelines.”
A DRBC press release on 6/9/08 “announced that [the DRBC] has informed Stone Energy Corporation that it will need to apply for and receive approval from the Commission before it can extract natural gas in Wayne County, Pennsylvania…”
The letter was an official statement from the DRBC that Stone Energy had violated DRBC regulations by commencing drilling without obtaining DRBC’s approval.
DRBC’s own Docket No. D-D-2009-18-1 says that Stone Energy drilled the vertical well on a date uncertain “between May 9, 2008 and June 2, 2008.” Because he DRBC’s knowledge of many of the well’s specifications is not first-hand, the Commission has been forced to rely on Stone Energy’s application which “indicates it was constructed in accordance with PADEP [Pennsylvania Department of Environmental Protection] Chapter 78 Subchapter D regulations.” There is nothing in the Docket describing the diligence or scope of PADEP’s oversight of Stone Energy’s construction of the well, the company’s subsequent withdrawal and transport of toxic water, nor its burying of its drill cuttings.
Because drill cuttings are recognized as a source of toxins, The Pennsylvania Legal Code describes the required disposal procedure.
It is also important to note that as a matter of law, the DRBC’s rules supersede Pennsylvania’s Department of Environmental Protection.
According to the Docket, on June 6, 2008, “the DRBC requested that an Application for the M1 Well Site be submitted to the Commission for review and approval.”
Four months later (December 2008) after “Stone drilled and cased the M1 well without Commission approval, a settlement agreement between Stone and the Commission required Stone to submit an application to the DRBC for review and approval of the well and to pay a fine as specified in the settlement agreement.” According to The Upper Delaware Council’s meeting minutes from March 5, 2009, Stone Energy paid a fine of $70,000. The well was capped before gas was extracted. (See faulty well casings cited in Ohio house explosion.)
Finally, two months later (February 13, 2009) “Stone submitted an application to the Commission for approval of the existing M1 Well” and this past Wednesday, Mr. Handler’s outrage that the DRBC would consider granting two applications by Stone Energy was echoed over and over again by Hearing attendees. “After all, how can the DRBC even consider approving an application from a corporation which has already treated the Commission, its rules, The Basin and its environmental health with such disdain. To even hold a hearing on the application makes the DRBC complicit in rendering itself ethically and, perhaps, legally irrelevant,” said one speaker.
One man who lives within a few miles of the existing well was overcome by emotion and was unable to complete his statement which began, “It’s upsetting to me how our community’s being divided, neighbors against neighbors. It’s about the companies being given leeway to run roughshod over everybody. I’m not angry at my neighbors for leasing their land. We’re all having a tough time. But if you’re going to lease the land, at least accept there’s some dangers here. I see people shaking their heads about proven damage that’s happened. At least accept that if you lease you’re taking a risk. I’m pissed. Taxpayers fund these corporations.”
Marian Schweighofer, founder of the Northern Wayne Property Owners’ Association and an advocate of gas drilling and hydraulic fracturing, supported approval of Stone Energy’s applications. Holding up a map of Wayne County, she announced that her membership represents 80,000 leased acres. She addressed the issue of “inverse condemnation” which prevents landholders from leasing their mineral rights but does not provide them with compensation for the resultant loss of revenues and reduction in the value of their properties. In fact, her sentiments have been echoed by New York State Senator John Bonacic, in response to New York City’s demand for a moratorium on drilling in the New York City Watershed, “Let them buy the development rights,” he says. “For those landowners who want to sell their gas rights, let the City pay the same market rate to keep the land undeveloped. We buy agricultural development rights for tracts of land we want to preserve. Let those who oppose the lawful exploration and extraction of gas in the Catskills (do the same).”
Opponents of compensation believe Bonacic’s idea is an open-ended scheme with a wide range of unintended consequences. For instance, Cliff Westfall asks in a reply to Ms. Schweighofer, “What if I decided to burn down the woods on my land, claiming it was the cheapest way to clear a field, with no concern for preventing its spread to my neighbor’s house? Of course the government could regulate that. The bottom line is this: the government may prevent you from doing things on your property when those actions would harm public welfare.”
