A recent decision by the U.S. Third Circuit Court of Appeals regarding oil and gas drilling on the Allegheny National Forest prompted David C. Fredley to offer his opinion supporting the court’s decision. (“Stand up for states’ rights,” Oct. 31, 2011). The court held that the Forest Service has almost no authority to protect the Allegheny from oil and gas drilling since it does not own the mineral rights under most of the forest. Several aspects of Mr. Fredley’s column, and the court’s decision, merit a response.
Mr. Fredley, a former Forest Service employee, is now, according to his column, a paid consultant for both the Forest Service and the oil and gas industry. As such, Mr. Fredley epitomizes the “revolving door” syndrome corroding our democratic institutions. When former agency officials, whose job it was to regulate to protect our public forests, leave their government jobs to work in the very industries they were previously regulating, it raises significant concerns about their time in government and whose interest they were serving – the public’s interest or private corporate interests that profit from exploiting resources on, or in this case, below public land.
Beyond this obvious conflict of interest, Mr. Fredley’s assertion that the Forest Service attempted to “usurp private property rights” when it proposed reasonable regulation of oil and gas drilling on the Allegheny National Forest is completely false. Rather, the Forest Service only required that an environmental analysis accompanied by public comment precede drilling operations. This “informed decision-making” would serve the public interest by ensuring that other multiple-uses on the Allegheny, such as recreation, clean watersheds, and wildlife habitat, are better protected from the impacts caused by oil and gas drilling. This can be accomplished while respecting the rights of those who own oil and gas beneath the Allegheny.
Mr. Fredley, however, appears less concerned with the public interest than he is with the interest of those profiting from rampant oil and gas drilling on Pennsylvania’s only national forest. Over the last several years, there has been a substantial increase in the number of new oil and gas wells drilled on the Allegheny. These new wells require new roads and supporting infrastructure – pipelines, storage tanks, compressor stations, and wastewater disposal pits. In other words, forested areas are rapidly industrialized and consequently lose value for other forest uses – how many people want to go camping in the middle of an oil field? As the Forest Service itself stated in 2003, “the value of the land to provide recreation opportunities is diminished in intensively developed oil fields…the inherent character of the landscape is converted to an industrial atmosphere in the midst of the forest.”
Understandably, Mr. Fredley and the oil and gas industry do not want the public to have an opportunity to voice its concerns about proposals to drill more oil and gas wells on the Allegheny – especially now as Marcellus Shale gas drilling spreads across the state, causing even more impacts that will be felt for generations. Allowing the public to have a say in how public land is managed would interfere with the oil and gas industry’s desire to essentially treat the Allegheny, a national forest that belongs to all Americans, as its own private fiefdom. The industry does not want the long-term cumulative effects of oil and gas drilling on the Allegheny National Forest examined and disclosed to the public – and the Third Circuit’s decision practically ensures that no such examination or disclosure will ever occur.
Quite frankly, the Third Circuit’s decision stands in stark contrast to its own previous decisions regarding management of the Allegheny National Forest. For example, when the Allegheny Defense Project sued the Forest Service in 2001 to stop an 8,000-acre timber sale, the Third Circuit deferred to the agency’s judgment and upheld the timber sale. The result? The timber industry got its timber from the public’s land.
One would expect that when non-environmental plaintiffs sue the Forest Service, as is the case in the most recent decision where the oil and gas industry filed the lawsuit, the same standard of deference to the agency would apply. The Third Circuit, however, said in this case that it owed no deference to the Forest Service’s decision to regulate oil and gas drilling. The result? The oil and gas industry gets its oil and gas without any Forest Service regulation.
Essentially, the Third Circuit has created two separate standards for reviewing Forest Service decisions. When environmental plaintiffs sue the Forest Service to protect the environment, those plaintiffs will have a considerable burden to overcome. When industry plaintiffs sue the Forest Service because the agency was actually trying to protect the environment, those plaintiffs will have a much lower burden. The result in both situations benefits industry, not the environment.
