Volume XXIX, Issue 1

Congratulations to the following staff writers whose articles will be published in Volume 29 Issue 1 of the Villanova Environmental Law Journal:

There’s Something in the Water: How Apathetic Sate Officials Let the People of Flint, Michigan Down – Kyle Conway

Rising to the Surface: The EPA’s Addition of Subsurface Intrusion as a Component of the Superfund Hazard Ranking System – Kristen Harvilla

Fifteen Minutes of Shame: Social Media and 21st Century Environmental Activism – Chase Karpus

What’s All the Buzz About? Analyzing the Decision to List the Rusty Patched Bumblebee on the Endangered Species List – Christopher Lambe

Move Over Diamonds – Plastics Are Forever: How the Rise of Pollution in Water Can be Regulated – Stephanie Wood

Volume XXVIII, Issue 2

Congratulations to the following staff writers whose articles will be published in Volume 28 Issue 2 of the Villanova Environmental Law Journal:

Order Restored? Even Federal Agencies “Accountable” for NEPA, ESA Violations But Project to Proceed: Examining Pub. Emples. for Envtl. Responsibility V. Hopper – Nicole Haiem

Delta Construction Company, Incorporated v. Environmental Protection Agency: Putting the Brakes on Challenges to Unfair Agency Regulation of Greenhouse Gas Emissions and Fuel Economy in Light and Heavy Duty Vehicles – Sabrina Peterman

Ohio Valley Environmental Coalition, Inc. v. United States Army Corps of Engineers: Fine Tuning the Scope of the Corps’ Jurisdiction – Mitchell Ream

Hazardous Substance Emitters in Pakootas v. Teck Cominco Metals, Ltd. are on Cloud 9: 9th Circuit Determines That Airborne Emissions Are Not Within the Purview of CERCLA Liability – Holly Sofield

Zone Defense: How Zoning Laws Won in Tri-County Landfill, Inc. v. Commonwealth of Pennsylvania – Christyan Telech

United States v. Citgo Petroleum Corporation: The Fifth Circuit “Takes” Oil Refinery Off the Hook for Unintentional Migratory Bird Deaths – Cody Wilcoxson

Volume XXVIII Issue 1

Congratulations to the following staff writers whose articles will be published in Volume 28 Issue 1 of the Villanova Environmental Law Journal:

Cecil the Lion: The Everlasting Impact on the Conservation and Protection of the King of the Jungle – Madison Clemens

“Just What the Doctor Ordered”: Regulating Pharmaceutical Contamination of Our Nation’s Water Supply – Phillip Harrinarine

The Lungs of Our Land: Deforestation and Climate Change’s Destructive Circular Relationship – Meghan Micciolo

Criminal Prosecution for Environmental Lawbreakers: Is it Really Working? – Christina Russo

What Does “Green” Really Mean”: How Increased Transparency and Standardization Can Grow the Green Bond Market – Kevin Talbot

Volume XXVII Issue 2

Congratulations to the following staff writers whose casenotes will be published in Volume 27 Issue 2 of the Villanova Environmental Law Journal:

Shhh: Eighth Circuit Puts Conservationists Intervenor to Bed in Quiet Title Action in North Dakota Ex Rel. Stenehjem v. United States – Matthew Arnold

There’s Something in the Water: The EHB Oversteps its Mandate and Disregards Contract Law in Robinson Coal v. Department of Environmental Protection Ryan Duffy

Michigan v. E.P.A.: Money Matters When Deciding Whether to Regulate Power Plants – Ruby Khallouf

Sorry, Access Denied: Department of Environmental Protection v. Delaware Riverkeeper Network and the Relationship between the Public’s Right to Know and an Agency’s Right to Conceal  – Aya Samra

‘Cracks’ in the Court’s Analysis? Court Strikes Balancing Act Between Citizens’ Constitutional Rights and Government’s Exploitation of Natural Resources in Pennsylvania Envtl. Def. Fund. v. Commonwealth of Pennsylvania  – Gabriella Soreth

Oneok, Inc. v. Learjet, Inc.: The Supreme Court Narrows the Preemptive Scope of the Natural Gas Act and Extracts a Win for State Courts – Alexander Torres

Pennsylvania Courts Decline to Take a Step Toward Safer Hydraulic Fracturing

By: Danielle A.  Quinn

Imagine spending over a million dollars to build your dream home only to have your water contaminated by methane gas from a drilling operation on your neighbor’s property, a mere 1,000 feet away.[i] As a result, you are forced to house a large, unsightly, plastic container on your property to store potable, non-drinking water so your family has a water supply.[ii] This imagined scenario is the exact nightmare that a family in Susquehanna County, Pennsylvania is currently facing.

