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November 29, 2015
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No grandfathering

At one of last year’s Upper Delaware Council (UDC) meetings, Delaware River Basin Commission (DRBC) Executive Director Carol Collier was asked what the agency would do if it issued a set of permitting rules and subsequent studies revealed that the regulations were insufficient to protect the watershed from harm.
The question was asked in light of two studies already planned, which will investigate the cumulative impact of hydro-fracking and related natural gas drilling technologies: the DRBC’s own study, to be carried out by the USGS, and another one to be undertaken by the EPA.

Collier’s response was that the DRBC could always adjust the rules as necessary in light of subsequent evidence. Unfortunately aquifers, once damaged, frequently cannot ever be put right, meaning that such belated adjustments might very well come too late to prevent irremediable harm.

Nevertheless, in December the DRBC went ahead and issued a set of draft regulations for natural gas drilling in the basin before the scientific investigations had even commenced.

The regulations are on track to be finalized this spring, and there’s probably not much we can do to stop them or the potential damage they may permit. But there is at least one thing we can do to mitigate harm: insist that there be no grandfathering with respect to any changes needed in these prematurely crafted regulations.

Grandfathering is the time-honored default in situations in which laws or regulations become more strict: individuals and companies who have already started to engage in the activities in question under some original, more permissive set of rules are allowed to continue to do so. And in many cases this makes sense.

People should not be penalized for investing in an activity when, at the time they make the investment, these activities are regarded as acceptable and legal, and sanctioned as such by the authorities.

If the DRBC ever attempts to tighten up its regulations, we can be sure that the industry will argue along these lines, and that a “compromise” will be proposed that would allow any operations that exist at that time to be grandfathered in as immune from the altered rules.

But in this case, such a procedure is unacceptable. In this case, both the authorities and the industry know that scientific studies are planned to determine the extent of the dangers posed by the activity in question, and that the initial set of rules has been established in a state of ignorance.

Nobody can claim, if it turns out that additional regulation is needed—or even outright bans—that “nobody could have guessed” that there would be a problem.

Thus, we consider it imperative that the DRBC write a section into the new regulations making it clear that no grandfathering will be allowed if regulations need to be changed in light of scientific studies. If that means that certain well pads have to be shut down entirely or re-engineered in the future, so be it.

Could it slow down drilling activity if companies knew that a well pad might have to be shut down in a few years? Maybe. But consider the alternative. This contingency would only arise in a situation in which scientific studies have proven that harms are being caused by certain activities.

Just how many cases of cancer should we consider an acceptable price to pay to protect drilling companies from the anxiety of a possible regulatory change in the future? How many families would it be acceptable to bankrupt with medical costs? How many homes should become worthless?

It may be too late to correct the mistake of issuing permitting rules before scientific studies are completed. But if the DRBC really believes that it can make everything right by changing those regulations as information becomes available, it will have no problem with inserting a “no grandfathering” clause.

To refuse to do so would make it clear that the agency considers our area, in the phrase introduced in Peter Comstock’s December 23, 2010 visioning column, a national “sacrifice zone,” an area whose well-being has to be written off for the good of the rest of the country. At that point we might as well stop pretending, disband the DRBC and put the basin directly under the control of the U.S. Department of Energy.