Longstanding Dispute Brought to the Surface in Allegheny National Forest

More than 10,000 oil and gas wells puncture the land within Pennsylvania's half-million acre Allegheny National Forest  (ANF)—more than in all the other national forests combined, according to the non-profit Allegheny Defense Project.  Back in the mid-1990s, about 100 new wells were drilled each year; today, it's about 1,300 per year.  The boom is driven by increased interest in and exploration of the Marcellus shale reservoir, a rock formation lying 5,000-8,000 feet below a large swath of Appalachia (including Pennsylvania) believed to hold trillions of cubic feet of natural gas.  Accessing the Marcellus shale was long considered prohibitively expensive, but recent advances in drilling technology and the rising price of natural gas have combined to make production profitable. 

Environmental impacts of the drilling include land disturbance from construction of roads, pipelines and wellpads.  The deeper wells required to access the Marcellus Shale require drilling pads of three to four acres.  Environmental groups like the Sierra Club are concerned that these land disturbances are further fragmenting wildlife habitat within the ANF, impacting species such as the northern flying squirrel, eastern box turtle, wood turtle, timber rattlesnake, cerulean warbler, great blue heron and northern goshawk.  They also contend that drilling and associated road-building contribute to increased erosion and water pollution, and that noise caused by the drilling spoils visitors’ experience.

Energy extraction in the national forests is allowed because of the “multiple-use” concept that the Forest Service (FS) is required by law to observe in its management of the national forests.  As I wrote in a previous CPRBlog entry, legislation in the 1960s and 1970s recognized the importance of a wide range of uses of the national forests, including for recreation and as fish and wildlife habitat.  But from their inception, the national forests have been designated for “multiple uses” -- including extractive uses like drilling and timber harvesting. 

So what’s unusual about what’s going on in the Allegheny National Forest?  Critical analyses required by federal law that would normally inform the FS’s balancing of the uses at stake are being omitted.  The National Environmental Policy Act (NEPA) would normally require preparation of an environmental assessment to explore the environmental impacts of extraction activities on federal land, and depending on the severity of those impacts, possibly a full environmental impact statement.  While NEPA would not preclude drilling, the environmental impacts analysis would give the public a chance to participate in the proceedings and could result in enhanced mitigation measures.  However, since a 1983 decision by an Assistant Secretary of Agriculture, the FS has taken the position that NEPA doesn’t apply to private oil and gas drilling  in the ANF.     

How can oil and gas drilling be “private” when it occurs on national forest lands?  In 1911, Congress passed the Weeks Act, which allowed the federal government to buy land in the Eastern United States for the establishment of national forests.  The ANF, established in 1923, is made up of land acquired pursuant to that authority.  By then, the surface and subsurface rights had already been split.  Instead of purchasing both surface and subsurface rights from private owners, the federal government opted to maximize the surface area it purchased while not buying the rights to much of the subsurface below those areas.  Although entirely consistent with the Weeks Act’s objectives of protecting and restoring eastern forests in the headwaters of navigable streams for flood prevention purposes, the decision has resulted in a fractured complex of rights in the Allegheny, where 93 percent of the subsurface mineral rights are held privately. 

The dispute between the public and private interests at stake in the ANF (and by extension, other eastern forests with privately held subsurface mineral rights) has come to the fore in recent months, thanks not only to the increased interest in the Marcellus Shale reservoir but also to a lawsuit filed by environmental groups and a regulatory proposal by the FS. 

The lawsuit, filed by the Allegheny Defense Project, the Sierra Club and Forest Service Employees for Environmental Ethics, contends that the FS is illegally failing to perform NEPA analysis on private drilling projects within the ANF (in contravention of its own practice in other eastern national forests).  The FS hasn’t yet filed its answer to the complaint.  The Pennsylvania Oil & Gas Association (POGAM) has moved to intervene, arguing that the agency is “obligated as a matter of law to accommodate oil and gas development on lands with privately owned” mineral rights.  So, the argument goes, the FS's approval of such projects doesn’t constitute the kind of discretionary federal action that would trigger NEPA. 

Indeed, Steve Rhoads, president of POGAM claims that the private mineral rights are “absolute,” and that the FS has only “a limited non-regulatory role” in seeking accommodations to address surface impacts.  The trade group is therefore unhappy with the FS’s recent proposal  to issue regulations “to provide clarity and direction on the management of National Forest System surface resources where the mineral estate is privately held.”  (The FS reopened the comment period for that proposal on March 12.) 

Let's hope either the rulemaking process or the lawsuit will result in a proper balancing of the private and public interests at stake in the Allegheny.  To truly live up to its mandate of “multiple-use” management, the FS should engage in informed balancing of those uses.  While private mineral rights holders can’t be precluded from accessing their resources, the FS should conduct environmental assessments under NEPA to gather information on the environmental impacts of drilling operations and gain public input on alternative means of access and mitigation measures.  Indeed, the Department of the Interior has determined that the FS has that authority over the private mineral estate within the Monongahela National Forest in West Virginia.  The Forest Service ought to exercise its authority soon to “establish reasonable conditions and mitigation measures to protect federal surface resources, including endangered species” in the Allegheny, as well.