“For decades, courts have uniformly refused to find that oil and natural gas drilling and related activities are ultra hazardous or abnormally dangerous, and thus have found that such activities are not subject to strict liability under tort law.”[iii] On November 19, 2009, however, Pennsylvania was “invited to take a step which no court in the United States [had] chosen to take, and declare hydraulic fracturing to be an ultra-hazardous activity that gives rise to strict tort liability.”[iv] Unfortunately, after years of litigation, and the majority of plaintiffs settling, Judge Jones of the Middle District of Pennsylvania dismissed the plaintiffs’ claims alleging hydraulic fracturing should be subjected to strict liability for being an ultra hazardous activity.[v]

In granting the defendant’s motion for summary judgment on the strict liability claim, the court adopted, in full, the Report and Recommendation of Judge Carlson. In his report, Carlson emphasized how common fracking in Pennsylvania is now, and the economic and societal benefit of fracking. He noted “that since 2000, 649 wells have been drilled in Susquehanna County, Pennsylvania alone, 99.5% of which have been hydraulically fractured since 2009.” [vi] Furthermore, since “1859, more than 350,000 natural gas wells have been drilled in Pennsylvania.” [vii] In addition to the substantial number of wells that have been drilled, the Marcellus Shale Education and Training Center report on drilling “found that each new well drilled in the Marcellus Shale generated 30 jobs and $4 million in total output within Pennsylvania’s economy.”[viii] Carlson also analyzed the Restatements six factors to determine whether an activity is ultra hazardous or abnormally dangerous. In doing so, he determined that properly executed drilling operations, conducted in appropriate areas, coupled with the economic and community benefit outweighed the risk involved with hydraulic fracturing.[ix]

While properly drilled wells may pose little threat to neighboring properties and well water sources, Yale University conducted a study in 2012, which  surveyed 492 people in southwestern Pennsylvania and showed that 39% of people living within a mile of a well reported having upper respiratory symptoms while only 18% of those who lived further away reported similar problems.[x] Similar results were shown when asked about skin irritation.[xi] While these results appear to indicate that fracking is causing these symptoms, the authors of the study recognize that more research needs to be done to support that conclusion.[xii]

Two years after the Yale study was conducted, scientists from universities around the country studied the gas content of “113 drinking-water wells and one natural methane seep overlying the Marcellus shale in Pennsylvania, and [] 20 wells overlying the Barnett shale in Texas.”[xiii] The study analyzed the “noble gases and their isotopes in groundwater near shale gas wells.”[xiv] The data ultimately “appear[ed] to rule out gas contamination by upward migration” from where horizontal drilling or hydraulic fracturing occurred to the underground aquifer.[xv] Rather, the results showed that the gas contamination came from much shallower depths.[xvi] Thus, the researchers concluded that hydraulic fracturing is not the cause of the contamination; rather, it is caused by “well-integrity problems such as poor casing and cementing.”[xvii] Moving forward, knowing that the structural integrity is the source of the contamination, oil and gas companies may be able to focus on how to prevent groundwater contamination by drilling safer wells.

Although this is the first in-depth study to examine the issue of groundwater contamination from fracking wells, it is certainly not the last; especially with the ever growing controversy and concerns that surround the hydraulic fracturing practice. While this study was not published at the time Judge Carlson issued his report and recommendation, it strongly backs-up his position that hydraulic fracturing should not be considered an ultra hazardous activity; at least regarding groundwater contamination. But, all is not lost for the plaintiff family though because the issue of negligence is still pending before the court and studies, such as the one referenced above, will help make a stronger argument that the gas company was negligent in drilling and maintaining their well.

[i] Gina Passarella, Drilling Contamination Case Narrowed Against Cabot, The Legal Intelligencer, http://www.thelegalintelligencer.com/home/id=1202715050360?cn=20150113&pt=PM%20Legal%20Alert&src=EMC-Email&et=editorial&bu=The%20Legal%20Intelligencer&slreturn=20150016092034 (January 14, 2015) (giving background of plaintiffs situation and how groundwater contamination effected them).

[ii] Id. (explaining consequences of contaminated well water).

[iii] Ely v. Cabot Oil & Gas Corp., 38 F.Supp.3d 518, 520 (M.D. Pa. 2014) (giving history of strict liability applied to fracking).

[iv] Id. at 519. (stating Pennsylvania could set new precedent for fracking liability).

[v] See Id. at 520. (dismissing claim that fracking is ultra hazardous and thus subject to strict liability). In 2009 when the case began, there were 44 plaintiffs and two defendants in the case; today there are only 10 plaintiffs and one defendant. See Gina Passarella, supra note 1.

[vi] Id. at 523 (providing statistics about fracking in Pennsylvania and Susquehanna County).

[vii] Id. at 524 (providing statistics about fracking in Pennsylvania and Susquehanna County).