Fracturing fluids injected underground may travel as much as 6,000 feet. Their direction is neither predictable nor controllable.
Although the Fifth Amendment of the Constitution
ensures against ” private property [being] taken for public use, without just compensation,” courts have generally supported the common good over the pecuniary benefit of a few. In Penn Central Transportation Co. v. New York City
, The U.S. Supreme Court held, among other things, that “In a wide variety of contexts, the government may execute laws or programs that adversely affect recognized economic values without its action constituting a ‘taking,’ and, in instances such as zoning laws where a state tribunal has reasonably concluded that ‘the health, safety, morals, or general welfare’ would be promoted by prohibiting particular contemplated uses of land, this Court has upheld land use regulations that destroyed or adversely affected real property interests.” *
- Sandra Folzer owns a 50 acre farm in Tioga County and was offered 250 thousand dollars to sign a lease. She refused. “Water is more important than gas. I can’t drink gas. My neighbor is pushing me to sign but fracking is not tried and true. Fracking the shale has only been happening since 2005. New Mexico has to tank in all its own water. Aquifers are being depleted in Florida. Mexico City is sinking because too much water is being taken from its aquifers. Israel buys its water from Turkey. Remember the Alamo? It’s dried up.”
- One speaker said, “Everyone talks about their rights. They don’t talk about their responsibilities, though.”
A bus load of residents traveled three hours to comment at the hearing and were adamant that the DRBC schedule additional hearings in the Lower Delaware River Basin. “Philadelphia gets all its water from The Basin,” was a common refrain.
Tanyette Colon said she is a mother first and foremost. “Norway and Italy are in Pennsylvania subsidizing fracking efforts but they won’t allow it in their own countries. If this application is granted, it will send a message to gas companies that it’s okay to illegally drill wells because they’ll get a slap on the hand but ultimately get their way. Residents of Pennsylvania don’t deserve it.”
Several speakers addressed the environmental impacts of Stone Energy’s applications on The Lackawaxen River which was named “Pennsylvania’s River of the Year” by the Department of Conservation and Natural Resources. Joe Zenes carried a picture of the proposed withdrawal site and, while waiting for the Hearing to begin, worried what Stone Energy’s proposed minimum 5.9 cubic foot per second (cfs) stream flow would do to the stream. “It’ll disappear,” he grunted. “It’ll be a trickle.”
- David Jones who owns and operates Kittatinny Canoes, supported Stone Energy’s plans and suggested allowing greater withdrawals when the Lackawaxen is running higher. “Store it when there’s more volume. This project is the start of something. The world, the country, our area needs this industy. This is our future. It will save our area. It’ll protect it from development. Let’s not forget about private property. It’s our right to harvest it. Lengthy studies are a delay tactic. Let’s study every single industry that takes water from the basin. Why just gas drilling? I depend on this water for my livelihood. New York City wastes 100 million gallons of water regularly. This withdrawal represents an olympic size swimming pool. Dockets are approved all the time. This is discrimination.”
Bruce Ferguson responded to Mr. Jones’ claims that lengthy studies are the reason for delays. “The [gas] industry is slowing down the process. Let studies go forward so we can move forward. The [Fracturing and Awareness of Chemicals Act] would restore protections we lost in 2005. It’s a very modest piece of legislation and it’s being fought tooth and nail by an industry that simultaneously claims fracking is perfectly safe.”
*Practically speaking and considering New York State’s 8.8% unemployment rate (10.4% in New York City) should taxpayers be forced to underwrite landholder compensation for mineral rights just as Congress launches an investigation into gas drilling practices and their potential harm to the environment?
(Inverse Condemnation is not a simple issue and Breathing would very much appreciate Ms. Schweighofer amplifying her point of view in an article that will be published in its entirety. Likewise, Mr. David Jones and I spoke for a quarter hour or more during a break in the Hearing and I’ve asked him to submit an article which I will publish as written. I think we would all benefit from their contributions to this forum. I would also like to express my appreciation to Mr. Jones for his attendance at The Light Up The Delaware River Party. Most attendees were decidedly against drilling in The Basin and he should be congratulated for joining us. Kudos, Mr. Jones!)