JURIST Associate Editor Garrett Eisenhour, University of Pittsburgh School of Law Class of 2014, is a law clerk at the Center for Coalfield Justice. He explores the regulation and safety concerns surrounding gas pipelines, and argues that the costs may outweigh the benefits…

Amidst an expanding shale gas presence in Pennsylvania, questions still remain as to what legal boundaries will be established and what the future relationship will be between Pennsylvania citizens and the companies extracting gas from beneath the land. Before 2005, the term “hydrofracturing” was a concept known only to those involved in the natural gas drilling industry. Today, environmentalists and billionaires, like Michael Bloomberg, call “fracking” the way to a long-term, cleaner replacement of coal. However, the benefits touted by the industry and advocates alike are not entirely convincing, considering the recent studies backed by the Environmental Protection Agency (EPA) and the National Academy of Sciences showing that methane leakages from the current production of natural gas will offset any mitigation of global warming effects by switching from primarily coal usage.

Though the benefits of the industry to jobs and economic gains through oil and gas leases will add up to a large profit for some citizens of Pennsylvania, there is always a downside to a major industrial presence. Over the last few years several incidents involving explosions of gas pipelines have highlighted the danger present in this industry and has prompted demands for regulatory reform in both Pennsylvania and Washington.

At this point, a lack of oversight and a willingness to defer to industry expertise at all levels of oversight have led to a situation where disasters are not only likely but increasing in probability with the exponential growth of gas drilling. Pipelines themselves present a unique problem in Pennsylvania, and many miles of pipeline operate without regulation or safety supervision of any kind. Industry and regulatory experts agree that pipelines are the safest means of transporting natural gas from the wellhead to the consumer. That being said, the risks associated with having pipelines that are unknown to those residing above them and first-responders untrained to handle such potential disasters leaves far too much room for further danger.

Regulatory Background

Depending on the type of pipeline and whether it crosses state lines, several distinct bodies handle pipeline safety regulation in the US. At the federal level, the US Department of Transportation (DOT) and the Pipeline Hazardous Materials Safety Administration (PHMSA) issue and enforce permits for interstate pipelines, while the Federal Energy Regulatory Commission (FERC) approves the siting of those pipelines. The bodies that oversee intrastate pipelines can vary, although all receive an annual certification from PHMSA. In Pennsylvania, the Public Utilities Commission (PUC) handles the regulation of pipelines and the Pennsylvania Department of Environmental Protection (DEP) grants permits for pipelines that cross wetlands, waterways and other areas of higher environmental concern.

In natural gas drilling, there are distinctions between types of pipelines that become important when trying to decipher the regulatory structure. The three major categories of pipelines are gathering lines, transmission lines and distribution lines. These categories delineate how the particular pipeline is used during the commercial natural gas life cycle and each one is regulated by different entities. Local entities and state utility commissions typically monitor distribution lines, whereas transmission lines are monitored by PHMSA and FERC if they are interstate. Both intrastate transmission lines and gathering lines are able to fall under PHMSA review but the responsibility is delegated to local utility commissions. Pipelines are further categorized in to four classes based upon the population density of the area surrounding them. Class 4 pipelines in the PHMSA designation are those where unit buildings with four or more stories above ground are prevalent in the area. In contrast, Class 1 pipelines are in any location with 10 or fewer buildings intended for human occupancy within 220 yards of the centerline of the pipe. The classes are created as a means to properly assess the risk and necessary oversight of each new pipeline built.

Legislation and Local Issues

At both the federal and state levels, recent disasters have prompted passage of stiffer regulations. The Pipeline Safety, Regulatory Certainty and Job Creation Act of 2011 was the last federal bill passed to encourage safety regulation of gas pipelines. The act required the DOT to conduct studies of pipeline safety and assess whether further regulations should be required to ensure safe transport of natural gas. It was passed in response to pipeline explosions in San Bruno, California and Allentown, Pennsylvania, which left a combined 13 people dead and many acres of both cities destroyed. Despite existing and new regulations at the federal level, neither PHMSA nor FERC monitors Class 1 pipelines because of deference to industry risk assessments, which presumably are low enough to avoid regulation. At the local level, Pennsylvania has attempted to craft its own regulations as more citizens demand oversight and the presence of drilling companies permeates localities.

