High ranking Wyoming official blasts drilling as “devastating to the quality of life of residents who live within eye and earshot”

Learning lessons from our neighbors
Yesterday we talked about learning the lessons of history, and drew parallels between the way we dealt with smoking and public health beginning in the 1960s, and what that might teach us about the shale revolution today.

We can learn important lessons from our neighbors too. Areas in eastern Montana, North Dakota and Wyoming have had extensive drilling in their communities, and have lessons learned through hard experience.

So when a high-ranking Wyoming state official describes oil development as “devastating to the quality of life of residents who live within eye and earshot” of oil drilling rigs, we need to sit up and take notice.

Tracy D. Murphy, state epidemiologist and public health sciences section chief for the Wyoming Department of Health, made those comments in a September email to Laramie County Commissioners.

According to the Casper Star-Tribune, “Murphy’s voice is the most prominent in a growing chorus of concern over oil development in the capital region.”

The comments should resonate in Montana too. Energy Corporation of America (ECA) CEO John Mork has announced he plans to “bring a little bit of the Bakken” to the Beartooths, causing a great deal of concern among local land owners. The process has just begun in Carbon and Stillwater Counties.

One of the concerns land owners have about the potential expansion of oil drilling along the Beartooth Front is that it will bring heavy industry into rural areas. This means loud machinery operating 24 hours a day, seven days a week. In a rural community, this can be devastating.

A drilling rig sits ready for production in southern Laramie County. Photo credit: WyomingNews.com

A drilling rig sits ready for production in southern Laramie County. Photo credit: WyomingNews.com

Oil boom in Laramie County
Laramie County has experienced a small boom in oil exploration this year. According to Mark Watson, Supervisor of the Wyoming Oil and Gas Conservation Commission, oil and gas operators are finding new success drilling in the Codell formation. New wells in the Codell are producing about a 1000 barrels a day, a far cry from the Bakken, where new wells can produce 5000 barrels a day, but still notable for Wyoming.

Laramie County produced 300,000 barrels a day in May, roughly ten times the current oil production of Carbon County.

Local geologists have suggested that this might be similar to the kind of production we would see along the Beartooth Front if Energy Corporation of America is successful in realizing John Mork’s vision.

But, according to Murphy, this boom is enough to ruin the quality of life for local citizens.

“Doesn’t the county have zoning ordinances?”
“The noise and activity from oil well drilling rivals, and likely surpasses, any other industrial site in Laramie County. And of course it goes on 24/7,” Murphy wrote to the Laramie County Commissioners. “Doesn’t the county have zoning ordinances that regulate where factories can be located in Laramie County?”

The issue of zoning is an appropriate one to raise.

In Wyoming, counties have very little ability to develop zoning ordinances that regulate oil drilling. According to Laramie County Commissioner Buck Holmes, the Wyoming Oil and Gas Conservation Commission has that responsibility. Watson confirms this. The county can regulate sanitation facilities and the weight of truck traffic, though in the case of the latter, that would be reserved only for emergency situations.

But in Montana land owners have an opportunity to work with their county commissioners to develop zoning ordinances that establish a fair balance between oil drilling and the quality of life of local residents.

Rigs in Laramie County. Photo: Associated Press

Rigs in Laramie County. Photo: Associated Press

The process is called citizen initiated zoning, as set forth in Montana law in MCA 76-2-101. Here’s how it works:

  • Any interested group of citizens in a county can create a zone. It is a democratic process. If 60% of the residents in an area want to create the zone, it can be brought forward to the County Commission.
  • The rules of the zone must be drafted to be consistent with the county growth plan.
  • A zone map must be created to reflect the properties to be included in the zone and define the perimeter of the zone
  • Each landowner who supports the district needs to sign a petition. The signature must match exactly the name on the title of the land.
  • When more than 60% of the landowners in the district have signed the petition, it can be brought to the County Commission.
  • After the County Commission receives the petitions, it holds a public meeting to determine whether the zone is in the “public interest and convenience.” If so, the district is established.
  • If the zone is established it is referred to a county planning and zoning commission. This is a seven member oversight board that reviews the zoning petition and recommends how it should be implemented.
  • After opportunities for public input, the planning and zoning commission puts in place the regulations for the district.
  • The planning and zoning commission is responsible for the ongoing administration of the district.

Plans are currently underway to establish citizen initiated zoning in Carbon County and Stillwater County. There is a great deal of information about it on this blog, which you can find by clicking here.

Thanks to Dennis Hoyem for bringing the Casper Star-Tribune article referenced in this post to my attention.

 

Posted in Community Organization, Politics and History | Tagged , , , | 1 Comment

Oil drilling and smoking: the precautionary priniciple

"Your throat protection against irritation and cough"
“Your throat protection against irritation against cough”

Smoking and public health
For those of you old enough to remember, learning to smoke used to be pretty much like learning to drive. It was just something you did as a teenager and continued for most of your (shortened) life.

Tobacco ads hailed the benefits of smoking: toasted tobacco made the taste great, and if you just reached for a Lucky instead of dessert, you could keep that trim figure. Moms who smoked would be much calmer and better able to care for their babies, who would not be affected by bouncing on Mom’s knee while she puffed away. What was more impressive was that credible people — doctors, scientists, actors, Olympic athletes — were recruited to promote the health benefits of filters or toasted tobaccos to prevent throat irritation and worse.

Cigarettes and cancer? Come on. Just a bunch of alarmist whackos trying to decide what I can do with my own body.

