By Audrey Carleton, Capital & Main
On the same day that the Pennsylvania Attorney General’s Office reached a plea agreement with an energy company on charges of environmental crimes dating back more than a decade in the town of Dimock, state regulators quietly signed a consent order allowing the company to drill beneath an area that had been subject to a 12-year moratorium on such activity. The decision has outraged residents who’ve lived with the pollution tied to Coterra Energy’s previous fracking activity and endured over a decade in which they’ve lacked access to clean water for their homes.
“We’re just goddamn puppets,” said Ray Kemble, 30-year Dimock resident of the 9-square-mile moratorium zone and water pollution victim, who stood next to Attorney General and Gov.-elect Josh Shapiro the day he applauded his office for reaching a conclusion to the years-long battle for clean water in the area.
On November 29, Coterra Energy and the Pennsylvania Department of Environmental Protection (DEP) signed a consent order allowing the operator, one of the largest natural gas producers in the state, to drill laterally beneath an area that has been mostly fracking-free since 19 households found methane in their water in 2008 and 2009. On November 4, 2009, the DEP signed a consent order tying drilling by Coterra — then called Cabot Oil and Gas, prior to a merger with Cimarex Energy Co. in 2021 — to household water pollution, banning the company from drilling new natural gas wells in the area entirely. Following the new consent order, Coterra will now be allowed to drill horizontally underneath the 9-square-mile protected zone, as long as the top hole of a well is drilled outside of it. (Fracking involves drilling vertically for thousands of feet underground, then horizontally, carving an L-shaped path.)
The consent order was not announced to residents nor mentioned during a November 29 plea hearing at which many celebrated a long-sought victory: Coterra agreed to pay $16.29 million for clean water wells and a water line to provide clean water to residents who have been deprived of such for over a decade, as well as $58,000 to each affected household to cover its water bills for the next 75 years. The new order allowing lateral drilling represents the fulfillment of a request Coterra has made to regulators numerous times over the last 13 years.
“Based upon the remedial work of Cabot … Coterra is requesting that the Department allow new drilling and hydraulic fracturing of wells with surface locations outside the Dimock/Carter Road Area and laterals that traverse under and produce the Dimock/Carter Road Area,” the consent order reads. “New drilling or hydraulic fracturing is currently restricted by the 2010 COSA.”
Environmental groups around the state have expressed disappointment in the DEP’s decision, including Karen Feridun, head of the Better Path Coalition, which advocates for clean energy in the Keystone State. When she got word of the new consent order, Feridun quickly launched an online petition calling on Shapiro to ban fracking in Dimock entirely — as of the morning of December 16, it had more than 1,100 signatures. Feridun’s coalition is also planning a protest for Shapiro’s inauguration on January 17.
In a statement published Tuesday, Megan McDonough, Pennsylvania state director at environmental advocacy group Food and Water Watch, called the new consent order “outrageous” and a “gift” by current Gov. Tom Wolf’s administration to the fossil fuel industry.
“Reaching this deal on the very same day that Coterra was in court for contaminating Dimock’s water raises serious questions about what was going on behind the scenes in the Wolf administration,” McDonough said. “This unconscionable action is a betrayal of suffering communities that are still years away from a permanent solution that will restore their access to clean water.”
Anthony Ingraffea, a professor of engineering emeritus at Cornell University who once served as an expert witness for Dimock residents in their class action suit against Coterra Energy, told Capital & Main in early November that he feared any victory in the attorney general’s case could come at the expense of the 9-square-mile moratorium. A $16 million fine pales in comparison to the profits that could be reaped from what Ingraffea says is the “richest shale resource area currently known to man.”
“Anywhere you drill in there is guaranteed to be so profitable that your stock price would probably double,” he said at the time.
“Coterra gets a multibillion dollar reward for not being found guilty of anything,” he told Capital & Main more recently.
The DEP entered into negotiations with Coterra around the order in early 2022, the Associated Press reported Monday. At that point, the natural gas driller “committed to strict controls, monitoring and evaluation” amounting to “some of the most restricted conditions on any drilling in the commonwealth,” agency press secretary Jamar Thrasher told the news wire’s Michael Rubinkam. Gov. Tom Wolf told the AP he was “satisfied” with the DEP’s move as well.
The order sets out terms for Coterra’s lateral drilling beneath the 9-square-mile moratorium zone, including that the operator “case and cement a well to … [p]revent pollution or diminution of fresh groundwater,” and “prevent gas, oil, brine, completion and servicing fluids” from “entering fresh groundwater.” The DEP confirmed to Capital & Main in November that Coterra had been cited for 1,167 environmental violations since the first consent order was drafted in November 2009 and it was originally banned from new fracking in the moratorium zone.
The water line is referenced in the consent order, mandating that Coterra fulfill its $16.29 million agreement with the Attorney General’s Office by 2027, a date that the order notes could be subject to change. The order also requires that Coterra offer residents water treatment in the meantime, but it does not include mention of water delivery as was spelled out in the November 29 plea hearing. As Capital & Main reported previously, some Dimock residents are skeptical of water treatment systems and at least one system repeatedly failed. Should residents reject the systems this time around, Coterra will be deemed to have met its obligations to secure them clean water should they deposit money into a “mitigation fund,” the order notes.