Despite Pennsylvania’s safety regulations, a gap in oversight remains, leaving many to question the industry safety data and the reasonableness of long-term federal studies. In December 2011, Pennsylvania Governor Tom Corbett signed into law the Gas and Hazardous Liquids Pipeline Act, otherwise known as Act 127. The act expanded the power of the PUC to enforce federal pipeline safety laws throughout the Commonwealth. The guidelines adopted empower the PUC to monitor pipelines in Classes 2-4 and does not address Class 1 gathering pipelines because of industry risk assessments. Thus, Class 1 gathering pipelines in Pennsylvania are not currently covered under any regulatory structure. Under Act 127, the PUC is not even aware of the locations of many Class 1 gathering pipelines and the operators are not required under any law to disclose the locations of these lines to consumers or governments.

A study conducted by the US Government Accountability Office (GAO) in March 2012, acknowledged this lack of oversight and recommended reevaluation of these regulations. The GAO study noted that, while gathering pipelines do generally pose less of a risk than higher classed pipelines, PHMSA does not collect data on risks associated with gathering pipelines. The concerns mount when a whole class of pipelines is not monitored and one Pittsburgh operator in the GAO study reported that 605 miles of its 786 miles of gathering pipelines were unregulated and unreported.

Concerns

Though Class 1 gathering lines pose much less risk to humans than higher-class lines, the concerns raised by the lack of regulation are not without merit. The threat of disasters is similar in all areas where pipelines exist, despite the population density. Pipelines corrode and materials wear down naturally and under no fault to any operator. The vast majorities of Class 1 pipelines are and will be located in rural areas where first responders will most likely be untrained on how to handle an ignited well. In the San Bruno disaster, the first responders were from a well-funded and populated area, yet they lacked training for handling such an explosion. The explosion prompted California to pass legislation mandating natural gas first response training.

Another concern is that while data is collected on major pipelines concerning leaks, fatalities, injury and property damage, pipeline operators in Class 1 areas are not required to report on any of these occurrences. This becomes especially troubling in densely populated areas or areas close to navigable waterways known as areas of high consequence.

In Pennsylvania, the concerns are not only first response and reporting pipeline locations, but with state support for this industry boom. Pennsylvania’s Act 13 was passed in February 2012, and requires all municipalities in the state to rewrite their zoning laws to allow natural gas facilities to be built unhindered. If a municipality fails to comply with Act 13 they are fined the amount of the impact fee on the local wells drilled. Act 13 also maintains the rights of drilling companies to keep secret from doctors and patients, any chemicals used in the production of natural gas because those formulas are trade secrets. Based upon language of Act 13, many municipalities are concerned that they will not be allowed to raise any holds on pipelines built near residential areas in the future.

In late July, the Commonwealth Court of Pennsylvania ruled that the zoning provisions are unconstitutional while still maintaining the provisions keeping chemical compositions of frack fluid out of the hands of patients and the public. An appeal has been filed, and the Supreme Court of Pennsylvania will hear the case in the coming months.

As a lifelong Pennsylvanian, I feel torn between the boom’s benefits and my concerns for the possible consequences. In a time where industry experts and environmentalists make opposing claims, the truth can be hard to discern from amongst the chaff. Being concerned for the future of our landscape and natural resources, I tend to air on the side of substantive and independent research to disprove dangers of industrial activity. When such studies are lacking, preemptive regulation is the only way to ensure that something potentially disastrous is avoided. If nothing else, the citizens and legislature of Pennsylvania should demand immediate independent or agency studies to show the possible dangers of such pipelines, which will only become more a part of our lives as time goes on.

Garrett Eisenhour is an Associate Editor for JURIST’s This Day at Law and Features services. He is a JD candidate studying environmental and civil rights law. He earned his Bachelor of Science in secondary education from Penn State University in 2010. Garrett is the president of the University of Pittsburgh School of Law’s chapter of Outlaw and secretary of the University of Pittsburgh School of Law’s chapter of the National Lawyers Guild.

The opinions expressed herein are solely those of the author and do not necessarily represent those of JURIST or any other organization.

Suggested citation: Garrett Eisenhour, Shale Gas Gathering Pipelines in Pennsylvania: Underground and Unregulated, JURIST – Dateline, July 30, 2012, http://jurist.org/dateline/2012/07/garrett-eisenhour-pipeline-regulation.php.