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Public Trusts: Proposed fracking under Deer Lakes Park could run afoul of state constitution

 

"It would be prudent for the county to investigate those questions"

In the 1980s, when John Dernbach was a lawyer and special assistant for Pennsylvania's Department of Environmental Resources, the agency's offices featured posters trumpeting the Commonwealth's Environmental Rights Amendment. The 1972 addition to the state's constitution guaranteed a right to clean air and pure water. "Pennsylvania's public natural resources are the common property of all people, including generations yet to come," reads Article 1, Section 27. And the trustee of these resources, it adds, is the Commonwealth itself.

"Three really nice sentences," Dernbach remembers thinking. "Wouldn't it be nice if the courts treated them like law?"

Mostly ignored for 40 years, the amendment resurfaced dramatically in December, when the state Supreme Court scrapped major provisions of Act 13, the state law governing gas-drilling in the Marcellus Shale. Dernbach's scholarship (he's now a law professor) figured in that ruling — a decision that might have bearing on Allegheny County Executive Rich Fitzgerald's drive to drill for gas under the county's Deer Lakes Park, located in Frazer and West Deer townships.

On March 17, Fitzgerald announced he'd reached a tentative lease agreement with gas giant Range Resources and leasing agent Huntley & Huntley to drill under Deer Lakes. No wellpads would go in the park itself; Range would use neighboring wellpads to drill horizontally beneath the park. Shale layers would then be hydrofractured — a process in which rock is broken up by the high-pressure injection of water and chemicals, freeing gas deposits.

Before the lease can be executed, the deal must pass Allegheny County Council. While Fitzgerald had yet to make the final lease public at press time, he promises a $4.7 million bonus payment to the county, the creation of a $3 million park-improvement fund, and royalties he estimates at $3 million a year for the 30-year life of the lease.

The 1,180-acre park is named for its spring-fed lakes, and the county's website touts it as "a paradise for fishermen."

Activists denounced the deal as misguided and environmentally risky, especially the threats of air and water pollution. And some predict that the Act 13 ruling — and Article 1, Section 27 itself — will help activists derail the proposal.

Mel Packer, of anti-drilling coalition Protect Our Parks, says that in case the lease goes through, "We're talking to lawyers."

The parks are a public trust, and "the government is limited by the constitution in what it does with trust resources," says Jordan Yeager, one of the attorneys for the plaintiffs who won the Act 13 fight. "When you are engaged in [fracking], you are ... injecting toxic chemicals into those public resources," says Yeager, of Doylestown, Pa.-based firm Curtin & Heefner.

John Smith, another plaintiff's attorney in the case, says that until now, government decisions about drilling have considered only revenue.

"There was never a question about the health and safety," said Smith at a March 12 panel discussion. Under the Act 13 ruling, however, governments must consider, "Do my actions further constitutional objectives?" says Smith, of Smith & Butz, based in Washington County.

Dernbach, who teaches at Widener University, says it's unclear whether a lease that disallows well pads on a parkland proper would violate Article I, Section 27. Still, "it would be prudent for the county to investigate those questions" before approving this lease, says Dernbach, whose scholarship Chief Justice Ronald D. Castille cited seven times in his Act 13 ruling.

Fitzgerald touts lease provisions for testing groundwater near wells accessing Deer Lakes. But critics call such provisions insufficient. "All he's saying is, ‘If there's a problem, we are more likely to catch it, maybe,'" says Adam Garber, of Penn Environment. "If he was about keeping the park safe, we would do everything to minimize drilling near the parks."

Another issue is the county's plans for spending gas revenue. Under public-trust criteria, all such revenue must help conserve or improve trust lands themselves, says George Jugovic, chief counsel for environmental group PennFuture. But despite Fitzgerald's argument that drilling revenue is the best way to refurbish the park system's battered infrastructure, the county executive proposes feeding the vast majority of the money into the general operating budget.

"There's a real concern that this violates the constitution," says Jugovic. "Our concern is more based on principle and this trend of shifting funding of government operations on the backs of things that were intended to be conserved for future generations."

"I think [Fitzgerald's spending plan] would leave the county vulnerable" to a lawsuit, agrees Dernbach.

In 2012, the Pennsylvania Environmental Defense Fund sued the Commonwealth over gas revenue from state forestland, claiming that the state fattened the general operating budget with $600 million that should have aided conservation efforts instead. A decision from Commonwealth Court is expected shortly, says PEDF attorney John Childe.

Allegheny County officials sound unconcerned about the possibility of legal action over Deer Lakes. "We feel very comfortable that we're going through the necessary steps to address any concerns that would be raised in a lawsuit," says county solicitor Andrew Szefi. Szefi emphasized that the Act 13 decision was not a majority ruling: Of the six justices who weighed in on the case, only two others backed Castille's reliance on the Environmental Rights Amendment. That may weaken its power to set a legal precedent.

Other Pennsylvania municipalities have leased parkland for drilling. Washington County's Cross Creek Park, for instance, already hosts wellpads. But Allegheny County would be the largest local government to do so, and activists especially distrust Fitzgerald. During his campaign for county executive, county records show, he accepted lots of gas-industry money, including nearly $20,000 from political-action committees or executives associated with Range and Huntley & Huntley alone. Huntley executives contributed another $10,000 to Fitzgerald in 2013.

Neither has some of Fitzgerald's rhetoric inspired confidence among environmentalists. At county council's March 18 meeting, he told councilors, "We're lucky to partner with a good company like Range." At a March 12 panel discussion on fracking, before a vocally anti-drilling audience, he said that "hopefully" state regulators will police the wells properly. "Hopefully," he added, "we learn from some of the past mistakes with our air quality, our water quality."

"‘Hopefully'?" piped up someone in the crowd.

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