Questions And Answers For 
Ms. McGinty... And Senator White

 Confirmation hearings are coming up for Governor Rendell’s Cabinet appointees, including Kathleen McGinty, the Governor’s choice to succeed David Hess (http://www.legis.state.pa.us/WU01/LI/SC/NC/0/SCNC.HTM) as Secretary of the Department of Environmental Protection.  A certain amount of jockeying has already gone on, with certain Senators having something to say one way or another about Ms. McGinty and her past record (read her biography and other information at http://www.dep.state.pa.us/dep/mcginty/default.htm). 

One thing in particular struck our eye, a statement by the Chair of the Senate Energy and Environmental Resources Committee, Sen. Mary Jo White, R-Venango:  "Her background gives me reason to believe that she may be a little bit out of step with the mainstream Pennsylvania opinions about the environment. She's coming strictly from the federal government's perspective." http://www.nj.com/news/expresstimes/pa/index.ssf?/base/news-4/104348912156500.xml

 Maybe we should find out what the “mainstream Pennsylvania opinions” and then measure Ms. McGinty’s views against those?  Lucky for us, Ms. McGinty and Sen. White!  There are two recent polls that ask Pennsylvanians their opinions about the environment!  One, commissioned by The Trust for Public Land, questioned folks about environmental programs and how to pay for them ( http://tpl.org/tier3_cd.cfm?content_item_id=8480&folder_id=665 ).

 Pennsylvanians support land conservation, and see it as an avenue to avoiding environmental problems.  When asked about linking land conservation with environmental protection, “survey respondents overwhelmingly identified preserving natural land that protects water quality as the top priority, with 94 percent support.” Looks like some questions are needed on Ms. McGinty’s views on protecting water quality, and protecting land in order to protect water quality.  Obviously, to stay in step with Pennsylvanians, Ms McGinty will have to show strong support for protecting and restoring water quality.  

 Water quality isn’t the only thing on Pennsylvanians’ minds.  “In addition to protecting watershed land, voter priorities included creating local parks (82 percent support), preserving land for outdoor recreation (81 percent), preserving land as fish and wildlife habitat (79 percent), and preserving land to manage growth and development (76 percent).”

 All sounds good, but how do folks expect to pay for this?  The April 2002 poll of likely voters found that “nearly two-thirds of Pennsylvania voters oppose scaling back the state’s current environmental funding programs, and 78 percent support guaranteed state funding to be used exclusively to protect and improve Pennsylvania’s environment.”  Seems like strong support for environmental programs in general, as well as the willingness to pay for them.  Mainstream Pennsylvania wants a clean environment, strong programs to protect it, and is willing to pay for them.   

 Another poll also sheds some light on “mainstream Pennsylvania opinions.”  http://www.voteenvironment.org/pdf/PA_Polling_Memo_June_2002.PDF

This June 2002 poll of registered voters was commissioned by the League of Conservation Voters Education Fund.  It reveals similar attitudes.  The number one concern was water quality, and  a large number (72%) say there is no need to choose between a clean environment and a strong economy.

 Here’s one result that has to do much with the job for which Ms. McGinty is interviewing, but also should give Sen. White some work after the hearings are over: “Seventy-nine percent (79%) of Pennsylvanians believe ‘the laws protecting the environment are either not strong enough and that we need stronger laws,’ or they believe ‘the laws are tough enough but are not enforced and that existing laws should be strictly enforced.’” The number agreeing with the first sentiment (need stronger laws) was 22% while the number agreeing with the second sentiment (need strict enforcement of current laws) was 57%.  So a safe answer for Ms McGinty would be that, in general, she will strictly enforce the laws, and where they are weak, she will assist the legislature in writing new ones.  

 Only 6% thought laws and enforcement were too strict.   So Ms. McGinty should know what to say if Sen. White should, for instance, ask if the oil and gas industry is being unfairly picked on and needs special consideration (a possible question as she worked for Quaker State Corporation for 19 years http://white.pasenategop.com/bio.html ).  The correct answer, if one wishes to keep in step with Pennsylvanians, is an unequivocal “No.” 

The poll results should also give pause to the Senate if they try another attempt to exempt the oil and gas industry from the laws the rest of us obey.   A last-minute, back-door attempt to exempt Pennsylvania’s oil and gas industry from the Clean Streams Law passed in the Senate but failed in the PA House at the end of last year, thanks to conservation and public interest groups’ alertness, and the fortitude of some House members (see http://www.rayproffitt.org/pu2002/12242002.htm and http://www.pennfuture.org/items/index.cfm?action=List&pagename=
Item&backpage=Summary&nodate=1&category=facts&area=news&id=1113&archive=facts_archive).   

 But one area where folks thought stronger laws were needed was the water quality arena:  “Eighty-three percent (83%) of respondents support a proposal that says to ‘enact stronger laws and rules protecting streams and other bodies of water that currently have the highest water quality.’ Those most likely to support this proposal are younger people. Thirteen percent (13%) of people oppose this proposal, and 5% are unsure.” 

