July 14, 2010
Floods, Famines, Earthquakes and the DRBC
Landowners, communities challenge Delaware River Basin Commission to explain rationale, authority behind denying opportunity of the Marcellus to Northeast PA
Translated literally from French it means “superior force,” but translated practically into American law, the term force majeure is a clause used by parties that encounter a situation so severe that it’s actually designated as an “Act of God” by the courts. Floods, famines, earthquakes, volcanoes – these are the kinds of events that trigger the rare invocation of the clause, allowing all parties involved in a contract to shield themselves of obligation in light of the extraordinary and unforeseen events that transpired after it was signed.
Actually, there’s one other event that has historically fallen under the rubric of force majeure: acts of war. Unfortunately, in the case of the West Trenton, N.J.-based Delaware River Basin Commission (DRBC), that’s precisely the action that was taken against landowners in eastern Pennsylvania last month, with the Commission instituting a de-facto, back-door moratorium on all activities within its sprawling jurisdiction even tangentially related to the development of clean-burning natural gas from the Marcellus Shale.
The upshot? This description comes from the June 30 edition of the Philadelphia Inquirer:
Two natural gas drilling companies have suspended most of their leases to develop Marcellus Shale wells in northeastern Pennsylvania after the Delaware River Basin Commission's decision to ban drilling in the river's watershed. … declar[ing] a force majeure - a situation beyond their control - because of the DRBC's June 14 decision to halt all drilling until it has adopted comprehensive regulations governing Marcellus Shale activity.
Of course, with potentially thousands of jobs at stake in the area – and millions of dollars in much-needed payments to landowners and state and local governments – folks who actually live and work in the Northeast PA counties affected by the DRBC promulgation aren’t exactly taking the decision lying down.
Case in point: Later today, the DRBC will hold a regularly scheduled hearing on a whole slate of issues related to regional water use and management, including a draft water withdrawal request from an energy operator in the area. Among the folks expected to attend? A busload of landowners from the Northern Wayne Property Owners Association (NWPOA), and from the information we’ve been able to glean from its website, the group is expecting a significant showing among residents in the area concerned by the implications of DRBC’s historic overreach on natural gas. To wit:
The Bus for the DRBC meeting in Trenton NJ on WED, July 14th 2010 will leave at 9:00 am from the middle school parking lot. That is the parking lot up behind the Honesdale High School and Middle School up on Terrace Street. … Please try to send a representative from your family if you can’t make it yourself. … We must speak up and encourage DRBC to get meaningful prudent regulations in place instead of all these stall tactics which get us nowhere.
Back in June, the Marcellus Shale Coalition released an issue alert on the DRBC moratorium decision, wondering aloud if the modern-day DRBC would have let George Washington cross the Delaware without first initiating a years-long review procedure aimed at stalling the process and ultimately executing a pocket-veto of the entire enterprise. Needless to say, the denial of energy and mineral rights to landowners across the border in Pennsylvania wasn’t exactly what the creators of DRBC had in mind 50 years ago when the commission was created.
Earlier this week, the MSC expanded on its previously stated objections to the DRBC moratorium in a letter sent to Commission director Carol Collier. You see, in extending its initial ban to include a moratorium on doing even the most basic things to test the future viability of natural gas wells in the affected counties, the Commission cited “the risk to water resources” as the reason for pulling the plug on exploratory work in the area. But as MSC president and executive director Kathryn Klaber makes plain in her letter to DRBC this week, no water would be put at risk under such an approach – and very little of it will need to be withdrawn from surface areas under DRBC jurisdiction:
Exploratory wells are used to assess the scope of a resource available for potential recovery. These wells are limited in number and do not have a substantial effect on the water resources of the Basin – the drilling of these wells does not use a high volume of water, does not generate a significant volume of wastewater, and is subject to stringent state standards applicable to well drilling and surface disturbance. In no comparable circumstance has the Commission sought to assert its review and approval jurisdiction.
Of course, if DRBC’s review and approval of permits in this context is considered appropriate, then “it likewise would be appropriate for the development of a multitude of projects over which the Commission, appropriately, has not sought to assert jurisdiction, such as malls, hotels, restaurants, and residential subdivisions,” according to the letter from MSC.
So why is natural gas so different? That question, unfortunately, is not one that DRBC has answered with any degree of specificity just yet –content instead to simply assert its primacy over the matter and issue sweeping, multi-state declarations with significant implications for the clean-energy future of Pennsylvania and the economic security of those who live here. Hopefully, with the help of groups like NWPOA, the Commission will soon find itself in a position to better understand that the actions it makes from West Trenton, N.J. have real-world consequences for residents in the Commonwealth.
Marcellus Shale Coalition | 4000 Town Center Boulevard | Canonsburg, PA 15317 | www.marcelluscoalition.org