The Act 54 Report – It’s Past Time to Rewrite the Law

January 6, 2015By: John Walliser
PEC Blog

At the very tail end of 2014, the Department of Environmental Protection (DEP) released the fourth in an ongoing series of reports detailing the effects of surface subsidence related to underground coal mining in Pennsylvania. The PA Environmental Digest has an excellent snapshot of the report’s detailed findings.

The report underscores a bigger issue: the longstanding need to rewrite the law governing underground coal extraction (commonly referred to as “Act 54”) in our state. Although greenhouse gas emissions have dominated recent discussion, there are other environmental and societal impacts that need to be reexamined with respect to coal—impacts that are not being effectively addressed by current law.

A case in point from the recent report: 40 percent of the streams undermined by underground coal mining (39 of 96 total miles) suffered flow loss or pooling, resulting in adverse impacts on aquatic life, water chemistry, and ecological function. Eight of the 55 stream segments identified as being affected in the prior (2003-2008) report have yet to recover from the impacts of mining. With forthcoming public review and comment, those numbers may prove to underestimate actual impacts given other information.

Nearly half of the streams undermined by underground coal mining suffered flow loss or pooling, resulting in adverse impacts on aquatic life, water chemistry, and ecological function.

Failure to prevent or restore damages to aquatic resources is a recurring issue in the series of Department reports on subsidence impacts. This failure runs counter to the clear directive of Clean Streams Law, the Environmental Rights Amendment to the Pennsylvania Constitution, and how Pennsylvania courts have defined degradation of surface waters as a nuisance.

Impacts to surface waters are but one of many issues at play. Water supplies, residences and businesses, public infrastructure, and state park lands have also been adversely affected. While in the majority of instances repair or restitution has been made, it points to a great deficiency in how the state has been able to manage the challenges associated with underground coal mining.

In short—Act 54 as currently written and enforced clearly isn’t enough. The recent Department report is yet another reminder that more needs to be done, and that starts with the law itself.

This isn’t being said in ignorance of the legal realities associated with regulation of coal extraction—particularly given the unique nature of property law in Pennsylvania. We are the only state in the nation that recognizes separate ownership of three different “estates” in property: the mineral estate (e.g. the coal itself); the surface estate; and what is known as the “support” estate—essentially the obligation to protect the integrity of the surface.

In many instances, the company that owns the mineral estate also owns the support estate, meaning they have an implied legal right to “reasonably” impact the surface to access the minerals reserves underground. Thus, the law must balance the rights of were in fact are competing landowners.

And without question, coal extraction and utilization provides significant energy production and economic benefit in Pennsylvania.

Act 54 was finalized in 1994. In the 20 years since, we’ve had four reports documenting substantial impacts to environmental and community resources. Underground mining technology has changed, and operations have grown in size and impact. At the same time we’ve witnessed major advancements in environmental law, requiring more strenuous protections of private and public resources from other extractive industries like natural gas.

While it won’t be easy, it’s time to address Act 54’s inadequacies. The purpose of the recurring Act 54 reports was to inform the public, Governor, and General Assembly of need to change the law. That case has been repeatedly made, the people and environment of Pennsylvania deserve better.

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