Environmentalists are raising alarms over language slipped into a budget bill that would prevent the state Department of Environmental Protection from establishing its new draft rules on conventional oil and gas drillers.
“It’s very sneaky. It’s a dangerous pathway to go down,” says Matt Stepp, policy director for the environmental group PennFuture. “This would actually stop the regulatory process from occurring.”
The language was added over the weekend to the fiscal code– a companion piece of legislation necessary to implement the state budget. Lawmakers made a similar move last year, when they inserted language into the fiscal code requiring separate regulations for conventional and unconventional drillers.
Ever since Pennsylvania’s fracking boom began, smaller conventional drillers have complained they get unfairly lumped in with the deeper, unconventional Marcellus Shale wells. Arthur Stewart is secretary for the Pennsylvania Grade Crude Oil Coalition, which has lobbied for separate regulations.
“Our footprint is 35 to 45 times smaller than an unconventional well,” he says. “Would there have been any changes to conventional regulations had it not been for the advent of this enormous Marcellus development? That’s why we’re so frustrated.”
House Republican spokesman Steve Miskin says DEP regulators have failed to account for the differences between the two industries, which he compared to cars and trucks.
“You have your tractor trailers and your family sedan. They’re both vehicles, but they’re clearly different,” says Miskin. ”[DEP] basically cut and paste the unconventional rules and put them into the conventional rules.”
The DEP has spent four years revising its oil and gas regulations and held numerous public meetings. The draft rules, known as Chapter 78, must be finished by next March or the agency risks having to start the process all over again. Shortly after Governor Wolf took office, the DEP made a slew of significant changes– imposing more stringent rules for things like waste, noise, and streams. Both conventional and unconventional drillers have sharply criticized the agency for the updates.
But using the fiscal code as a way to stop the regulatory process raises legal questions, according to Joanne Kilgour, head of the state’s Sierra Club chapter. Under Pennsylvania’s constitution bills must stick to a single-subject and can’t have unrelated topics cobbled together.
“It’s discouraging to see the legislature continue to play games with the people of Pennsylvania and our environment,” says Kilgour. “Using the fiscal code as a way to push through unpopular provisions that were not considered by the full General Assembly and were not sunshined for the public to comment on is inappropriate.”
Just last week, the state Commonwealth Court struck down a law which allowed the National Rifle Association and other gun rights groups to sue Pennsylvania municipalities that enacted tougher gun ordinances. The bill had originally dealt with scrap metal theft. The court unanimously ruled the law, “clearly, palpably and plainly violates the single-subject requirement.”
Miskin does not think this process has lacked transparency and believes the drilling regulation language belongs in the fiscal code.
“Environmental groups get upset over any type of thing,” he says. “The budget drives out the money. The fiscal code is the direction sheet. We’re not saying ‘don’t regulate.’ We’re saying you have to separate the rules. We’re talking about different animals.”
It’s not clear how much the controversial language matters at the moment, because the Republican-controlled legislature and Democratic Governor Tom Wolf are at impasse. They will likely miss the June 30th state budget deadline. Republicans are preparing their own spending plan for the governor, which he has threatened to veto.
DEP Secretary John Quigley says even if the language makes it through, it won’t stop the agency from doing its job.
“If enacted, this would delay modernizing the regulations for conventional drilling, but it will not stop an update to the regulations, which haven’t been changed since 1984,” he said in an email. “If this fiscal code is adopted, it changes the timing but not the substance of the regulations.”
Note: this story has been updated to include a response from the DEP.