Things changed dramatically in 1964 when the Surgeon General released the Report on Smoking and Health. The report proved a 70 percent increase in mortality for smokers over non-smokers. The scientific community quickly coalesced around the clear negative impact of smoking on health.

We’ve spent the last 50 years digging out from the public health issues created by our free smoking ways.

Oil and gas drilling and public health: same story, 50 years later
Compare that to how we think about oil and gas drilling and the practices of fracking, horizontal drilling and the use of toxic chemicals to extract minerals from the ground. I’ve frequently pointed out how drilling proponents use and misuse this quote by EPA chief Lisa Jackson to justify unregulated drilling.

lisa jackson epa

Here’s how the history of tobacco and public health should instruct us about oil and gas drilling:

Much as we were with tobacco in the 1950s and early 60s, we are now in a period in which there is not yet a scientific consensus about the public health impacts of oil and gas drilling. The shale revolution has created conditions that are quickly and dramatically changing public health. The revolution has brought oil and gas drilling into people’s back yards. According to the Wall Street Journal, more than 15 million people live within a mile of an oil or gas well. Most of this has happened within the last 10 years.

Science is scrambling to catch up. There is a huge push in the academic community to study the health impacts of exposure to the toxins used in the process of oil and gas drilling, and there are now many studies that show an alarming relationship between exposure to chemicals like methane, benzene and toluene and health impacts to pregnant women, newborns, animals and people living near wells.

In the Zotero database you can find 52 peer-reviewed articles on the health impacts of drilling and 66 more on drilling and water contamination.

But there is not yet a clear smoking gun that shows a definitive relationship between drilling and health outcomes that would have the same impact as the Surgeon General’s report on smoking. That will take years.

The precautionary principle
In the meantime environmentalists find themselves in a pitched battle with the economic forces promoting shale drilling. Environmentalists focus on the “precautionary principle.” That is, if an action is suspected of causing harm to the environment or human health, then in the absence of scientific consensus, the burden of proof falls on the individual or organization taking the action.

Like the tobacco industry, the oil and gas industry rejects this analysis. They say that if you can’t prove beyond a shadow of a doubt that an environmental impact is due to drilling, then they’re going to drill baby drill. They fight tooth and nail against any regulation of their industry, and have succeeded in creating significant exemptions in most federal environmental legislation.

Think of the decades it has taken to recover from the tobacco industry’s refusal to slow down, and our public policy makers’ refusal to reign them in. Imagine that same impact from oil and gas drilling.

Click this to read the scientific "evidence" that cigarette filters protect your health.
Click this to read the scientific “evidence” that cigarette filters protect your health.

To refresh your understanding about the impacts of smoking, the public health impacts are a societal issue, not just a personal one. You know about the personal impacts of smoking on human health, so I won’t dwell on those. But smokers also create huge public costs. According to Center for Disease Control:

  • Smoking in the United States costs more than $289 billion a year, including at least $133 billion in direct medical care for adults and more than $156 billion in lost productivity on the job.
  • Secondhand smoke costs us $5.6 billion a year (2006 data) in lost productivity from exposure.

And this is 50 years after the Surgeon General’s report.

Clearly the oil and gas industry is not going to curtail their activities based on the precautionary principle. And despite the contention of companies like Energy Corporation of America that they are “good stewards” of the environment, they are hell bent on getting as much precious oil and gas out of the ground as fast as they can, the environment be damned.

Does oil and gas drilling need to be the new tobacco?
So is that it? Is fracking the new tobacco? Are we doomed to suffer the same health impacts until there is scientific consensus? And once consensus is achieved, will we then have to pay the costs of the delay for decades?

Of course not.

Oil and gas companies may not accept the precautionary principle, but elected leaders and responsible citizens in a community should. We need to protect the health of our communities now and for the future.

Remind you of anything? The oil and gas industry promotes drilling the same way the tobacco industry did. Click to enlarge.
Remind you of anything? The oil and gas industry promotes drilling the same way the tobacco industry did. Click to enlarge.

One way to do that is by placing reasonable restrictions on drilling. There are several components of drilling that need to be regulated to make sure that community health is protected. These include:

  • Water testing: The chemical composition of surface and groundwater needs to be established prior to drilling, and then periodically after that to determine whether contamination has occurred as a result of drilling.
  • Solid waste disposal: Restrictions on solid waste disposal ensure that sediment, production sand, emulsion, sludge, tanks, piping, casing, filters, filter bags, clean out traps, proppant and filter socks are disposed of without polluting soil and water.
  • Liquid waste disposal: Restrictions ensure that produced water from oil wells does not seep into the ground and pollute soil, groundwater and surface waters.
  • Well casings: Well casings are cement layers around a bore hole designed to isolate soil and aquifers from contamination when drilling. Oil companies need to be required to test casings to make sure they are not damaged.
  • Flaring: The practice of flaring involves burning the natural gas that is a product of oil extraction. Flaring produces methane, a prime source of greenhouse gas. It is noisy, smelly and creates light 24 hours a day. The practice is often unnecessary, but oil companies do it because it is financially expedient. Smart communities hold flaring to a minimum.
  • Setback requirements: Setbacks require oil construciton to be placed at distances from homes, wells, streams to protect residents, animals and water from exposure to contaminants.
  • Noise: The heavy industry of drilling produces noise around the clock. Noise needs to be managed to protect community health and quality of life.

