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Have Public Servants Charged with Protecting Drinking Water for 15 Million People Sold Out to the Gas Drilling Industry?

Environmentalists are squaring off against the gas drilling industry, but the playing field does not appear to be level.

Over the past decade, 34 states have succumbed to the hazardous and largely unregulated hydraulic fracturing (widely known as "fracking") of deep shale formations to extract natural gas. This radical drilling method, blasting its way from Texas and the Rockies, through Louisiana and Arkansas to the east, has wreaked havoc, turning large swathes of the nation sitting above shale formations into industrial zones, degrading landscapes, economies, land values, air quality, and perhaps most importantly, water.

But on the eastern edge of the Marcellus Shale, the nation's largest shale formation extending from New York and Pennsylvania to West Virginia, the multi-state entity responsible for protecting the historic and vibrant river and its vast basin, much of which lies above the Marcellus, halted the process. In May 2009, the Delaware River Basin Commission (DRBC), which consists of the governors of New York, Delaware, Pennsylvania and New Jersey, as well as the commander of the U.S. Army Corps of Engineers North Atlantic Division, issued an Executive Director Determination (EDD) that put a moratorium on permits for new production gas drilling projects in the shale layers. Then in June 2010, the Commission issued a Supplemental Executive Director Determination (SEDD) extending its permit moratorium to include exploratory well projects, with one important proviso -- 14 exploratory wells already granted state permits could proceed.   

The Supplemental Determination on exploratory wells pleased few. Drilling interests, which wanted immediate revenues, regarded the moratorium on test wells as an unfair limitation. Anti-drilling advocates, who claimed that building exploratory gas wells is as dangerous as fracking, saw the grandfathering of the 14 wells as reckless. Each side -- drillers Newfield Appalachia PA and Hess Corporation joined by the North Wayne Property Owners Alliance and anti-drilling groups Damascus Citizens for Sustainability and Delaware Riverkeeper Network, joined by Bucks County's Nockamixon Township--petitioned for an administrative hearing. At its meeting on July 14 of last year, the Commission agreed to comply: In December 2010 (later extended to January 2011) DRBC said it would conduct several days of hearings in which each side could testify and present expert testimony on exploratory wells.  

But then at its December 8 meeting, DRBC canceled the hearing, explaining in a statement that it "made the decision in accordance with the recommendation of the hearing officer" in his letter of December 6. This letter stated that since the drilling interests had either already completed the exploratory wells in question or had agreed to submit the wells to Commission review once they were completed, the matter of the exempted wells was moot. Any ensuing problems in exploratory wells could be addressed at a later time.  

But by then, anti-drillling advocates say, irreparable harm might be done. Dug a mile into the shale to test the suitability of a site for fracking, exploratory wells are often developed into production wells that use hydrofracking for gas extraction. Fracking aside, the construction of exploratory wells is dangerous, the anti-drilling experts' reports argue, due to the very nature of exploration, the toxic chemicals used in construction (which may contaminate aquifers and air alike), the release of naturally occurring radioactive material, and more. As for the many other issues the anti-drilling co-appellants sought to present at the hearing -- including the DRBC's Rules of Practice and Procedure and the "inappropriate communication between the Commission and industry" -- cancellation ended an opportunity for their public airing.  

It's unknown what happened between July 2010, when the hearing was planned, and December 2010 to cause the abrupt cancellation. But possible industry influence beckons for attention.  
Possible Players and Moves
The December 6 letter was signed by hearing officer, Edward N. Cahn, on his law firm's letterhead. In August, when Cahn was appointed, the DRBC and the media identified him as a retired federal judge of the Eastern District of Pennsylvania, and later its chief justice, a distinguished jurist for whom both the Federal Building and United States Courthouse in Allentown had been renamed. At the time, there was little if any press mention of the fact that Judge Cahn, since retiring from the bench, had served at the law and lobbying firm Blank Rome as "of counsel," a title that allows firms to gain both prestige and business from retired judges who in turn gain income from revenues. No doubt both sides knew of the judge's 11-year service at Blank Rome, but his area of expertise in the large and diverse firm was intellectual property and mediation.