In Pennsylvania, a New Administration Fuels Hopes for Tougher Rules on Energy, Environment

On Christmas Day 2022, part of a natural gas processing plant in Washington County, Pennsylvania caught fire, igniting a vapor cloud and prompting a response by the local fire department, a shutdown by the owner and notification of the incident to the state’s Department of Environmental Protection. The fire burned itself out by about 5 p.m.

The DEP said its officials went to the Revolution Cryo plant in Smith Township on Dec. 25, and returned on Jan. 3 as part of an ongoing investigation into what caused the incident at the plant owned by Energy Transfer, a leading natural gas pipeline operator. The agency denied claims by some environmental groups that anyone calling its emergency line to report the incident got only a voicemail, and said that no residents evacuated.

As to the causes of the fire, the agency said it “does not comment on ongoing investigations or speculate on possible enforcement actions.”

To the DEP’s critics, its response to the fire, and the fire itself, are the latest signs that the agency is ineffective in dealing with industry and communicating with the public. 

“They could have provided a much more detailed and transparent account about what happened, what the risks were, how people should be protecting themselves,” said Matt Mehalik, executive director of the Breathe Project, a nonprofit that advocates for improved air quality in southwest Pennsylvania. “The DEP did not broadcast that very widely, and there was a much more minimized sharing of information that largely is perceived as keeping those people in the dark during that period of time.” 

Since the state’s hydraulic fracturing boom for natural gas began in the mid-2000s, critics say the DEP has been hobbled by staff cuts and a cultural reluctance to crack down on the industry in a state with a long history of fossil fuel extraction. The result has been explosions, spills, leaks and contaminated private water wells as well as growing evidence that fracking for natural gas harms public health. 

But with the inauguration of Josh Shapiro as the new Democratic governor, and new leadership at the DEP, advocates for tougher regulation of the oil and gas industry, and for an activist approach to countering climate change, hope that the state is poised to begin a new chapter.

“I’m optimistic that making enforcement and being an advocate for the public will be a top substantive priority for the DEP under Gov. Shapiro, and not just on fracking,” said David Masur, executive director of PennEnvironment, an advocacy group.

Masur and other environmentalists are encouraged by Shapiro’s record as a prosecutor of the oil and gas industry in his previous job as Pennsylvania’s attorney general, and expect more of the same now that he is governor. Shapiro in the last year obtained “no contest” pleas from Energy Transfer and the gas driller Coterra for their impacts on private water supplies and environmental assets. And in June 2020, he issued a grand jury report that sharply criticized the DEP’s management of the oil and gas industry, and urged specific reforms that he said would make the agency a more effective regulator.

Among other things, he urged the expansion of no-drill zones to 2,500 feet from occupied buildings from the current 500 feet; the public disclosure of all chemicals used in drilling and fracking; the regulation of so-called gathering lines—smaller pipelines that connect wells with main transmission lines—and the safer transport of waste from fracking sites.

Advocates say there is good reason to expect Shapiro to follow through on those and other proposals now that he is governor, and to equip the DEP to implement them for the first time since the Republican Party took control of both houses of the state legislature in 2011.

“As attorney general, Gov. Shapiro said many of these things,“ said Masur of PennEnvironment, referring to the grand jury report. “He made these ideals and actions a core part of their environmental enforcement. They have stuck their neck out pretty far, and if they are not going to do it, they have talked a big game to date, and voters don’t forget those things.”

But injecting new life into the DEP will require reviving a workforce demoralized by years of budget cuts, salaries that are much lower than in the private sector and the changing priorities of successive governors, Masur said.

”They are a little bit like Doctor Dolittle’s Pushmi-Pullyu,” he said. ”One day your boss is Tom Corbett, a conservative Republican who says your job is to help businesses do their job better. The next day you work for someone who says, ‘No, no, your job is to defend the public.’ That creates a mission challenge for your staff.”

Now, DEP staffers must implement the policies of a governor who, as attorney general, strongly criticized their performance.  

On climate policy, Masur said he expects Shapiro to pursue his campaign promise of increasing the share of renewables of total energy to 30 percent by 2030 from the current 8 percent, under the Alternative Energy Portfolio Standard. And he predicted that Pennsylvania’s membership of the Regional Greenhouse Gas Initiative, as proposed by former Gov. Tom Wolf, will survive its current court challenges and finally allow Pennsylvania to join 11 other Eastern states in the program to curb carbon emissions from power plants.

Although Masur’s group has argued for an outright ban on fracking in Pennsylvania since the industry got underway in the mid-2000s, he is not holding out hope that the state will do so now, even if it imposes tougher rules on operators. “I am assuming it’s a nonstarter; it doesn’t have the political support,” he said.

Shapiro’s nominee for DEP secretary is Richard Negrin, a former managing director of the City of Philadelphia and most recently a vice president at the Chicago-based power utility Commonwealth Edison. Negrin is expected to offset any shortfall in environmental management with his experience leading large entities.

“He is sincere in his desire to want change for the public good,” said Brian Abernathy, who worked for Negrin in Philadelphia before becoming managing director himself from January 2019 to September 2020. “He wants his people to succeed, and will support his troops. He is innovative and creative, and willing to try new ideas and push government in ways that it isn’t used to being pushed.”

Abernathy predicted that Negrin, if confirmed by the state Senate, will loyally do Shapiro’s bidding by taking a centrist rather than an ideological approach.

“Rich is thoughtful and considerate and is naturally inclined to find compromise,” Abernathy said. “He’ll be committed to the governor’s priorities, and demand environmental progress but may move slower than advocates would like and faster than the industry is comfortable.”