In Montana, these kinds of restrictions can be established through a process called citizen initiated zoning, which is a way to restore fairness to communities with shale oil deposits. This is currently being proposed by land owners in Carbon and Stillwater Counties.

History teaches us many lessons. The lesson of tobacco is particularly instructive for oil and gas drilling.

 

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Learning opportunity: Health impacts of fracking

I want to make you aware of what looks like a terrific learning opportunity available on November 4 at Noon Mountain time. Three experts will be describing the state of the science on the health implications of fracking.

The event is offered by the Collaborative on Health and the Environment (CHE), a nonpartisan organization with a mission of strengthening the science dialogue on environmental factors impacting human health.

The title of the event is Fracking’s Wide Health Impact: From the Ozone to Ground Water and All Those Living in Between, a Science Update. Background from the organization:

Research on the health impacts on those living around fracking sites, where shale is hydraulically shattered to extract trapped energy through the administration of a number of known toxicants, only continues to grow more concerning. For example, Utah’s Uintah Basin, home to a combined 11,200 oil- and gas-producing wells, exceeded the level of the EPA’s National Ambient Air Quality Standards for ozone pollutants for 39 days in the winter 2013, placing it above the Los Angeles Basin’s typical summertime levels. Studies have shown that some chemicals used in fracking are carcinogenic and others are associated with respiratory, neurological, and reproductive health problems. Despite these findings, not only in Utah, but in other places in the US and the world, tens of thousands of new wells are being proposed with little or no regulation and oversight from the gas companies nor the government.

Note that you will need to RSVP to be on the call. To RSVP:
click here2

 

 

Featured speakers:

detlev helmigDetlev Helmig, PhD, is a Fellow and Associate Research Professor at Institute of Arctic and Alpine Research (INSTAAR) at the University of Colorado, Boulder. Dr. Helmig, after receiving a Diploma degree in Analytical Chemistry from the Ruhr-University in Bochum, Germany, conducted his PhD research at the Fraunhofer Institute for Environmental Chemistry and Ecotoxicology in Schallenberg, and at the University of Duisburg, studying the causes of forest decline in Germany in the 1980s. After postdoctoral studies at the Statewide Air Pollution Research Center at the University of California, Riverside, he moved to Colorado as a visiting scientist at the National Center for Atmospheric Research (NCAR). With support from an EPA Young Investigator Award, he developed his research program at the University of Colorado. Since 2001 he has been with the Institute of Arctic and Alpine Research (INSTAAR) where he leads the Atmospheric Research Laboratory. His research interests cover surface and biosphere-atmosphere gas exchanges, atmospheric chemistry and transport. Particular current foci include ocean-atmosphere gas fluxes and their controls, trace gas chemistry in snow, volatile organic compound emissions from vegetation, and impacts of oil and gas development on the atmosphere. Dr. Helmig is a steering member of the World Meteorological Organization (WMO) Global Atmospheric Watch (GAW) scientific advisory group for reactive gases, and his laboratory houses the global monitoring program for atmospheric volatile organic compounds (VOC). Besides his atmospheric research Dr. Helmig has developed an interest in sustainable energy and lifestyle. He recently designed and constructed the fully solar-powered home that he and his family reside in within the City of Boulder, Colorado.

michelle bambergerMichelle Bamberger, MS, DVM is a researcher, author and veterinarian in private practice in Ithaca, NY and serves on the advisory board of Physicians, Scientists, and Engineers for Healthy Energy. Dr. Bamberger received her DVM from Cornell University in 1985. Before attending Cornell, she earned her masters degree in pharmacology from Hahnemann University Medical College and then worked in equine research for two years at New Bolton Center, University of Pennsylvania Veterinary School. After graduating from Cornell, Dr. Bamberger studied at Oxford University and practiced small animal and exotic medicine and surgery in both Massachusetts and New York. Before opening Vet Behavior Consults in 2002, Dr. Bamberger returned to Cornell for training in the field of behavior medicine as a Visiting Fellow. She has a special interest in educating the public on veterinary topics and has taught adult education courses and written two books on the topic of first aid. Since 2009, Dr. Bamberger has been investigating the links between human and animal health and unconventional fossil fuel extraction. She is the coauthor of The Real Cost of Fracking: How America’s Shale Gas Boom Is Threatening Our Families, Pets, and Food.

David BrownDavid Brown, ScD, is the Public Health Toxicologist and Director of Public Health Toxicology for Environment and Human Health, Inc. He is the past Chief of Environmental Epidemiology and Occupational Health in Connecticut and was previously Associate Professor of Toxicology at Northeastern College of Pharmacy and Allied Health. He also served as Deputy Director of the Public Health Practice Group of Agency for Toxic Substances and Disease Registry (ATSDR) at the National Centers for Disease Control and Prevention in Atlanta, Georgia. Dr. Brown graduated from Cornell University in Biochemistry, received his MS from the University of California In Environmental Health, and his ScD from Harvard School of Public Health in Toxicology.

