Abusing the Process for Politics

At the end of June, the Pennsylvania Attorney General announced with great fanfare the result of a statewide grand jury report on the oil and gas industry in the state.  Attorney General Josh Shapiro presented the report as some sort of courageous truth-seeking endeavor.  But in reality, the report is the culmination of a two-year, taxpayer-funded fishing expedition designed to libel the Pennsylvania oil and gas industry, an abuse of the state grand jury process for the transparent purpose of boosting the Attorney General’s green political credentials.  Rather than praised, Shapiro should be condemned.  His abuse of process clearly highlights the way that unscrupulous or self-interested officials can hijack the Pennsylvania statewide grand jury system.  

The statewide grand jury process in Pennsylvania has long been criticized for its serious due process failures.  In most states, grand juries simply have the power to investigate criminal allegations.  In Pennsylvania, however, grand juries have the additional ability to pursue a wide-ranging investigation into any issue deemed vaguely in the public interest.  In such a case the grand jury issues a report that summarizes the findings and recommendations of the grand jury.  Such a report is compiled in secret, directed by prosecutors on their own recognizance, and the report is made public as if it is an official government document, even if the claims contained within it are distorted or completely unfounded.  The targets of such an investigation have no opportunity to respond, as they would in court. The potential for abuse here should be obvious.  Indeed just last year a task force convened by the Pennsylvania Supreme Court recommended ended the practice of grand jury reports.

Even beyond the well-known due process concerns, this report on the state oil and gas industry exposes further deficiencies in the statewide grand jury process.  A grand jury is simply a collection of random individuals.  They are not issue-area experts, not scientists or specialists with the knowledge that helps them understand the issues they are investigating.  The grand jury only knows what the prosecutor chooses to tell them and only hears testimony from those the prosecutor chooses to call.  In the hands of a biased prosecutor, this limitation is easily exploited, as it was in the case of this report.  The grand jurors heard from a parade of individuals claiming various illnesses or land contamination from oil and gas operations, but all purely anecdotal and often unsubstantiated.  A panel with oil and gas expertise would have been aware that claims of health and water issues from hydraulic fracturing have been made for decades and no investigation has substantiated a systematic connection.  For example, even the Obama administration EPA, no friend to the oil and gas industry, found no widespread adverse water impacts from fracturing.  The report is filled with many such factual errors or omissions.

The further deficiency of the grand jury report process is clear from the preposterous nature of the report’s eight recommendations, which again highlight how a group of random citizens are entirely unprepared to conduct specialized investigations.  The first recommendation is requiring drilling setbacks of 2,500 feet or more from occupied buildings.  But an even slightly informed grand jury would know that this “recommendation” is effectively a ban on drilling in the state of Pennsylvania, given that the vast majority of this fairly densely populated state would become off-limits.  Another recommendation calls for the reporting of chemicals used in hydraulic fracturing, but an informed grand jury would have known that this is already required.  The report is so transparently biased that even the state Department of Environmental Protection was moved to draft an extensive criticism of the report’s errors of fact and law.  And this is a DEP that is run by the state’s Democratic governor.

While the random citizens of the grand jury can be excused for their lack of knowledge of law and fact, the Attorney General should not be.  It is clear from the report that AG Shapiro convened this grand jury specifically for the purposes of libeling the oil and gas industry.  The information presented to the grand jurors was one-sided and full of questionable allegations designed to paint the oil and gas industry as evil.  The recommendations included in the grand jury report also just happen to match many of the demands that extreme environmentalist groups promote across the country (for example the setback recommendation mirrored a ballot proposal defeated in Colorado in 2018).  What a coincidence that this “impartial” grand jury reached exactly the conclusions that extreme left-wing activists share.

But of course, it is not a coincidence.  This was a political exercise.  AG Shapiro seeks to use this grand jury report to burnish his green credentials to curry favor with powerful environmentalist groups and billionaires in the hopes of getting their money and support in his pursuit of the governor’s mansion.  Shapiro hijacked this grand jury to boost his career and help with political fundraising.  The state meanwhile is left footing the bill for this fishing expedition and the oil and gas industry has to try to defend itself from the report’s baseless claims in the court of public opinion.

Whatever the theoretical value of a statewide grand jury investigation, this sordid incident exposes the danger of the process in unscrupulous hands.  That the process can so easily be manipulated and used to attack political enemies of the Attorney General should be a blaring alarm demanding reform or outright abolition of this sort of non-criminal report.  In the meantime, this “report” should be seen for what it really is: Attorney General Shapiro’s campaign platform for the governor’s race, and its veracity and factual value discounted accordingly.

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