[viii] Ely, 38.F.Supp.3d 518 at 524. (giving statistics on financial impact of drilling in Pennsylvania).

[ix] See Id. at 529-33. (applying Restatements six factor test to case facts).

[x] Wendy Koch, People Near “Fracking” Wells Report Health Woes, USA Today, http://www.usatoday.com/story/money/business/2014/09/10/people-near-fracking-wells-health-symptoms/15337797/ (Sept. 10, 2014) (detailing Yale study of people’s health living near fracking wells).

[xi] Id. (noting statistics for skin irritation). “While 13% of those within a kilometer of a well said they had rashes and other skin symptoms, only 3% of those beyond 2 kilometers said the same.” Id.

[xii] Id. (suggesting results could also be caused by air contaminants, diesel exhaust from equipment, or leaks in well casings).

[xiii] Duke University, Contaminated Water in 2 States Linked to Faulty Shale Gas Wells, EurekAlert, http://www.eurekalert.org/pub_releases/2014-09/du-cwi091014.php (Sept. 15, 2014) (Explaining study conducted by scientist on groundwater contamination near wells). The study examined “eight clusters of wells — seven in Pennsylvania and one in Texas — with contamination, including increased levels of natural gas from the Marcellus shale in Pennsylvania and from shallower, intermediate layers in both states.” Id.

[xiv] Id. (explaining what gases were analyzed and their origin).

[xv] Thure E. Cerling, Noble gases identify the mechanisms of fugitive gas contamination in drinking-water wells overlying the Marcellus and Barnett Shales, Proceedings of the National Academy of Science of the United States of America, http://www.pnas.org/content/111/39/14076, (Aug. 12, 2014) (detailing study conducted on groundwater contamination of wells located in clusters around drilling sites).

[xvi] See Id. (concluding contamination source was not at depths where horizontal fracking occurred).

[xvii] For a further discussion on the results of the study, see Duke University, supra note 13.

Volume XXVII Issue 1

Congratulations to the following staff writers whose comments will be published in Volume 27 Issue 1 of the Villanova Environmental Law Journal:

Bakken Crude and the Ford Pinto of Railcars: The Growing Need For Adequate Regulation of the Transportation of Crude Oil By Rail – Evan Busteed

Caution: Hazards Ahead! How EPA’s Refusal to Classify Coal Ash as Hazardous Waste Fuels Environmental and Public Health Concerns – Brittany Daniels

Don’t Eat the Brown Snow! Utilizing Wastewater for Artificial Snow: A Slippery Slope between Protecting Skiers and Encouraging Water Reuse – Katie Duquette

Hostility Toward the Clean Power Plan: Examining Why the Power Plant Rule Faces Early Litigation and Why it Raises Key Legal Questions – Meredith Lussier

Congress, Give Renewable Energy a Fair Fight: Congress’ Passage of the Master Limited Partnerships Parity Act Would Give Renewable Energy the Financial Footing Needed To Independently Succeed – David Magagna

It’s Easy Being Green When You’re Not

By: Peter Fonash, Staffwriter

Bamboo is touted as an eco-friendly material for flooring and furniture. It is eco-friendly because it grows quickly with little need for pesticides, it can be harvested without killing the parent plant, and, as luck would have it, it is easy to maintain.[1] As a result, bamboo has seen increasing use as an “industrial raw material and substitute for wood.”[2]

Naturally, corporations are eager to capitalize on the increasing number of environmentally conscious consumers by advertising their products as ‘green’ because they are made from bamboo. For some bamboo products, like flooring and furniture, these claims are true. With “soft” bamboo products, however, like shirts and sheets, these claims are often half true or are even patently false.[3] Indeed, companies have claimed their clothing is 100% bamboo fiber when, in fact, the clothing is made out of rayon, which is a synthetic material.[4]

Much of the issue derives from the production of rayon. Rayon is “created from the cellulose found in plants and trees and processed with a harsh chemical that releases hazardous air pollutants.”[5] Any cellulose source, including bamboo, is sufficient to use in the production of rayon. While a rayon product is technically made with or from bamboo when bamboo is used as this cellulose source, it is far from 100% bamboo fiber. Notably, in contrast to the manufacture of bamboo, which can be fairly ‘green,’ manufacturing rayon uses toxic chemicals, resulting in the emission of hazardous air pollutants.[6]

In recent years, many corporations have falsely claimed their rayon products are eco-friendly because they are made from bamboo, thereby misleading consumers and opening themselves up to liability. Two instances serve as useful examples, the first in 2009 and the second in 2013. In both instances, the Federal Trade Commission (FTC) brought complaints against the participating corporations.  