Additional resources of interest:
Bamberger, M. and Oswald, R.E. (2012) Impacts of gas drilling on human and animal health. New Solutions, A Journal of Environmental and Occupational Health Policy 22 (1), 51-77, http://baywood.metapress.com/link.asp?id=661442p346j5387t

Bamberger, M. and Oswald, R.E. (2012) Risk and responsibility: Farming, food, and unconventional gas drilling. Independent Science News, http://www.independentsciencenews.org/health/risk-and-responsibility-farming-food-and-unconventional-gas-drilling/

Bamberger, M. and Oswald, R.E. (editors) (2013) Special Issue: Economic, Sociological, and Health Impacts of Shale Gas Extraction. New Solutions, A Journal of Environmental and Occupational Health Policy 23, 1-221, http://baywood.metapress.com/link.asp?id=tn6551r70125

Bamberger, M. and Oswald, R.E. (2014) Unconventional oil and gas extraction and animal health. Environmental Science Processes and Impacts, 16, 1860-1865, http://pubs.rsc.org/en/content/articlelanding/2014/em/c4em00150h#!divAbstract

Bamberger, M. and Oswald, R.E. (2014) The Shale Gas Revolution From a Former Industry Insider. New Solutions, A Journal of Environmental and Occupational Health Policy July 29, 1- 16, DOI: 10.2190/NS.EOV.1, http://baywood.metapress.com/openurl.asp?genre=article&id=doi:10.2190/NS.EOV.1

Bamberger, M. and Oswald, R.E. 2014. The Real Cost of Fracking: How America’s Shale Gas Boom is Threatening our Families, Pets, and Food. Beacon Press, Boston., https://www.kirkusreviews.com/book-reviews/michelle-bamberger/the-real-cost-of-fracking/

Bamberger, M. and Oswald, R.E. (2014) Long-term impacts of unconventional drilling operations on human and animal health. Journal of Environmental Science and Health Part A, in press.

Bamberger, M. and Oswald, R.E. (2014) Impacts of shale gas extraction on animal health and implications for food safety. Madelon Finkel (editor) The rush to drill: The human and environmental costs of shale gas extraction. Praeger Press, in press.

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New study sheds light on “unknown unknowns” in Uintah Basin, Utah

One of the most-read posts on the blog is the disturbing story of the town of Vernal and the Uintah Basin in eastern Utah, where decades of oil and gas exploration have led to terrifying public health problems, and the prospects for the future are bleak.

One of the key points of that post, and others, is that there are many “unknown unknowns” — things we just don’t know yet about how oil and gas drilling affect the health of newborns, of residents over time, and of domestic and wild animals in the area.

Today we have some new knowledge about the Uintah Basin that begins to answer some of the questions about why these health impacts are taking place. The information comes from a study led by the Cooperative Institute for Research in Environmental Sciences (CIRES) that pinpoints the sources of airborne pollutants. CIRES is a joint institute of the University of Colorado Boulder and the National Oceanic and Atmospheric Administration. The study appears in the journal Atmospheric Chemistry and Physics.

Lead author Carsten Warneke, an atmospheric chemist with CIRES at the University of Colorado Boulder, explained the value of this information.

“Before you can stop a leak, you have to know where it is. This study tells us where the largest emissions are coming from, and that, in turn, helps industry identify what they can do to reduce emissions as cheaply and effectively as possible.”

Oil and gas production fields produce volatile organic compounds (VOCs) such as methane, toluene and benzene. Methane is a greenhouse gas that is a primary cause of global warming, toluene can harm the liver and kidneys, and benzene is a carcinogen. Oil and gas produce VOCs, and air pollution produced in oil and gas fields can damage the lungs.

The study shows that in the Uintah Basin, equipment located on well pads—such as condensate tanks, dehydrators, and pumps—are key sources of pollutants. It also found that well operations frequently emit high levels of benzene and toluene, and that emissions vary by production method.

Key findings

  1. On well pads, some equipment leaks more VOCs than others. The main emitters include separators, dehydrators, and oil and natural gas liquid (condensate) tanks. Separators divide natural gas into its liquid and gas fractions, and dehydrators remove water from natural gas.

    Photo credit: CIRES

    Photo credit: CIRES

  2. Different production techniques result in different emissions. For example, dehydrating gas on-site (at the well pad) leads to higher emissions of VOCs than dehydration carried out off-site at a centralized facility.
  3. The scientists found high ambient levels of benzene and toluene (another air toxic) at specific sites in the basin, with measurements reaching up to 1,000 parts per billion (1 part per million) by volume. “In urban areas, values are closer to 0.1 to 0.2 parts per billion by volume,” Warneke said. One such site was a recently re-fractured well with a flow-back pond. Evaporation ponds were also a large source of VOCs.

    Photo credit: CIRES

    Photo credit: CIRES

  4. In Rangely, Colorado, where the team also took measurements, they found fewer emissions, probably because of two key factors: Rangely’s gas field is drier than Uintah Basin’s, and most wells have electric power. Both factors lessen the need for production equipment, such as dehydrators and storage tanks. “Less equipment means fewer opportunities for leaks

    Photo credit: CIRES

    Photo credit: CIRE

What it means for us
This study shows how we are slowly beginning to learn what we don’t know about the long-term impacts of oil and gas drilling on our communities. The data shows that certain types of equipment, certain climates, and certain production techniques reduce emission levels. As we learn we have an opportunity to develop best practices that will minimize the adverse impacts of drilling.

However, this learning process will likely take decades. In the meantime more communities will suffer the devastating results seen in Vernal, Utah.

What we need to do now is demand protection  by requiring the highest and best management practices in oil and gas drilling. If we don’t, the unknown unknowns will come back to hurt us now and in years to come.

This is a key reason behind our push for citizen initiated zoning. If you have the opportunity to sign up, be sure to do it. As citizens and land owners we must establish critical protections now.

