Planning Board meeting tonight canceled

NOTE: The Carbon County Planning Board meeting scheduled for tonight has been postponed due to weather and lack of a quorum. It has been rescheduled for December 16.

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Canceled: Carbon County Growth Policy meeting Tuesday, November 25 in Red Lodge

NOTE: The meeting tonight has been postponed due to weather and lack of a quorum. It has been rescheduled for December 16.

Here’s something concrete and specific you can do to protect your community from unregulated oil and gas development: attend the regular meeting of the Carbon County Planning Board tonight (Tuesday, November 25) at 7pm at the Carbon County Courthouse, 102 North Broadway in Red Lodge.

This meeting is important because Carbon County is in the final phase of updating its growth policy for the first time since 2009. This meeting represents a last opportunity for public input into the plan, which will affect County policy for the next five years, and will directly impact the central issues addressed on this web site: oil and gas exploration; the protection of water, air and soil; the protection of private property rights; and the long-term economic viability of the County.

The final draft is expected to be approved by the County Commissioners in January.

Carbon County Growth PlanYou can download the current draft of the 2014 Growth Policy by clicking on the graphic at right. The document is great reading — well crafted and full of information about the history, land, economy and people of Carbon County. If you like charts, graphs and maps, you’ll find them here.

I recommend you read through it before the meeting and consider giving your input on areas that you think are important.

After reading through the document, here are some areas I think you may want to consider and give voice to at the meeting:

  • One of the five key goals in the growth plan is to “develop the county’s natural resources balancing economic development with environmental responsibility (p. 52).” One of the key objectives for achieving this goal is to “promote policies and strategies to mitigate potential impacts without deterring natural resource development.” Ways to do this include:
    • Coordinate with landowners to enable citizen-initiated zoning districts (enabled through MCA 76-2-101) to mitigate potential impacts of natural resource development.
    • Consider possible impact mitigation policies in the development regulations.
    • Coordinate with industry, landowners and local leaders to promote “good neighbor” strategies.
  • Objectives could also be added to strengthen this section. Examples might include:
    • Acquisition of baseline data on air, water and soil quality in areas that are to be developed, and development of programs to mitigate any contamination or erosion of quality
    • The inclusion of the right specifically stated in the Montana Constitution to a clean and healthful environment in Carbon County.
Growth plan, public_private
From the Growth Plan: Public and private land in Carbon County. Click to enlarge
  • If you read pp. 57-60 of the plan, a process for review is explained for any change of use in land — from  agricultural, residential, or recreational to commercial or industrial. The review must cover agriculture, water use facilities, local services, natural environment, wildlife habitat, and public health and safety. Every time a landowner wants to subdivide in a way that means a change of use, these criteria must be considered. However, if the change is to natural resources development, all regulation moves to the state level, with no County requirement for involvement. As we have often explained, the State does not concern itself with these areas of review. The County should apply these same standards of review for land converted to oil and gas development in the growth plan.
  • The importance of maintaining tourism in the County, and making sure that any oil and gas development is done within the context of not allowing a conflict that would lead to an environment inhospitable to tourism. While tourism is mentioned in the growth plan, its essential importance to the County is underplayed, and the potential for conflict between tourism and the heavy industry of oil and gas development is not emphasized.

I encourage you to read the draft, attend the meeting, and give voice to concerns that are important to the long-term future of Carbon County. This is a way you can have a concrete impact on the future of oil and gas drilling.

If you can’t attend, send comments to brentm@ctagroup.com.

Related:
Current (2009) Carbon County Growth Policy
Carbon County Growth Policy Web Site
The Economy of Carbon County, 2012

CTA Architects Engineers has been hired by Carbon County to manage the process of putting together the growth plan. The company compiled this video of citizen input:

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Good news from Carbon County. Silvertip landowners resubmit citizen initiated zoning petition to County Commissioners, plus Belfry well timeline

Exciting news today from Carbon County.

The landowners in the Silvertip Zone resubmitted their petition to the County Commissioners to establish a citizen initiated zone in Belfry yesterday. Landowners had originally submitted a petition to the Commissioners on August 18, but the Commissioners took no action based on advice from Carbon County Attorney Alex Nixon that the boundaries of the original zone were not contiguous, as required by Montana law. Nixon alos suggested the language in the petition did not provide enough specificity about the intent of the zoning.

The new petition addresses concerns raised by County Attorney Alex Nixon. Click to read the petition.