In 2009, the FTC charged Jonäno, Mad Mod, and Pure Bamboo, with “deceptively labeling and advertising” some of their products as “made of bamboo fiber, when they are made of rayon.”[7] The FTC, moreover, charged these sellers with “making false and unsubstantiated ‘green’ claims that their clothing and textile products are manufactured using an environmentally friendly process, that they retain the natural antimicrobial properties of the bamboo plant, and that they are biodegradable.”[8] The FTC charged that the seller’s products were made of rayon that was made with bamboo, rather than being made from pure bamboo, and that the seller’s process for manufacturing these products was not in fact environmentally friendly.[9] The sellers, in response to the charges, settled with FTC, agreeing to “use the proper names to label and advertise the fibers in their products.”[10]

Later, in 2010, FTC sent letters to Amazon.com, Leon Max, Inc., Macy’s, and Sears warning the companies they were violating the “Textile Products Identification Act and the FTC’s ’Textile Rules’ by mislabeling and advertising products as made of bamboo.”[11] It was not until three years later, in 2013, that the four retailers finally settled with the FTC for a combined $1.26 million “for falsely labeling clothing and textiles as made of bamboo.”[12]

Although the offending corporations agreed to cease making false claims in both instances, the second instance highlights that it can take years for corporations to accept responsibility and implement the necessary changes. During the interim, consumers are vulnerable to false claims. Moreover, prior to receiving FTC warnings, corporations may be unaware that their claims are illegal. To avoid these issues, consumers and corporations alike should read FTC publications designed to help both businesses and the public navigate the purchase and sale of bamboo products.[13] This information helps consumers determine when their bamboo purchases are truly green and it guides corporations in making ‘green’ claims about their bamboo products.

 —

[1] See ‘Bamboo’ Fabrics, Federal Trade Commission, http://www.consumer.ftc.gov/articles/0122-bamboo-fabrics(lasted visited Mar. 30, 2014) (discussing uses of bamboo).

[2] Inga Muller and Camille Rebelo, Bamboo Worldwide, EcoPlanet Bamboo, 5, http://www.ecoplanetbamboo.net/files/bamboo_worldwide.pdf (lasted visited Mar. 30, 2014) (listing physical and environmental properties of bamboo making it exceptional resource).

[3] SeeBamboo’ Fabrics, supra note 1.

[4] See Four National Retailers Agree to Pay Penalties Totaling $1.26 Million for Allegedly Falsely Labeling Textiles as Made of Bamboo, While They Actually Were Rayon, Federal Trade Commission (Jan. 3, 2013), http://www.ftc.gov/news-events/press-releases/2013/01/four-national-retailers-agree-pay-penalties-totaling-126-million(charging four companies for false bamboo claims); see also FTC Charges Companies with ‘Bamboo-zling’ Consumers with False Product Claims, Federal Trade Commission (Aug. 11 2009), http://www.ftc.gov/news-events/press-releases/2009/08/ftc-charges-companies-bamboo-zling-consumers-false-product-claims (charging three companies for false bamboo claims and unsubstantiated green claims).

[5] FTC Charges Companies with ‘Bamboo-zling’, supra note 4 (explaining Rayon manufacturing process).

[6] See id. (finding further that Rayon products are not “biodegradable because they will not break down in a reasonably short time after customary disposal.”)

[7] Id. (violating Commission’s Textile Fiber Products Identification Act).

[8] Id. (explaining Rayon products are “not biodegradable because they will not break down in a reasonably short time after customary disposal.”)

[9] Id. (citing harsh chemicals used in process).

[10] FTC Charges Companies with ‘Bamboo-zling’, supra note 4 (allowing descriptions like “rayon made from bamboo”).

[11] Susana Kim, Macy’s, Sears, Amazon, Max Studio Fined for ‘Bamboozling’ Customers, ABC News (Jan. 5 2013), http://abcnews.go.com/Business/macys-sears-amazon-max-studio-fined-bamboozling-customers/story?id=18132575 (explaining mechanically processed bamboo cannot be called bamboo); see also Four National Retailers Agree to Pay Penalties Totaling $1.26 Million for Allegedly Falsely Labeling Textiles as Made of Bamboo, While They Actually Were Rayon, Federal Trade Commission (Jan. 3 2013), http://www.ftc.gov/news-events/press-releases/2013/01/four-national-retailers-agree-pay-penalties-totaling-126-million

[12] Retailers Agree to Pay Penalties, supra note 11.

[13] SeeBamboo’ Fabrics, supra note 1; see also Threading Your Way Through the Labeling Requirements Under the Textile and Wool Acts, Federal Trade Commission (May 2005), http://business.ftc.gov/documents/bus21-threading-your-way-through-labeling-requirements-under-textile-and-wool-acts#intro (listing laws governing bamboo labeling and sale).