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Billings Gazette Guest Opinion: Dennis Hoyem

This guest opinion appeared in the October 21, 2014 edition of the Billings Gazette:

Guest opinion: Surface owners, know your oil and gas mineral rights

If you own only surface rights and a company intends to drill a well on your land, you’ll do well to get the time of day from them. I say this as an anti-clock watcher (I’m sorry, I’m late.). Mineral rights take precedence over surface rights in Montana, and many other states — thanks to boards of oil and gas and heavily lobbied legislatures who haven’t always thought things through.

In a surface ownership-only scenario, you would obviously not be entitled to any “signing bonus” or royalties. Further, you would likely be undercompensated for surface disturbance. Worse, you would have little or no control over where the disturbance of your surface occurred; in Montana there are no required setbacks from water wells, streams, or even your home.

Picture a case where you do own the majority of oil and gas rights, and several others own much smaller individual percentages of that same mineral estate. One owning the smallest interest could give permission for total oil-gas extraction — even if everyone else were opposed to it! Uncle Pete may then no longer be everyone’s favorite uncle. Hide the musket.

Apparently, unanimity is required here to say “no,” but not to say “yes.” Would the company fairly compensate the naysayers? It’s kind of like Pete alone owned all the oil and gas. Life isn’t always fair is it?

So, it’s very important for you and me to pre-determine who all owns the minerals under our land. We can then begin conversations which may avoid family members falling out with each other. And we can make easier, quicker, and more-informed decisions when the oil company comes.

Local title companies are often very busy doing what they do best and are not interested in adding mineral/mining right searches to their job description. So, what are other options?

Although I don’t personally know any yet (the courthouse might), there are those who will provide such research service at a cost of, say, $500 per day.

Fortunately, for private and state minerals, the Montana Department of Natural Resources can help you, and your local Bureau of Land Management office can help you with federal mineral ownership.

Finally, you and I can do the research ourselves in our county’s courthouse. Most clerk and recorder offices have computers available for such use. A learning curve is unavoidable. Given that and competition for use of such computers with others researching — not just mineral rights, but many other things — don’t dally.

Dennis Hoyem of Nye spent 36 years in public service with the U.S. Coast Guard, Stillwater County Commission and federal Bureau of Land Management in Miles City where he was a surface protection specialist for oil and gas exploration and development.

Find out more
You can read more about this topic on this blog by clicking here and here.

Dennis Hoyem and his wife Cathy were interviewed for our Preserve the Beartooth Front video. Here’s that video. If you receive this via email, click on the title of the post to see the videos.

and here are outtakes from Dennis and Cathy’s interview:

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Outside corporate interests are trying to shift the balance of the Montana Supreme Court. What it means for oil drilling along the Beartooth Front.

A political action committee funded by corporate interests from outside Montana is trying to shift the balance of the Montana Supreme Court. The goal is to drive an agenda that endangers the property rights of local citizens, and their ability to control oil and gas drilling in their towns and counties.

This blog focuses on issues related to oil and gas drilling along the Beartooth Front. I try to stay out of election campaigns because I believe that the issues that readers of the blog care about — developing policies to make sure that drilling happens on terms acceptable to local citizens — appeal to voters of all parties across the political spectrum.

That said, there is a new development in a statewide nonpartisan Supreme Court race that could directly affect the future of oil exploration in the state, and it’s something that should outrage anyone who believes that Montanans, not multi-national corporations, should control Montana’s future.

The Montana Supreme Court. Mike Wheat is on the right.

Montana’s Supreme Court justices. Mike Wheat is on the right. Click to enlarge.

The election pits incumbent Justice Mike Wheat against Montana newcomer and former State Solicitor General Lawrence VanDyke.

The disturbing development is that a political action committee from Washington, DC is using corporate money raised outside Montana to turn this into a campaign designed to drive a clear partisan agenda.

Mike Wheat. Click to enlarge.

Mike Wheat. Click to enlarge.

Wheat vs. VanDyke
In a traditional nonpartisan judicial race, it is hard to imagine Mike Wheat being defeated. He is a nonpartisan judge with an impeccable record. He served with distinction as a Marine in Vietnam, earning a Purple Heart. He graduated from Montana State University in 1975 before graduating from the University of Montana Law School in 1978. He has practiced law for over 30 years in the state, three of those as a criminal prosecutor in Butte-Silver Bow. He was appointed to the Supreme Court by Governor Schweitzer nearly five years ago, and was  elected in 2010. His opinions do not follow party lines, and he has taken a measured view in supporting the environment laws set out in Montana’s statutes and Constitution.

Lawrence VanDyke. Photo Credit: Larry Mayer, Billings Gazette. Click to enlarge.

Lawrence VanDyke. Photo Credit: Larry Mayer, Billings Gazette. Click to enlarge.

VanDyke has a very different profile. He graduated from Harvard Law School in 2005, and has practiced law in Montana for less than two years. He has no experience as a prosecutor. He has no judicial experience, and no known courtroom experience. His career in Washington, DC and Texas has involved representing multi-national corporations.

VanDyke’s public remarks reveal a clearly partisan agenda. According to the web site Right Wing Watch, “in public statements, VanDyke has indicated that he would have sided with the U.S. Supreme Court on Citizens United, defending the decision in a debate last month. And although his race is officially nonpartisan, VanDyke has made it very clear which side of the aisle he falls on, accusing his opponent of judging ‘like a liberal Democrat’ and being ‘results-oriented’ in his rulings — a loaded accusation favored by conservative activists.”

