Jun 07 2011

Confronting Marcellus Shale Drilling Issues for Client Helps Clinic Student Develop Legal Skills

Published by at 4:11 pm under Uncategorized

The Environmental and Natural Resources Law Clinic had barely opened on the Harrisburg campus when the second phone call to its Environmental Help Line influenced the course of student Jon Johnson’s future.

 Johnson, who was one of a handful of students who helped expand the Clinic to the Harrisburg campus, knew nothing about hydraulic fracturing, or “fracking” – the process used to unearth natural gas from shales deep beneath the earth’s surface. But the call from a resident of Damascus, Pa. near the Pennsylvania-New York border in Wayne County, changed everything.

 Weeks later, Johnson, fellow clinic intern Claire Gargiulo and Associate Professor and Clinic Director Kenneth T. Kristl were sitting in a Wayne County, Pa. living room surrounded by about a dozen concerned citizens who were behind that phone call. The citizens had been approached by gas companies who wanted to drill on their properties, or lived near people who were selling drilling rights. As he gazed out at the Delaware River from a picture window in that living room, Johnson began to learn about the risks and damage that can accompany drilling.

 “I spent many hours after that throughout the summer, trying to find any way I could to help them,” Johnson said, estimating he has since logged about 150 volunteer hours in service of that one Clinic client. “I do research everyday on gas drilling and hydro fracking.”

 Fracking involves injecting a complex mix of chemicals deep into the earth to free the natural gas, which is trapped 500 to 8,000 feet below in the geologic formation known as Marcellus Shale. The shale underlies much of Pennsylvania. Nationally, fracking and related gas-drilling activities have led to contaminated water supplies and been linked to public health problems. The Oscar-nominated “Gasland” documentary chronicled the tribulations of people who live near natural gas wells.

 The Clinic took on the residents as clients. Johnson began writing letters to the township, arguing they were letting gas companies drill in violation of township zoning. The Clinic threatened to sue.

 Johnson, 35, has a background in electrical and mechanical engineering. The married father of two enrolled in Widener’s extended division in 2007 and continued to work full time as he pursued his law degree. A native of south Texas, he is a long-time resident of Berks County, Pa. Natural gas extraction and fracking have become big issues in Pennsylvania, with thousands of wells drilled or planned to tap the Marcellus Shale. For Johnson, the matter quickly became personal.

 Through his research, Johnson learned the clients lived in the Delaware River Basin, an area of more than 13,000 square miles that includes the longest un-dammed river east of the Mississippi and 216 tributaries. It provides water for drinking, agricultural and industrial use to more than 15 million people. The Delaware River Basin Commission is the regional body that regulates the river system.

 Johnson learned the commission, made up of the governors of the four basin states – Delaware, New Jersey, Pennsylvania and New York – and the commander of the U.S. Army Corps of Engineers North Atlantic Division, already had two pending applications for natural gas drilling.

As the Clinic’s clients formed into a group known as Damascus Watch, the commission moved to put all drilling applications on hold while it developed regulations that would govern the practice. And, it invited public comments. Kristl asked Johnson to draft comments on behalf of Damascus Watch.

Johnson got to work in February 2011.

The result was a nine page public-comment document completed two months later that made two major arguments. First, it maintained the proposed regulations would violate the commission’s compact – designed to create a uniform set of rules throughout the Delaware River Basin – by giving regulatory control to the individual compact states. Second, it argued the commission cannot enact regulations because it has failed to complete an assessment of what drilling would do to the environment, as required by federal law. Subsequent to the filing of the Clinic’s comments, the State of New York sued the DRBC in New York federal court on the basis of the same failure to perform an environmental assessment

Johnson said the experience taught him to write concisely, avoid legalese and stick to the main issues that have the best chance of winning.

“More than 90 percent of the final document was written by John,” Kristl said. “He kept generating drafts and we would talk about his points and help him focus the argument and make it stronger. As the document evolved, I could see Jon’s skill and confidence grow. This became a real capstone experience in Jon’s legal education.”

Kristl said he was pleased to see the Clinic provide Johnson such an educational opportunity and the citizens such a vital service. It cemented his belief that Widener was wise to expand the Clinic to the Harrisburg campus in spring 2010. The Clinic began operations on the Delaware campus 21 years ago.

“Cases like this demonstrate how Clinics play such a key role in our service-learning approach,” Kristl said. “Jon represented real people, he honed his research and legal writing skills and he worked to make a difference in the community. Jon grew as a lawyer and is better-equipped for the legal career that awaits him. That’s rewarding for him and fulfilling for me as the professor who guided him.”

As Damascus Watch and the Clinic await the commission’s next move, Johnson is getting used to the fact he has had to walk away from the case to make room for the next generation of Clinic interns. He graduated in May and wants to practice environmental law. He hopes to secure a job at a midsize firm with an environmental litigation department. But first, he is focused on passing the bar. He is grateful for the Clinic experience.

“As I got involved with it, I found where I should be,” he said.

 Reach the Environmental and Natural Resources Law Clinic Environmental Help Line at 888.953.6853.

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