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baltimoresun.com

Gansler's fracking lawsuit: Polluters and watchdogs

Our view: Maryland's attorney general goes after a Pennsylvania gas driller but chooses not to champion a critical environmental cause closer to home

6:00 AM EDT, May 9, 2011

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Lawsuits brought by government and private parties to address damage done to the environment became a necessary fact of life in this country long ago. In a perfect world, perhaps nobody would pollute — or at least those who did would immediately and appropriately be corrected by a government agency. But the real world sometimes requires court orders.

It is in that context that Maryland Attorney General Douglas F. Gansler's recent decision to file notice of intent to sue Chesapeake Energy Corp. over a recent spill of hydraulic fracturing fluid in Pennsylvania is entirely appropriate. The April 19 incident in north-central Pennsylvania may prove to have been the worst spill of its kind in the state.

Federal and Pennsylvania authorities may yet take action against the drilling company, but it is Mr. Gansler's job to look out for the interests of the Maryland portion of the Susquehanna River and Chesapeake Bay, where polluted waters in eastern Pennsylvania eventually flow. The "fracking" fluid used to recover natural gas from the Marcellus shale deposit may contain any number of toxic chemicals that could easily find their way 200 miles downstream.

Mr. Gansler has demonstrated a willingness to tackle controversial environmental issues before. As a candidate five years ago, he promised that if elected he would use the authority of the attorney general to protect the waters of the Chesapeake Bay and its tributaries. He eventually held a series of outreach meetings to hear community concerns over polluters.

More recently, he supported legislation to give environmental groups greater "standing" in court to bring lawsuits against polluters and balky regulators. The state legislature approved such a bill two years ago, although Mr. Gansler had actually endorsed a stronger alternative that was preferred by the green community.

So it is more than a little ironic that while Mr. Gansler is leading the charge against the environmental consequences of fracking in the Keystone State, he is simultaneously being far more cautious about such civil actions here in the Old Line. Last month, he filed a brief in Maryland's highest court that environmental advocates believe could limit standing in a case where the distance between a polluter and his alleged victim is only 81/2 miles.

The case, Patuxent Riverkeeper v. Maryland Department of the Environment, turns on whether the plaintiff has the right to challenge a wetlands permit that allowed construction of a bridge as part of a commercial development in Prince George's County. The claim is that its construction harmed the Patuxent River and that runoff from the site continues to cause damage downstream.

How could Mr. Gansler crusade for a 200-mile case in Pennsylvania but not for an 81/2 -mile dispute within his own state? According to attorneys in his office, the brief filed in the matter does not take sides but merely clarifies existing state law.

Environmentalists see it differently. They believe the filing reveals a very conservative interpretation of the law, inconsistent with an attorney general looking for polluters 200 miles away. Nor do they see it as impartial, noting its claim on page 30 of the 34-page filing that the bridge in question has not "created sedimentary effects downstream from the site."

Clearly, it's easier for an attorney general to take action against a polluter with no apparent ties to the state. And Mr. Gansler's office has the unenviable task of having two masters: the voters who elected him and the Maryland Department of the Environment, which issued the permit. The interests of the two parties don't always align.

Mr. Gansler may argue that his office is merely giving neutral legal advice, but if so, he doesn't appear to be following the same advice in Pennsylvania. The two-year-old state law on legal standing is essentially identical to the federal law that allows his potential fracking lawsuit to move forward.

Reasonable people can differ on what the law allows. But we would also like to believe that when Mr. Gansler promises aggressive action against polluters, that includes pollution taking place closer to home or under the authority of a state agency.

That doesn't diminish the attorney general's efforts to protect Maryland waters from fracking fluid. Maryland has such shale deposits, too, and it was disappointing that the General Assembly declined to impose a two-year moratorium on drilling permits this year so that the impact of fracking could be studied further.

But everyday storm water runoff is a serious issue for water quality, too, and has been identified as such by the U.S. Environmental Protection Agency and others. If Mr. Gansler is going to interpret the law, he ought to do so from the vantage of someone who seeks to protect Maryland's natural resources as vigorously as he has so often promised to do.