In a recent interview with the Great Falls Tribune, VanDyke was asked about independent spending in Court races. He “argued there is a benefit to dark money spending in judicial elections.”

You can learn a great deal about a candidate from the people who know him personally. In an email forwarded to me, a Montanan who worked with Mr. Van Dyke in the Attorney General’s office has this to say about his personal experience with the candidate:

Montana’s Supreme Court elections have been non-partisan for nearly 80 years, and for good reason.   A Montana Supreme Court justice has a very important job, and candidates should be judged on their own qualifications, not by whether they are Democrats or Republicans.  VanDyke, however,  insists on turning the Supreme Court election into a partisan race, as demonstrated by his campaign website. You can hear VanDyke’s partisan attacking approach at a candidate forum held in Missoula last month.

VanDyke came back to Montana from Texas in order to work for Attorney General Tim Fox in early 2013.  Few people in Montana know much about VanDyke.  He resigned from his position in the Attorney General’s office in January 2014, and has not worked there for months (even though his website still characterizes Attorney General Tim Fox as his “boss”).   I worked with VanDyke for over a year, and had the opportunity to see him in action.  He has little experience with the Montana legal system, and showed little interest developing a working knowledge of how to practice in our courts.  It is my opinion that VanDyke lacks the maturity and work ethic we should expect of someone aspiring to be a Supreme Court justice.

In a recent Great Falls Tribune article, the Director for the Center for Law, Philosophy, and Human Values at the University of Chicago Law School, Brian Leiter, recalled his experiences with Mr. VanDyke several years ago on the issue of a book review written by VanDyke about “intelligent design.” Professor Leiter believes Mr. VanDyke’s writing on the topic was “intellectually dishonest” and notes:  “Are his religious commitments so strong that it’s going to lead him to ignore the law when they conflict? In that book review, he ignored the science, he ignored the philosophy and he ignored the logic. That would be bad news if he does the same thing as a judge.”

I believe everyone should be free to practice their chosen religion and I admire persons of faith.  Judges, however, should only be concerned with the law.  Based upon my recent experiences with VanDyke, I share Professor Leiter’s concerns — especially with respect to Montana’s election laws.  For example, based upon freedom of religion under the First Amendment, VanDyke has told me he does not believe Montana should be able to regulate speech by religious organizations in our elections.   It would not be difficult for “dark money” interests to use religious organizations as a front to avoid regulation or disclosure.  I am concerned that VanDyke will not cast aside his personal beliefs on these sorts of issues if elected to the bench….

My conversations with VanDyke lead me to believe that he does not support many (if any) of our important election laws, including  Montana’s attempts to require disclosure of those behind “dark money” and their activities in Montana elections.

What this has to do with oil drilling along the Beartooth Front
If you’ve been following this blog, you know that Energy Corporation of America and its attorney Mike Dockery have begun to challenge the fundamental right of citizens to legally protect their property through the process of citizen initiated zoning.

Click to view full letter

Click to view full letter

In a letter written to the Carbon County Commissioners, Dockery has claimed, among other things, that mineral rights owners are proper petitioners for a citizen initiated zone, that citizens have no right to supercede the authority of the Montana Board of Oil and Gas Conservation, and that a zone is an “unlawful taking” of mineral rights. You can read the full letter by clicking on the photo at the right.

It is possible that these issues will wind up in court, and it is entirely possible that they will wind up in front of the Montana Supreme Court. If Lawrence VanDyke is elected next month in a hyper-partisan race funded by, among others, oil and gas interests, it is highly possible that the deciding vote in that case will be cast by a justice who has been bought and paid for by the oil and gas industry.

Click to enlarge

Click to enlarge

A recent mailer sent out by his supporters shows a picture of an oil well pumping unit, a pipeline and VanDyke with the title “As Supreme Court Justice, Lawrence VanDyke will protect Montana jobs from environmental extremists.” I think this means you and just about anyone who wants to place reasonable restrictions on extraction.

This is what happens when you inject partisanship into historically nonpartisan races. “It’s just a clear indication, I think, of the downside of Citizens United,” said Justice Wheat. “The judiciary is typically separated from the political process because they may have to make decisions that are unpopular. Focusing on state Supreme Court races in a partisan way is a dangerous road to go down.”

Click to enlarge

Click to enlarge

VanDyke’s pro-business, anti-environmental partisan views are on display on his campaign website, and in the corporate-funded attack piece at right. He says he favors efforts to “produce and preserve” natural resources, which he contrasts with Wheat’s dissent in the 2012 case Montana Wildlife Federation vs Montana Board of Oil and Gas Conservation et al, (see p. 37) in which Wheat sided with preservationists in a dispute over drilling gas wells. Last month VanDyke spoke at a “Coal Appreciation Day” sponsored by a coal industry group.

Corporate money from out of state
The money is coming from a little-known group called the Republican State Leadership Committee (RSLC). Formed in 2002, it is the only national organization that focuses on electing Republican majorities to state legislatures and other statewide offices. It has been active in forty-six states and has spent tens of millions of dollars. Based in Alexandria, Virginia, the committee targets legislative chambers — from Maine to Wisconsin — where there is a chance for control to change hands.

According to The Progressive,

The committee’s main tactic was to barrage the public airwaves with negative ads, much of it done at the tail end of the campaign season. GOP stalwarts such as Karl Rove and Ed Gillespie aggressively executed the battle plans through their consulting firms.