The new petition addresses concerns raised by County Attorney Alex Nixon. Click to read the petition.

According to Silvertip landowners Bonnie Martinell and Carol Nash, who presented the petition to the Commissioners, the new document addresses both concerns.

Martinell said she was particularly gratified at the eagerness of her neighbors to continue with the process. All but one of the original signatories in the redefined zone signed the new petition. “They believe this is necessary, and they are committed to seeing this through,” she said.

The petition was signed by 68% of the landowners in the zone. A minimum of 60% is required by Montana state law.

The Commissioners promised to respond soon. We’ll keep you updated.

A timeline of events regarding the Silvertip Zone:
October, 2013: John Mork, the CEO of Energy Corporation of America, announced the opening of an office in Billings and plans to hydraulically fracture 50 wells along the Beartooth Front in a move that would bring “a little bit of the Bakken” to the Beartooths. At about this time, ECA approaches a local landowner and offers a one-time payment of $4,500 for access to three acres of land to drill the well. The landowner was told they had no choice but to sign.

Protest in front of the Montana Board of Oil and Gas Conservation.

Protest in front of the Montana Board of Oil and Gas Conservation.

December: The Montana Board of Oil and Gas Conservation (BOGC) refuses to hear the arguments of concerned citizens and grants ECA a permit for the Belfry well.

January 8, 2014: Northern Plains Resource Council and its affiliate Carbon County Resource Council file suit against the BOGC, demanding a hearing on the well permit and reforms in the process by which the BOGC permits wells.

February 7: Analysis reveals that ECA has an abysmal safety record in Pennsylvania and West Virginia, with 66 inspections with violations, 90 separate violations, 55 enforcement actions, and fines totaling over $80,000 in Pennsylvania alone. You can download a copy of the actual report here.

February: BOGC accepts the demand in the lawsuit and grants a hearing on the well.

Well structure. Click to enlarge

Well structure. Click to enlarge

February 27: BOGC ignores public input and expert testimony, granting the permit as requested by a 6-1 vote. The location of the well is the Silvertip area in Belfry, detailed here.

March: Neighbors begin to discuss options to protect their land, water and way of life. Given the lack of protect from the BOGC and other state entities, they look specifically at options for local action.

May 14: ECA begins work on the well. Residents immediately become concerned that the company’s contractors are illegally drawing water out of a gravel pit near the site. A water right is required, and none exists.

Tanker truck illegally removing water from well. Click to enlarge.

Tanker truck illegally removing water from well. Click to enlarge.

DNRC email. Click to enlarge.

email update from Kim Overcast, Regional Director of Montana DNRC. Click to enlarge

May 21: After receiving a citizen complaint and dozens of calls and emails from local citizens, the Montana Department of Natural Resources shuts down the illegal appropriation of water from a local gravel pit without a water right.

May 23: The contractor makes a deal with the town of Bridger to get one truckload of water per day until June 10. The deal was made without a public hearing.

June, 13: ECA begins dismantling the well structure. Dismantling is complete on June 16.

Well head, July 18. Click to enlarge

Well head, July 18. Click to enlarge

July 7: ECA gives notice to the BOGC of “intent to perforate” the well. In addition they filed an “intent to stimulate or chemically treat the well.” Both of these are steps toward hydraulic fracturing.

According to Jim Halverson of the Montana Board of Oil and Gas (BOGC), ECA has told him that they plan on monitoring the results of the perforations for 30 days, then will apply to frack if they want to move forward. Fracking requires 48 hours advance notice to the BOGC.

As of November 20, no fracking of the well has taken place.

August 18: Landowners from the Silvertip area present petitions to the Carbon County Commissioners to establish a citizen initiated zone in their area. An overflow crowd supports the petitioners. You can view a video of the meeting below.

September 8: The Carbon County Commissioners invite ECA to speak before another packed meeting. Rather than send senior executives, the company sends the Belfry well project manager and a community relations representative based in West Virginia, who are unable to provide adequate answers to questions from the audience. Video of the meeting below, and my comments here, here, and here.

Click to view full letter

Click to view full letter

September 17: The Carbon County Commissioners hold an evening public meeting at Belfry School to allow public input into issues related to oil drilling in the area. ECA attorney Mike Dockery and the ECA project manager are invited in advance to speak, and Silvertip landowner Bonnie Martinell is asked to join them at the beginning of the meeting. Dockery makes a lengthy presentation in which he outlines ECA’s objections to the Silvertip Zone, detailed in a letter to the Carbon County Commissioners. You can read the letter by clicking on the photo at right.

