Environmental Law ReSource : Environmental Lawyer & Attorney : Reed Smith Law Firm : Climate Change, Sustainability

This post was written by Jennifer Smokelin.

Durban, South Africa is the setting for the 17th Conference of the Parties (COP 17) to the U.N. Framework Convention on Climate Change (UNFCCC). The two weeks of meetings will draw representatives of 194 countries and nearly 12,000 delegates. The delegates are expected to include several heads of state and government, ministers, UN officials, members of civil society and journalists. COP 17 is scheduled to run until December 9.

The COP 17 agenda includes efforts to make progress on a new commitment period for carbon reduction under the Kyoto Protocol and to provide assistance for developing nations facing the worst effects of climate change. Nonetheless, COP 17 is not expected to make much progress on either agenda item. In the current global economic crisis the linkages between emission reduction and economic growth will make any progress on emission reduction a hard sell for politicians and governments back home. Given the likely failure to achieve these big-ticket agenda items, what accomplishments can we expect in Durban? According to the UNFCCC, the discussions will seek to advance, in a balanced fashion, the implementation of the Framework Convention and the Kyoto Protocol, as well as the Bali Action Plan, agreed at COP 13 in 2007, and the Cancun Agreements, reached at COP 16 last December. What does that mean? Delegates in Durban will be addressing relatively small and, to many, arcane questions of process and finance. Negotiators, having entered the United Nations climate talks at Copenhagen two years ago with grand ambitions and having left with disillusion, are now defining expectations down and hoping to keep the process alive through modest steps. Last year in Cancun, Mexico, delegates produced an agreement that set up a fund to help poor countries adapt to climate changes, created mechanisms for the transfer of clean-energy technology, provided compensation for the preservation of tropical forests and enshrined the emissions reductions promises that came out of the Copenhagen meeting. Delegates in Durban will look to produce similar outcomes.

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This post was written by Siobhan Hayes.

The UK Environment Agency published the first Performance League Table under the Carbon Reduction Commitment (Energy Efficiency) Scheme (‘CRC’) earlier this month. One of the ideas behind the CRC is that organisations will be motivated to improve their energy efficiency (and therefore their carbon emissions) because its will reduce their energy costs and allow them to be well placed in the CRC performance league table. The league table is said to rank the energy efficiencies of each of the participants. As discussed below, it is debatable whether it reveals anything really significant this year, although it is possible that it may do so over time.

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This post was written by Luke Liben and Nicolle Bagnell.

This past Thursday, in a hearing titled "Fostering Quality Science at EPA: The Need for Common Sense Reform," Republicans on a U.S. House of Representatives energy and environment panel criticized a recently released U.S. Environmental Protection Agency plan to study any potentially detrimental effects of fracking on drinking water supplies. Perhaps informed by Secretary Krancer's Capitol Hill testimony from the day before, the Republican panel members were quick to point out that roughly 1.2 million wells have already been drilled using this technique, and there has yet to be a documented report of drinking water contamination. As such, these committee members found the EPA's suggested use of government funds to be lacking in common sense. The EPA responded by noting that until studies were done, or evidence of detrimental effects were sought, it was clear that no such evidence could be found. You can find more information here.

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This post was written by Luke Liben and Nicolle Bagnell.

Last week Secretary Michael Krancer of Pennsylvania's Department of Environmental Protection testified before the U.S. House of Representatives' Subcommittee on Water Resources and Environment regarding his stance that federal intervention was unnecessary to aid state regulation of hydraulic fracking processes. Citing the unique geographic and geologic features of each individual state where fracking was taking place, Mr. Krancer stated that a "one-size-fits-all" approach would not be appropriate to ensuring safe and practical fracking procedures. Secretary Krancer also made the Subcommittee aware that despite the roughly 1.2 million wells that have been drilled using this process, there has yet to be a report of drinking water contamination. Mr. Krancer cited this process as yielding both jobs and cheaper energy costs, and reiterated his stance that the individual states were doing a good job with their own regulatory regimes. For more information, click here.

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This post was written by Jennifer Smokelin and Nicolle Bagnell.

By a vote of 107-76, the Pennsylvania House of Representative approved a Marcellus Shale impact fee and regulatory measure yesterday, House Bill 1950. Under the House version, counties would be allowed to implement a fee on producing wells at a rate of up to $40,000 per well in the first year and decreasing annually to $10,000 in years four through ten. The House bill includes environmental provisions, including a measure that would increase the setback distance between a well and any nearby waterways or buildings, as well as an increase in bonding requirements and penalties, and increase the required information to be released on hydraulic fracturing chemicals. Similar to the Senate bill that was passed earlier in the week, the House bill would set a state standard for local zoning ordinances related to oil and gas operations, and authorize the attorney general to determine whether municipal rules go too far. Find more information here.

As referenced above and as we reported earlier this week, the Pennsylvania Senate also passed a bill this week that would enact a slightly heftier impact fee and address certain environmental concerns. Differences between the two proposals will be reconciled over the next few weeks in an aim to get a bill to the governor's desk before session end in mid-December.

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This post was written by Jennifer Smokelin and Nicolle Bagnell.

