The sword cuts both ways

It is ironic that property rights, which up until now have been the clarion call of proponents of natural gas drilling in our area, lie at the center of the recent to-do over the activities of the seismic testing advance crews on River Road in Wayne County, PA on April 20. At issue is whether a public agency like PennDOT, a state department of transportation, can legitimately authorize private companies to engage in operations on land that belongs to individual property owners when said property owners are opposed to those operations, or even to collect data from such land for private commercial purposes.

Proponents of natural gas drilling have become identified with the championship of property rights because they say they have the right to invite drilling on their own land, without that right being limited by government rules and regulations. But it could be argued that the activities of the crews on River Road—with the express permission of government transportation agency PennDOT—were also a violation of property rights.

Seismic testing benefits stakeholders who have something to gain from gas drilling. But to set out equipment for the testing, the contractor, Dawson, apparently went on the property of several households that not only do not want drilling on their own properties, but feel that drilling in the area at large will foul the communal air and water, destroy the habitat on which we all depend and stress taxpayer-funded infrastructure.

It’s true that PennDOT has a right of way that extends 16.5 feet from the center of the road in both directions, and that PennDOT had issued Dawson permits to be on that right of way. But in the case of at least one property owner on River Road that we spoke to, their deed specifies that the property extends to the middle of the road. In other words, the verges of the road where the crews were operating—and indeed the road itself—are not only a public right of way but simultaneously private property.

Proponents might argue that the permits PennDOT gave to the testers legitimately trumped private property rights if the agency deemed the activity to be in the public interest. But government and its agencies don’t get to just make up what they consider to be in the public interest and then impose that on the citizenry—not in a democracy. Roads and transportation are integral to any modern society, and because by definition they operate across many properties and even states, the citizens of this country have indeed ceded a lot of power to transportation companies and the corresponding government agencies, giving them, for instance, unusual powers of eminent domain.

But that power has been ceded for the purpose of the transport of people and goods. Surely, the government ought not to transfer that power to other purposes. To give a permit to a company to fix the road shoulder or create a drainage ditch, for example, however annoying it might be to the homeowner, would be legitimate. But imagine if PennDOT issued permits to a private company to set up lemonade stands on the edge of people’s properties in the right of way. Would such permits be legitimate? Or would they not, because they are in no way related to this government agency’s legitimate mission, be as illegal as they were ridiculous?

But lemonade stands are not in the public interest, you might argue. Well, there is no unanimity on the issue as to whether natural gas drilling in this area is in the public interest or not, either; on the contrary, it is the subject of the liveliest debate not only in our own area but all over the country.

Beyond the question of geographical coordinates, there is a question of ownership of the information about the land that is the property of a private individual. It could be argued that geological data ought to be in the public domain, and collecting it therefore is for the public good. But to obtain, without the owners’ consent, information about the subsurface portion of their land with the intent of commercial use—and without the owner having access to the data—could possibly be construed as a kind of theft. Even drilling proponents might object to this: with the harvested information available to the drilling companies but not the landowner, the former would have an unfair advantage in negotiating leases.

The crews moved on rapidly from River Road (see article on page 1.) But the incident gives us a taste of the increasing complexity we can expect in the question of whose property rights are being violated, and whose defended, as more and more interested parties move into our area to exploit the Marcellus Shale.

Also in this issue:

• Big return, negligible problems

Dr. Punnybone

Crying Wolf