The gas company’s ability to drill laterally appears partially contingent upon the company offering residents water treatment systems. Coterra appears to be moving quickly to fulfill this requirement; company representatives have already contacted several residents about systems. One resident who spoke to Capital & Main on the condition of anonymity said they were contacted by a Coterra representative within a few days of the November 29 plea hearing.
“Whomever negotiated this behind closed doors without our knowledge, consent or approval has not asked our opinions, given us options, or even gone over it with us,” the resident said of the new consent order.
The Attorney General’s Office assured Capital & Main that Coterra is “bound” by the plea agreement, “which includes water treatment systems and/or bottled water delivery until the water line is up and running.” A spokesperson also noted that the Attorney General’s Office had no role in the drafting of the consent order, or in its timing on the date of the plea hearing.
“Our office plays no role in DEP’s regulatory decisions,” Jacklin Rhoads, communications director at the Pennsylvania Office of Attorney General, said by email. “The only agreement announced last month that our office played a part in was convicting Coterra and securing resources to finally build a public water supply in Dimock.”
The new consent order represents a jarring about-face for residents savoring a long-sought resolution to their plight.
“This is a joke,” said Craig Stevens, landowner in neighboring Montrose and community anti-fracking activist, who worries that the proposed activity could pollute their homes again. “They can reach the center of that [9-square-mile box] from any edge.”
“This is a cop-out,” Stevens added. “They didn’t fix the problem. They haven’t restituted the victims properly, nor do they have clean water. And they’re gonna let them drill underneath.”
The plea hearing was celebrated as an environmental victory of sorts for the state’s new governor, Attorney General Josh Shapiro, who takes office in January. Shapiro’s office charged Cabot Oil and Gas with 15 counts of environmental crimes in June 2020. After several years with no resolution and no formal court hearing scheduled, residents told Capital & Main they felt left behind, as the attorney general appeared to turn his focus to winning his election. Several residents, including Kemble, said they hoped for a water line that would pipe clean water to their homes — they had spent years getting creative with finding water supplies. Kemble, for instance, has for years trucked miles away from his home weekly to refill two 500-gallon tanks that sit in his basement and feed his faucets.
A matter of days after his election, Shapiro’s office informed residents that a plea hearing would be scheduled and a water line was in sight. After the hearing, Shapiro held a press conference applauding his office’s work in pursuing justice for Dimock families. What was not announced was a change of terms to the moratorium that had been reached the same day — in fact, when asked about Coterra’s future prospects in the area at the press conference, Shapiro deferred to the DEP.
“When you’re governor, will Coterra be allowed to resume drilling and operations in the 9-square-mile box?” one reporter asked at the press conference.
“That’s obviously a question for the regulators, not for the Attorney General’s Office,” Shapiro said. “Certainly it’s an issue that we will review upon taking office.”
Days after that, residents quietly learned that the terms governing Coterra’s fracking in their area had changed.
Victoria Switzer, a 19-year resident of Dimock who spoke at Shapiro’s press conference on the November 29 hearing told Capital and Main she feels “duped.” Switzer says she asked a representative from the AG’s office at an earlier meeting directly about the possibility of a trade — water line for protected drilling rights — and was told that the matter was under the purview of the DEP.
“I’m just reeling from the decision,” Switzer said.
“I just feel like I’m in a worse situation than I was before I met the AG.”
Though the AG’s office confirmed it had no role in the drafting of the consent order, Kemble told Capital & Main he feels lied to by regulators. But he remains hopeful that in his capacity as governor, Shapiro could order the DEP to write a new consent order to rescind this one. “I’m praying to God that he was a victim in this whole thing with us.”
Feridun is slightly less optimistic. “Shapiro … punted on the question about the moratorium, saying Wolf was still in charge,” she said. “He doesn’t get to do that any longer. He owns this now.”
In a comment emailed to Capital & Main, the DEP underscored that vertical drilling within the zone will remain prohibited. The consent order also requires Coterra to plug several wells within the moratorium zone by 2032.
“Not allowing surface impacts inside the box avoids the possibility of spills and releases impacting water resources. DEP did not want Coterra drilling vertical portions of new wells in the area before [unplugged wells that will soon be plugged] are addressed,” Thrasher told Capital & Main. “DEP did not want Coterra drilling vertical portions of new wells that may intersect the groundwater aquifer before public water was available in the area.”
When asked to comment on potential environmental impact of lateral drilling beneath the zone, DEP did not respond by publication time.
But Coterra will now be permitted to drill vertically immediately outside the moratorium zone — and horizontally beneath it. Though the company will be required to submit an “operations monitoring plan” to the DEP for any well it wishes to drill beneath the area, residents worry that freeing up the region around the 9-square-mile zone will shepherd in a new era of drilling and all of the environmental externalities that come with it: water pollution, truck traffic, noise, late-night flaring and the like. Memories of these side effects of the fracking boom still haunt some in this community, which has long been splintered on the issue of natural gas drilling.
Capital & Main reached out to Coterra Energy and did not hear back by publication time.
In the years since the last consent order was signed in December 2010, leaving homeowners with funds in escrow accounts but without sources of clean water, the DEP found several additional instances in which private water wells had been polluted — instances they tied to Cabot’s failure to properly cement and case their gas wells.
As of February 2019, 12 of the 18 water supplies originally affected by Coterra’s activity in the aughts have not seen their water return to pre-fracking quality, the consent order notes.
The consent order also charges Coterra a $444,000 civil penalty.