The Pennsylvania Senate approved an impact fee as well as other regulatory measures with regard to drilling in the Marcellus shale by a vote of 29-20. The Senate bill is the first comprehensive legislation on natural gas drilling to be approved in the Senate since the Marcellus Shale boom began. The measure would assess a decreasing fee of $50,000 per well annually, strengthen environmental regulations, and allow for the attorney general's office to review local zoning rules related to natural gas extraction. Measures proposed earlier this week were unsuccessful including measures to rearrange how that fee is assessed and its revenues distributed, increase bonding requirements, and prevent state involvement in local drilling rules. The Senate bill was widely and lengthily debated.

The focus now shifts to the other chamber as the Senate bill heads to the state House of Representatives. The House is also separately engaged in a debate over its own a drilling oversight measures this week and is expected to vote on their measure by week's end. House lawmakers approved an amendment on a vote of 110-85 that incorporates the zoning standardization approach contained in the Senate bill. Read more about the legislation here.

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This post was written by Jennifer Smokelin and Nicolle Bagnell.

Are the Pennsylvania House and Senate setting up to pass legislation to assess an impact fee on natural gas drillers and strengthen oversight of the industry by week's end?

On Monday, legislation to assess an impact fee on natural gas drillers was approved by a key Pennsylvania state Senate panel. It is headed for a final vote in the Senate chamber today. The new state-assessed impact fee would levy an initial base cost of $50,000 per well, which would decrease annually until year 11 of production. Year 11 through year 20 of production would then cost $10,000 per well. The levy would increase if natural gas prices went up. The fee proposal would raise $94 million from wells that were producing this year and would rise to $155 million next year.

Across the Rotunda in Harrisburg, the state House of Representatives began debate on potential amendments to the House's proposed drilling impact fee and regulatory measure. Discussion on the House-drafted measure is expected to continue this week in an effort to pass legislation by the end of the week.

The debate on these Senate and House measures focuses on the amount of the impact fee and how much deference is given to local zoning laws regarding drilling. Democrats tend to voice opposition to allowing state government to determine whether local drilling rules via zoning are reasonable. Republicans and Governer Corbett's administration, however, favor an approach that would entirely preempt local regulation of drilling operations, arguing that standardized rules on a state level would encourage natural gas companies to continue creating jobs in Pennsylvania. Additional details are here.

Stay tuned this week for follow-up on this breaking legislation….

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This post was written by David Wagner.

The Pennsylvania Department of Environmental Protection (DEP) released its findings yesterday on improving DEP’s statewide consistency when conducting site inspections at well sites, enforcing DEP regulations and tracking compliance. DEP also released a new Surface Activities Inspection Report that will be used statewide when conducting surface-related inspections or investigation activities. DEP indicated that it is simplifying the electronic data entry system used for violations, known as eFACTS, and developing a field manual for staff. Moreover, plans are in the works to increase the number of compliance staff in each region’s Office of Oil and Gas Management and to provide the industry with additional compliance assistance information.

As part of the initiative, members of an internal DEP review team from Harrisburg and the regional offices (Southwest, Northwest and North Central) that regulate oil and gas activity tracked and evaluated inspection data and enforcement actions taken for Marcellus activities statewide from January 18, 2011 to June 24, 2011. Inspection records were examined to identify trends in the number of inspections completed, violations found, and the type of violations noted. For that five month period from January to June, here’s some of the data the review team reported:

• During the time period, DEP water quality specialists performed 4,157 inspections of Marcellus Shale exploration and production sites.
• Broken down by region, the inspections were as follows:
  • North Central – 2727 total inspections
  • Southwest – 1101 total inspections
  • Northwest – 329 total inspections
• During time period, 324, or 7.79%, of the inspections resulted in on-site violations. By region, here’s the breakdown:
  • North Central – 269 (9.86%)
  • Southwest – 38 (3.45%)
  • Northwest – 17 (5.17%)
• Of the overall inspections with violations noted, a total of 633 individual violations in all three regions were found on-site. The five most often identified violations were:

1. Improper storage, transportation, processing or disposal of residual waste (83 violations
2. Poor erosion and sediment controls (79 violations)
3. Lack of capacity in pits or tanks (55 violations)
4. Lack of pollution prevention measures (36 violations)
5. Defective, insufficient or improper casings (36 violations)

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This post was written by Nicolle Bagnell and Ariel Nieland.

On November 3, 2011, the Pennsylvania Department of Environmental Protection ("DEP") announced that it plans to release technical guidance regarding Pennsylvania's updated wastewater treatment regulations, which took effect in August 2010, for new or expanded sources of natural gas wastewater. The guidance will clarify the requirements that facilities accepting shale gas wastewater must meet under the regulations, including effluent standards for total dissolved solids in treated wastewater and radiation monitoring prior to discharge of wastewater that was not fully pre-treated.
 

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This post was written by Jennifer Smokelin.

This week, the U.S. Environmental Protection Agency (USEPA) announced its final hydraulic fracturing study plan and indicated that initial research results are expected by the end of 2012 with a final report in 2014. The overall purpose of the study is to understand the relationship between hydraulic fracturing and drinking water resources. The final study plan looks at the full cycle of water in hydraulic fracturing, from the acquisition of the water, through the mixing of chemicals and actual fracturing, to the post-fracturing stage, including the management of flowback and produced or used water as well as its ultimate treatment and disposal. Earlier this year, USEPA announced its selection of locations for five retrospective and two prospective case studies.

This study got its start in a 2010 budget report in which the U.S. House of Representatives Appropriation Conference Committee identified the need for a focused study of hydraulic fracturing. Since then, USEPA has held a series of public meetings across the nation to receive input from states, industry, environmental and public health groups, and individual citizens.

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