 Well, Ms. McGinty, simply tell the Senate that you know that the antidegradation program is specifically designed to protect the waters of highest quality, and that you will be happy to devise stronger regulations (they get routinely reviewed every three years, and DEP is overdue) and finalize guidance for the program (http://www.rayproffitt.org/pu2001/07122001.htm).  You are going to specifically seek out opinions from conservation and other groups that have been advocating for a strong antidegradation program, seeing as how they are in step with Pennsylvanians’ attitudes on this.  The days when DEP actively sought out the views of the “regulated community” while minimizing the comments from the public in general (it was called the “RBI,” short for “Roll Back Initiative” http://www.rayproffitt.org/pu/pu103098.htm) are gone.  Everyone’s comments will be welcome but you will work with all groups, not just the “regulated community.”  The wishes of Pennsylvanians in general will be kept foremost. 

Given the attitude of Pennsylvanians,  you don’t think weaker legislation needs to be brought up at all, but nonetheless, you would be very surprised to see proposed legislation weakening Pennsylvania’s antidegradation program when a strong program enjoys overwhelming public support.  If passed, you would advise Gov. Rendell to quickly veto any such bill.  If our laws are changed, they should be stronger, not weaker.

 Another area where Pennsylvanians want stronger regulations is that troublesome interface between coal mining and water quality: “Eighty-three percent (83%) of Pennsylvanians support the proposal of ‘putting stricter regulations on coal mines that are located near water sources, such as rivers, lakes and streams.’ Residents in rural areas are the most likely to say they support this proposal with 87%. Thirteen percent oppose this proposal and 4% are unsure on the matter.”

 Certainly Ms. McGinty should tell the Senate that she would be happy to enforce any stronger laws protecting water quality.  But in keeping with her present authority, and “mainstream Pennsylvania opinions,” she should tell the Senate that DEP will finally begin to ensure that coal mining will obey the laws to which they are subject in the same manner as other Pennsylvanians.  Ms McGinty should say that  DEP was happy to see the recent Environmental Hearing Board ruling that says the subsidence effects of longwall mining are regulated under the Clean Streams Law, and that the Subsidence Act explicitly states that it (the Subsidence Act) cannot supersede the Clean Streams Law (http://www.ehb.verilaw.com/corpus/50006972002112.pdf).  DEP, under Secretary Hess, argued for this. 

 Ms. McGinty should go on to say that it is now clear that subsidence can no longer be allowed to “pollute” the “waters of the Commonwealth” by drying them up.  This does not just include the handful of streams that the coal companies reckon will be affected by its large longwall panels (and then dubiously “restored”).  Instead, DEP will begin to demand evidence before mining that all the small streams and springs above the panels will not be dried up by the mining.  After all, those are protected waters, and the rural surface owners (the same ones that support stronger regulations) would be subject to the Clean Streams Law if they wanted to dam them, pump them dry, or otherwise modify them.  It only makes sense that the coal companies, being non-riparian, non-surface owners, are subject to the same Clean Streams Law, in the same manner, that farmers and other landowners are subject. 

 This is a perfect example of how an environmental law, while perhaps limiting the activities of some entities such as coal companies, actually protects the rights of a greater number, the surface owners and all of us that enjoy the benefits of clean unpolluted springs and streams.  But those rights are not protected if the law is not enforced, Ms. McGinty concludes. 

 The Senate might be skeptical, retorting with “Former Secretary Hess stated in April 2002 that DEP will begin ‘treating longwall mining operations like any other activity’ but other than arguing one court case, there has been little evidence to that to date.  What could explain the behavior of DEP, disregarding the law for eight years?  What will your DEP do differently?”  

 Ms. McGinty could state that this may have happened by DEP taking the edict “open for business” too seriously and in a wrong direction.  Industry deserves timely permit review by competent staff, but not short cuts of questionable legality.  To prevent that from occurring again, she announces at least one new measure, placing the responsibility to protect surface waters potentially affected by mining with the Water Management Program in Pittsburgh, ensuring that mining would be treated like “any other activity.”  This will also allow the McMurray District Mining Office to better focus on its mining-specific duties, such as mine safety.   DEP can handle the internal coordination between the two programs and still ensure a timely review.  Perhaps the coal companies will be inconvenienced by having to submit material to two programs, perhaps not.  But in any event, the true “customers” of DEP, the citizens of Pennsylvania and their resources, will be better served.

 The Senate Committee then gives her a standing ovation. 

We will be surprised if the hearing is at all like this, but it would be nice, especially if Pennsylvanians’ attitudes on the environment are a major basis for the questions.  While they are at it, Sen. White and the rest of the Senate might consider whether they themselves are in step with “mainstream Pennsylvania opinions on the environment.”  The hearings may tell us whose opinions are in step and whose are not– and what is the true basis for any opposition to Ms. McGinty. 

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