“We’ve had hard-fought campaigns before, but we’ve never seen out-of-state money drop a negativity bomb in so many races,” says Ann Luther, who sits on the board of Maine Citizens for Clean Elections. “It was shocking.”

In 2014, the RSLC has branched out into judicial elections, with plans to spend $5 million on judicial races, including $200,000 to defeat a single local judge in Missouri, and at least $110,000 in media in the Wheat-VanDyke race.

Where the donations come from
The RSLC is funded by money from national corporations that, for the most part, have no direct interest in Montana. What the organization is funding is a partisan agenda on many levels across the country.

The largest donors:
Reynolds American, Inc, the parent company of RJ Reynolds Tobacco:   $1, 114, 647
Blue Cross/Blue Shield:                                                                                            958,513
US Chamber of Commerce                                                                                       615,995
US Chamber of Commerce and related entities:                                                  496,245

Oil and gas related donors:
Koch Industries:                                                                                                        460,530
Devon Energy (corporate headquarters in Oklahoma):                                      400,000
America’s Natural Gas Alliance:                                                                              380,030
Exxon Mobil:                                                                                                              325,000

Why Montana?
It’s clear why the RSLC has targeted Montana. The Montana Supreme Court has special significance. The Court resisted the 2010 Citizens United ruling, which makes the RSLC’s financial involvement in the race possible.

In December 2011, the Montana Supreme Court, in Western Tradition Partnership, Inc. v. Attorney General of Montana, upheld the Corrupt Practices Act, passed by the voters of the state, that limited corporate contributions only in elections on initiative ballot measures. Examining the history of corporate interference in Montana government that led to the Corrupt Practices Act, the majority decided that the state still had a compelling reason to maintain the restrictions. It ruled that these restrictions on speech were narrowly tailored and withstood strict scrutiny and thus did not contradict Citizens United v. Federal Election Commission.

In 2012 the US Supreme Court rejected the Montana Supreme Court argument.

The Montana Court could soon be ruling on other issues that are part of the RSLC agenda, such as abortion rights.

What the money will buy
I spoke to a media buyer who handled a Montana statewide campaign in the primary. She told me that the campaign spent $205,000 over five weeks on television ads, half as much as what the out-of-staters are likely to be spending. Based on her experience, she estimated that the anti-Wheat campaign would buy time in five markets that cover most of the state: Missoula, Billings, Butte-Bozeman, Great Falls and Helena.

At the rate charged to PACs, they would be able to purchase enough television time to reach 90% of television viewers an average of 15 times each between now and the election.

According to her, this is a “very strong” buy in terms of its statewide impact.

Based on all the money the RLSC is spending, you’ve probably already seen the ad.

Here is the counter attack ad in support of Wheat that you probably haven’t seen.

Where the race stands
Given the current state of the race, the RSLC money could be enough to tilt the seat from Wheat to Van Dyke.

According to a Montana State University Billings poll published last Friday, Wheat leads 25% – 13%, but 60% of voters remain undecided. That leaves Wheat vulnerable to a late surge of negative ads funded by outside interests.

What you can do about it
The only way to combat money is with money. If you believe in maintaining a state judiciary that is independent of corporate money from outside Montana, you can send a contribution to Mike Wheat on his website. Or, you can visit Montanans for Liberty and Justice.

There’s a lot at stake here. Don’t pass on this one.

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Billings Gazette Letter to the Editor: Deborah Griffin

The following letter to the editor appeared in the Billings Gazette on Monday, October 19, 2014:

Who watches the Board of Oil and Gas?

Montana is a state of proud tradition. Simple, but important truths. Leave the gate the way you found it. Whiskey is for drinking, water is for fighting. Take care of your own. So when it comes to understanding why we relinquish so much authority to the Board of Oil and Gas I am a bit confused.

Currently they have no stated plan to regulate hydraulic fracking, no requirements for closed-loop systems to deal with disposal of wastewater and chemicals and the mission is primarily to protect the oil and gas industry. There are only seven inspectors for the entire state. I continue to be surprised at how many folks think “Montana is not going to let our state be damaged like North Dakota” without knowing how lax the Board of Oil and Gas is on development.

One does not need to be against development to want good rules about the use of our land and our resources. Why don’t simple truths apply here? We need to close the gate, fight for our water and take care of our own.

Deborah Griffin
Nye

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Screening of the film “Split Estate” at Cafe Regis in Red Lodge, Thursday, October 16

The 2010 Emmy Award-winning film Split Estate will be screened at the Cafe Regis in Red Lodge this Thursday, October 16, at 6pm.

split_estate_poster

The film tells the story of oil and gas drilling in Colorado and the San Juan Basin in the four corners area. The story is told through the eyes of Laura Amos of Encana, Colorado (who was the subject of a personal story on this blog); Gilbert Armenta, a fifth generation Hispanic and Native American (Cochiti) rancher living with the industry in his backyard for more than half a century in Bloomfield, New Mexico; and Chris and Steve Mobaldi, who settled in Rifle, Colorado, only to experience the drilling of 20 wells within a mile of their home, as well as an unlined disposal pit that burns and flares a few hundred feet from their front door.

Elected officials, policy makers, attorneys and other advocates are also interviewed for the film.

As one reviewer commented,

I live in one of the areas depicted in the film, and I have a professional job, highly dependent on the oil and gas industry….