The DEP did not immediately respond to a request for an interview with Negrin.

Negrin’s immediate predecessor is Patrick McDonnell, who led the DEP from May 2016 to June 2022, and is now chief executive of PennFuture, a statewide environmental advocacy group. McDonnell said the agency of around 2,300 employees lost about 35 people in its oil and gas division during his tenure, and that hindered its ability to be an effective regulator.

“I don’t think at any point we were able to get to a place where we were meeting all of the inspection targets,“ he said.

If the Shapiro administration is serious about righting the regulatory failures of the past, there is no substitute for rebuilding headcount at the DEP, McDonnell said.

“There is a lot we can do with technology but at the end of the day, inspectors need to be out there,“ he said. “If there is a spill or a leak, compliance specialists need to be out following up on those violations. So there is a lot of work to be done there that will take time, people and resources, and I think that’s something that can and should be a focus for the new administration.“

McDonnell declined to say whether more DEP staff should be paid for by taxpayers or by increasing permit fees, but noted that an increase in oil and gas inspectors have traditionally been paid for by permit fees, or from an impact fee on natural gas drilling.

David Hess, who led the DEP under Republican Govs. Tom Ridge and Mark Schweiker from 2001 to 2003, said that as attorney general, Shapiro required greater accountability from the oil and gas industry, and is likely to continue that approach now that he is governor.

Hess argued that a new insistence on accountability might have allowed Pennsylvania to avoid the troubled construction of the cross-state Mariner East natural gas liquids pipelines, leading to the contamination of many private water wells and some wetlands with drilling mud used by the builder, Sunoco Pipeline, a unit of Dallas-based Energy Transfer.

Critics say that more than 100 notices of violation and associated financial penalties issued by DEP during the pipeline construction represented little more than a slap on the wrist for Sunoco which may have seen the fines as simply the cost of doing business.

“That’s another shameful episode in Pennsylvania’s history because laws are so weak that they just brushed off $30 million in penalties,“ Hess said. “There are still a lot of instances where problems have not been corrected with that pipeline route.“

The chances that another Mariner East can be avoided are fueled by Shapiro’s record as a county commissioner and then as a lawmaker in the Pennsylvania House of working with stakeholders to find a solution to problems, Hess said.

“Working with folks to develop approaches that will work, either as regulation or legislation—it’s something a lot of people will hope for because it’s absolutely critical,“ Hess said. “Stakeholder groups can be a very effective way of getting consensus on what should be in regulations or rules.“

Many of the needed changes, such as ending the right of oil and gas operators to spread untreated wastewater on dirt roads, can be done through regulation rather than legislation, and so would avoid likely objections from the Republicans who retained control of the state Senate after the midterm elections, Hess said.

The new administration has the opportunity to look at what went wrong with the state’s attempts to manage the oil and gas industry, and can begin to correct the problems by hiring more DEP inspectors to more effectively manage sites like the Washington County plant that exploded on Christmas Day, he said.

“You can’t have natural gas processing plants exploding in the countryside. You can’t have hundreds of new drill pads every year doing what they want,” he said.

But any tougher approach to enforcement or regulation by the new administration may run into resistance from the fossil fuel industry. David Callahan, president of the Marcellus Shale Coalition, a trade group that represents the natural gas industry in Pennsylvania and surrounding states, urged the Shapiro administration to pursue “sensible policies and regulations“ such as more predictable permitting to enable the industry to make the most of the abundant reserves that have made Pennsylvania the second-biggest U.S. natural gas-producing state after Texas.

“Desperately needed enhancements to Pennsylvania’s energy, economic and environmental policies have held back the commonwealth from realizing its full economic and environmental potential,“ Callahan wrote in The Center Square, a journal that covers state and local government.

“Predictable permitting reviews inform capital intensive decision-making, particularly for large-scale infrastructure like pipelines,“ he said. 

Callahan said a shortage of pipeline capacity to take natural gas to market from Appalachian states like Pennsylvania and West Virginia has driven up costs for consumers, and increased demand for imported gas. 

“This should never be the case given our talented and dedicated workforce, as well as the proximity of the most prolific and lowest-emissions natural gas producing basin in the world, “ he said.

For Mehalik of the Breathe Project, the Christmas Day explosion is the latest instance of a “permissive“ DEP policy toward the natural gas industry that the state can now correct.

“The DEP, the governor’s office, the Department of Health have an opportunity to align our state’s priorities where they need to be,“ he said. “Pretending that we can continue to operate like we have in the past really just provides false hope because those old technologies are going to be phased out.“

The election of a reform-minded Democratic governor, and an expected Democratic majority in the House after special elections on Feb. 7, represent a sea change in Pennsylvania politics after the election of Republican Gov. Tom Corbett in 2010 and the Republican control of both houses from then until the 2022 midterm elections, Mehalik said.

“What we’re seeing is a recovery from the election of 2010 which drastically shifted the priorities of Pennsylvania to the Republicans—both houses and governor,“ he said. “For the last 13 years, we’ve seen the consequences.“

Now, the new administration has an opportunity to choose new priorities that can advance efforts to mitigate climate change and do more to adapt to its effects, he said.

“The state now has before it a number of different pathways that it can choose in terms of furthering dependency on fossil fuels and extending climate pollution, or not,“ he said. “Leadership needs to take a hard look at what is in the strategic best interests of the state, and not just let existing short-term interests dominate that decision-making process.”