by Lori Goldstein
Maya van Rossum, the Delaware Riverkeeper and environmental attorney for more than 25 years, has written a seminal book, “The Green Amendment, Securing Our Right to a Healthy Environment.”
Other than Montana, Pennsylvania is the only state with a green amendment in its constitution.
In 2012, Governor Corbett passed Act 13, giving free reign to the shale gas industry to mine the Marcellus Shale, on which the state sits.
The result: degradation of natural and farm lands, millions of gallons of water infused with toxins and carcinogens, wastewater with lethal amounts of radium, emission of ethane, methane and other greenhouse gases, twice as many health problems including cancer within one kilometer of a well site, and the death of livestock.
In 2013, a landmark case was won: Robinson Township/Delaware Riverkeeper Network v. Commonwealth of Pennsylvania.
Attorney Jordan Yeager (now a Bucks County judge) proved Act 13 unconstitutional, citing Article 1, Section 27 (written in 1971): “The people have a right to clean air, pure water, and to the preservation of the natural…values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come.”
I recently spoke to Maya about her role as Riverkeeper and current environmental issues.
“My job is to be the voice of the Delaware River and its 13,539 square miles of watershed, to be involved in decisions that could help or harm the river, to make sure its needs are given the highest priority. That means challenging dam proposals, inappropriate development projects, stopping fracking and pharmaceutical discharges, and other environmental protection law violations. I’m the leader of the Delaware Riverkeeper Network (DRN), a four-state nonprofit organization representing Pennsylvania, Delaware, New Jersey and New York. We also work at the federal level with 20 staff members – attorneys, advocates, scientists, and the 25,000 members of the DRN.”
Q. How did Yardley become a plaintiff in the green amendment case?
“When we were doing due diligence to prepare for that case, we learned which municipalities wanted to challenge Act 13. Robinson Township was primarily affected by the fracking industry, as was most of central and western Pennsylvania; we realized it would be beneficial to also include eastern municipalities. Yardley and Nockamixon stepped up because they also recognized the threat fracking posed. Jordan Yeager was outside counsel for Yardley at the time.”
Q. What has been the effect of the green amendment case?
“We’re seeing an important shift in environmental protection and decision-making. When advocates stand up to urge their government officials to make the right decision, they’re no longer referencing Article 1, Section 27 as a gratuitous reading of the constitution; they’re now making it clear that government officials are constitutionally bound to protect our environmental rights, not after the fact or down the road.
One example is an ongoing case we’re fighting regarding the highly contaminated Bishop Tube site in East Whiteland Township (Chester County). It’s supersaturated with trichloroethylene (TCE), 600 plus feet into the ground; the pollution plume has been allowed to spread more than a mile away. DRN got involved when the government was negotiating with a developer to build residential housing at the site. We’re challenging the inappropriate development and the failure to clean up the site. The government tried to get the case dismissed by saying you can’t use Article 1, section 27 to force us to do something today. The courts denied their motion, saying no, the green amendment can be used to address past acts of harm. It can be used where there is inaction as well as action by the government. That was an important step, a building block in what it means to have a constitutional right to a healthy environment.
Q. The watershed currently has a moratorium on fracking. How can we achieve a permanent ban?
“We need the support of the four watershed governors, who are also the Delaware River Basin Commissioners (DRBC). In response to a challenge by New Jersey Governor Murphy, Pennsylvania Governor Wolf and Delaware Governor Carney said they’d support a permanent ban on fracking in the watershed. Only New York Governor Cuomo hasn’t gone on record; that’s odd because New York has a fracking ban. While Governor Wolf is willing to support the ban in our watershed, he’s been perfectly willing to sacrifice central and western Pennsylvania. We’re devastating future generations. Volumes of methane and climate-changing emissions are polluting waterways and cutting down forests, having an irreparable bootprint on our environments and communities, all with the blessing, even the invitation of Governor Wolf to the fracking industry. If we had a living green amendment before the frackers came into our watershed, we could have used Article 1, Section 27 to keep fracking out of the state. The problem is fracking got here first, so we have to use the amendment to show how fracking infringes on environmental rights, then set precedents to slowly push back the industry.”
Q. What is DRN’s stance on the PennEast pipeline project?
“It’s powerful that New Jersey is standing up against the pipeline, both denying state approvals and using their sovereign authority to say that PennEast cannnot take land by eminent domain. The DRBC has a powerful role to play in whether PennEast gets denied or approved. It would help if the DRBC uses its authority to say PennEast will cause irreparable harm to the environment. PennEast has been misrepresenting the project in terms of the number of wetlands to be harmed, forests cut, streams and groundwater supplies impacted, species harmed. PennEast has had an open file for 3½ years, yet the DRBC keeps saying let us know when you’re ready. The DRBC certainly has the authority to say we reject this project. If they don’t want to do that, they should at least say, until you can give us full, accurate information, we’re closing this project. The DRN is prepared to challenge an approval by the DRBC and already has an ongoing legal challenge at the federal level against the Federal Energy Regulatory Commission’s approval of the pipeline.”
Q. What power does the DRBC have over PennEast? When and where will DRBC meet?
“The DRBC is not a state authority, it’s created by a federal interstate compact, which means its compact and regulations apply unimpeded to a pipeline project. They’re not preempted, they maintain full authority, so the DRBC can deny a docket, or permit, to PennEast and that project is dead. We’ve been making sure people understand this about the DRBC. [Wednesday] December 11th is the next public DRBC meeting, at 10:00am at Washington Crossing Historic Park [Visitor Center].”
The Visitor Center is located at 1112 River Road, Washington Crossing, PA.
Individuals who wish to address the Commisioners informally during the Open Public Comment portion of the meeting are asked to sign up through Eventbrite: https://www.eventbrite.com/e/business-meeting-of-the-delaware-river-basin-commissions-tickets-79355062127.
PHOTO CAP: Maya van Rossum, the Delaware Riverkeeper