I saw the television premier of Split Estate a few days ago. Being an industry insider, I had heard a lot of anticipation buzzing around the field about the movie, most of it negative. I wanted to see it for myself and formulate my own opinions before hearing about it from others. Let me just say I was impressed.

The filmmakers did an incredible job of visually portraying the size and scope of oil and gas production in the western US. The dramatic aerial shots showed the enormity of the operations in progress that someone on the ground cannot see.

I felt the film was quite balanced considering the press that it’s been given. I thought the scientist’s were believable and not agenda driven. The Conoco/Phillips representative was and especially good speaker both defending the industry and acknowledging that there were still issues to be solved. This movie is in stark contrast to the horribly one sided, factually incorrect and finger pointing Gas Land.

Whether you’re just beginning to get informed about this issue or you’ve been working on it for a long time, drop in Thursday night. The event is sponsored by the Carbon County Resource Council. Martha will be serving snacks and beverages. There is no admission, but a donation is requested.

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Billings Gazette Letter to the Editor: Jane Moses

The following Letter to the editor appeared in the October 12, 2014 edition of the Billings Gazette:

Although oil and gas companies would have you believe otherwise, the regulations they must follow while drilling do not protect landowners and their water supplies from contamination. They don’t even come close. The Energy Corporation of America has plans to “bring something like the Bakken” to the Beartooths. They’ve already begun the drilling process, and wells on private property are not being protected.

Right now, the best option for protecting private water supplies is for each landowner to pay hundreds of dollars for baseline testing of wells to show what chemicals are present in the water before drilling begins. Landowners must then pay to have wells retested on a regular basis (possibly for years) to learn if water has been contaminated.

And that is not enough. Oil companies don’t have to disclose what chemicals they use in fracking because the law protects that information as “trade secrets.” So even if testing shows contamination by a certain chemical, there is no way to prove the oil company used that particular chemical in the drilling process.

There’s something wrong with the law in Montana when landowners have to pay to protect themselves from damage done by oil and gas development, which produces millions of dollars for the oil and gas companies. County commissioners should require every oil and gas operator to pay for regular testing and monitoring of all wells near a drilling site to prove they are not contaminated. This testing should be done by independent companies, not companies chosen by the oil and gas developers. It is a cost of doing business here in Montana, and it is necessary to protect our property rights.

Jane Moses
Billings

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$1 million award to North Dakota ranch could influence future judgments against oil companies

A Bismarck jury awarded a western North Dakota hunting ranch a $1 million judgment based on a claim that oil drilling turned their pristine landscape into “an industrial zone”. The claim by Deadwood Canyon Ranch was graphic, but familiar to readers of this blog:

“The well pumps operate continuously and emit a loud groaning noise; the oil wells flare and smell of excess gas; and the well sites are serviced by a fleet of 14-wheel tanker trucks that barrel down the newly constructed access roads, sometimes kicking up a dust storm as they pass.”

The judgment is based on a 1979 North Dakota law known as the Oil and Gas Production Damage Compensation Act.

The law provides that a mineral developer “shall pay the surface owner a sum of money equal to the amount of damages sustained by the surface owner and the surface owner’s tenant, if any, for lost land value, lost use of and access to the surface owner’s land, and lost value of improvements caused by drilling operations.”

Deadwood Canyon Ranch. Photo Credit: Kathleen J Bryant/Forum News Service
Deadwood Canyon Ranch oil well. Photo Credit: Kathleen J Bryant/Forum News Service

“Kind of like the tobacco industry
James Grijalva, a University of North Dakota law professor whose areas of expertise include property law, said a jury verdict doesn’t set a precedent from a legal standpoint, but it could be an example for other juries to follow in thinking that a particular kind of damage is compensable.

“It’s kind of like the tobacco industry. They fought really hard never to lose a case, because once there’s a hole in the dam, the dike is breached,” he said.

This could happen in Montana too
This judgment is of particular interest to Montanans because Montana has a similar law on the books, Mont. Code Ann. § 82-10-504, “surface damage and disruption payments — dispute resolution.”

According to the Wyoming Law Review (p. 421),

Montana’s Surface Damage Act is quite similar. Written notification is again required of the producer to the surface owner not more than ninety days or less than tendays prior to entry and must relate the proposed operations.

Montana does not require a surface bond and mirrors North Dakota in requiring damages for loss of value to surface improvements, loss of land value, and loss of production and income from agriculture.

After entry, the surface owner has two years to notify the mineral developer of damages. Upon such notification, the developer has sixty days to make an offer of restitution. The surface owner can accept or file suit inthe appropriate state district court.

Whatever the route to calculating damages, payment must be made within sixty days of the agreement or award, or the surface owner is entitled to twice the amount of the owed damages.

The major difference between the North Dakota and Montana is timing of payment of surface damages. North Dakota requires the parties to speculate on the damages and agree—or seek a judicial determination if no agreement is reached—on a settlement beforehand. Montana’s statute considers damages in retrospect, with the surface owner essentially keeping tabs and presenting a bill after the alleged damage is done.

The judicial landscape may be changing
We seem to be seeing a change in the judicial landscape. Juries are increasingly willing to grant damages to plaintiffs for a variety of problems caused by oil and gas drilling. We’ve reported on some here:

We’ve established that the law is tilted far in favor of the oil and gas industry. It’s a positive step that courts are willing to protect land owners in ways that our federal and state legislatures have not.

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