Document Type

Article

Publication Year

2011

Journal Title

Duquesne Business Law Journal

Abstract

The Marcellus Shale is by far the largest natural gas shale play in the United States' and the largest known shale deposit in the world.

Located beneath a large part of the Appalachian basin, it extends north into upstate New York, south into West Virginia and Virginia, and west into Ohio, and geologists estimate that it may contain as much as 489 trillion cubic feet of recoverable natural gas. The Commonwealth of Pennsylvania currently owns 117 parks and three conservation areas in Pennsylvania, making up 2.4 million acres of land - approximately 1.5 million of which are above the Marcellus Shale. Natural gas development in these parks requires, among other things, "land clearing and well pad development, well drilling, and the consumption, treatment, and storage of water and wastewater, and the construction of roads, pipelines and other infrastructure." These drilling activities - especially in a park setting - can result in numerous environmental impacts, including, but not limited to "[f]orest and habitat fragmentation, the introduction of invasive species, soil compaction and erosion, noise, localized air pollution, recreational/aesthetic impacts, and threats to groundwater."

Given the recent boom of natural gas that is being developed from the Marcellus Shale, and the fact that approximately 700,000 acres of Pennsylvania state park and forest are currently available for said development, it is not surprising that issues have arisen as to whether and how the Commonwealth can condition the natural gas development so as to fully protect the park's environment, plants, wildlife, habitats, and the like from being destroyed or injured during the process. This question has been shaped by Pennsylvania's Constitution as well as a flurry of recent activity from all three branches of Pennsylvania's government, including: a 2009 Pennsylvania Supreme Court decision; a 2010 moratorium by an outgoing governor; a shortlived policy from the Pennsylvania Department of Conservation and Natural Resources ("DCNR"); and recurring legislation, which is now back before the Pennsylvania House of Representatives. In this article, the authors will analyze the Pennsylvania Constitution's environmental protection provision and the Pennsylvania Supreme Court case of Belden & Blake v. Commonwealth Department of Conservation & Natural Resources, discuss the recent executive and legislative initiatives attempting to overturn the Belden & Blake decision, and look to the future of natural gas development in Pennsylvania's state forests and parks.

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193

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