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By David McPeak, Blog Editor
The findings of a two-year Grand Jury investigation into criminal violations of Pennsylvania’s environmental laws by natural gas producers was recently accepted by a judge in the Court of Common Pleas of Allegheny County. [1] The State Wide Investigating grand jury was requested by the Pennsylvania Office of Attorney General (“OAG”).
The report levels hefty allegations against the Pennsylvania Department of Environmental Protection (“DEP”) in its role as an industry regulator. DEP petitioned the court to attach its scathing rebuke to the final grand jury report prior to public release. [2]
In the attached response, DEP blasts the “extent of factual inaccuracies” and “confused articulation of the relevant law” for which the grand jury used to take DEP to task. [3] However, the agency ultimately blames the OAG for presenting the confidential grand jury with limited information that produced “recommendations that are ultimately unproductive and/or inappropriately directed to DEP.” [4] For this, the DEP contends that the grand jury report “fails as an exposé of a government agency ignoring its statutory duties and constitutional obligations.” [5]
The jarring grand jury report paints a (formerly) picturesque rural Western Pennsylvania turned dystopian industrial wasteland—devastated by a boom of unconventional gas development, or “fracking.” Pictures of discolored water, well pads, trucks, and even worms in a garage purportedly demonstrate the harmful environmental impact of fracking. [6] Testimony by witnesses of concerning health issues allege “clear and convincing” evidence of criminal conduct. [7] And for all this, the report accuses DEP of being complicit.
The DEP’s fifty-four page response is a forceful takedown of the grand jury findings. Pointing out that the report relies exclusively “upon unidentified witness snapshots, in some cases from 10-15 years ago” consisting of hearsay and anecdotes, DEP asserts that the grand jury report lacks credible evidence, rendering the report “both factually and legally inaccurate.” [8] Even though the grand jury report seemingly presents “clear and convincing evidence” of horrendous violations, such as alarming health effects attributed to fracking, it offers no “dates, places, times, testing data or corroborating testimony from medical professionals.” [9]
According to DEP, the timing of alleged instances of non-compliance is critical. The development of the fracking regulatory regime did not happen overnight. However, the grand jury’s presentation of events that occurred years ago may lead readers to believe that they are currently unfolding. [10]
Because DEP claims the report lacks basic evidentiary details, it asserts that the grand jury conclusions are compromised, and makes it “[]impossible to respond to the allegations in meaningful way.” [11]
DEP also asserts that many of the final recommendations of the grand jury report could only have been reached under a misunderstanding of the governing legal authority, and disregard or ignorance as to foundational principles, such as the checks and balances of representative government. [12] The DEP’s response emphasizes that it lays the blame for this, not with the grand jury itself, but with the information provided to it from the OAG. [13]
The eighth and final recommendation of the grand jury report is perhaps the most striking illustration. The report recommends that the OAG have concurrent jurisdiction to unilaterally prosecute criminal violations of Pennsylvania’s environmental laws. This would constitute a broad expanse of the powers of OAG beyond those delineated in the Commonwealth Attorneys Act of 1980. [14]
Under that act, OAG has jurisdiction to prosecute criminal conduct either by referral from a Commonwealth agency, or through any county District Attorney. [15] Here, the General Assembly specifically limited OAG jurisdiction to referrals under the premise that the agency charged with implementing the particular law is best suited to decide when to seek criminal prosecutions. [16]
Notwithstanding the merits for dividing powers between agencies under the Governor and OAG as contemplated by the General Assembly, DEP challenges OAG’s ability to prudently prosecute such matters on its own. [17] DEP lists a dozen complex environmental statutes under which it has previously made prosecutorial referrals to OAG for criminal violations. [18] According to DEP, a successful and legitimate criminal prosecution requires a deep understanding of how to wield this immense statutory framework in various legal contexts, as well as extensive experience in identifying the right cases for criminal prosecution. [19]
Here, DEP raises several valid concerns, including the risk of inconsistent interpretations of the substantive law inherent when two branches of government share jurisdiction. [20]
“This is particularly true where a grand jury report reflects substantial misunderstanding of the underlying law and of what constitutes probative evidence.” [21]
DEP concludes its contentious response by reiterating that the OAG did not find any wrongdoing on the part of the agency, and that the grand jury findings are otherwise meaningless for improving regulation of fracking “because the report is not at all informed by the applicable law or facts.” [22]
[1] Order Accepting Investigating Grand Jury Report No. 1 And Directing Further Action Prior To The Report Being Made Part Of The Public Record, In Re: The Forty-Third Statewide Investigating Grand Jury (No. 71 W.D. MISC. DKT. 2017). (Hereinafter “Grand Jury Report”).
[2] Response of the Pennsylvania Department of Environmental Protection to Report 1 of the Forty-Third Statewide Investigating Grand Jury, In Re: The Forty-Third Statewide Investigating Grand Jury (No. 71 W.D. MISC. DKT. 2017) at 5. (Hereinafter “DEP Response”).
[3] DEP Response at 4.
[4] Id. at 5.
[5] Id. at 48.
[6] In Re: The Forty-Third Statewide Investigating Grand Jury, 71 W.D. Misc. Dkt. (2017) (hereinafter “Grand Jury Report”).
[7] Grand Jury Report at 39.
[8] DEP Response at 31.
[9] Id. at 32.
[10] Id. at 14.
[11] Id. at 34.
[12] Id. at 35.
[13] Id. at 36.
[14] Grand Jury Report at 11.
[15] Commonwealth Attorneys Act of 1980, 71 Pa. Stat. Ann. § 732-205.
[16] DEP response at 46.
[17] Id. at 46.
[18] Id. at 46.
[19] Id. at 48.
[20] Id. at 46.
[21] Id. at 47.
[22] Id. at 48.