The video below shows the entire meeting. It is a wonderful example of citizen involvement. There were many speakers with comments, questions and concerns. They represent different points of view, different levels of understanding, and personal experiences. It is exciting to hear people engage in the process.

Alex Nixon, Carbon County Attorney

Alex Nixon, Carbon County Attorney

September 18: County attorney Alex Nixon provides feedback to the Silvertip Zone petitioners on the legal standing of their petition.

He advises the County Commissioners not to take action on the petition for one primary reason: the law requires that the land in a citizen-initiated zone be contiguous, and the Silvertip Zone is not a single contiguous parcel.

He also indicates that he has concerns that the petition is not specific enough about what is to be zoned, even though supporting documents are much more specific.  He said that this concern by itself was not enough to keep the Commissioners from acting on the petition.

He says that legal shortcomings are common in petitions of this type, and that he has been involved with many that required multiple iterations to achieve approval.

He recommends that the petitioners redo the petition, define the zone properly and come back.

Video of the meeting:

October 1: It is revealed that Energy Corporation of America is being sued for underpaying oil and gas royalties to hundreds, possibly thousands, of Pennsylvania landowners.

November 20: Silvertip landowners return to the County Commissioners with a new petition for a contiguous zone, signed by all but one of the original petitioners within the boundaries of the zone.

The Commissioners promise to respond promptly.

Stay tuned. We’ll continue to keep you updated.

 

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Halliburton buys Baker Hughes. So much for revealing the chemical contents of fracking fluid

Halliburton, the world’s second-biggest oilfield services provider, said Monday it will acquire its smaller rival Baker Hughes in a deal worth $34.6 billion in cash and stock. The offer will net Baker Hughes shareholders an immediate 31 percent profit.

The combined company had 2013 revenues of $51.8 billion, more than 136,000 employees and operations in more than 80 countries around the world, Halliburton said in a statement.

“The transaction will combine the companies’ product and service capabilities to deliver an unsurpassed depth and breadth of solutions to our customers, creating a Houston-based global oilfield services champion, manufacturing and exporting technologies, and creating jobs and serving customers around the globe,” Dave Lesar, chairman and CEO of Halliburton, said in a statement.

Normally I don’t pay too much attention to oilfield business news, but the combination of the two companies posed an irony that was too good to pass up.

Last April Baker Hughes announced it was going to start revealing the chemicals it uses in fracking fluid.

This got a lot of press, since the industry has secured exemptions from federal law that allow them to protect these chemicals as “trade secrets.” But there were disclaimers built in — a sentence buried in the company’s announcement made it clear the industry isn’t going to be reformed overnight. Baker Hughes said it will provide complete lists of the products and chemical ingredients used in frack fluids “where accepted by our customers and relevant governmental authorities.”

Dick Cheney It's his fault

Dick Cheney
It’s his fault

In other words, if their customers, who are drilling companies, and individual states, which are often in the pockets of the oil and gas industry, don’t want them to disclose, they won’t.

And now, who bought Baker Hughes? Halliburton, the namesake of the infamous “Halliburton Loophole,” embedded in the Energy Policy Act of 2005, which pretty much turned over control of water quality to the oil and gas companies. The Halliburton Loophole one of the reasons why oil companies do not have to tell us what chemicals they use in the fracking process.

In case you’ve forgotten, the Energy Policy Act of 2005 was pushed through by Vice President Dick Cheney, former CEO of Halliburton.

Halliburton is already busy replacing Baker Hughes’ Board of Directors.

So much for oil companies revealing the chemical ingredients in fracking.

Update, 11/21/14: Since I posted this I’ve seen a couple of news stories in the same vein. Here’s one from the Society of Environmental Journalists.

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New research: support for fracking declining, but opinions becoming more entrenched. What it means for the Beartooth Front

New research shows that American attitudes toward fracking are becoming more negative, but they are crystallizing and becoming more entrenched. While this may be a problem in many communities, it creates opportunity for us along the Beartooth Front.

Fracking support changes1New research on fracking
A recent Pew Research Center Poll shows that support for increased use of fracking to extract oil and gas has declined steadily over the last 18 months.

We posted on this last January, saying that “American attitudes about fracking are just forming, but we’re deeply divided.” Nearly a year later, the topic is not so new, and attitudes are becoming more crystallized.

Overall, 41% of Americans favor increased use of fracking, down from 48% in March, 2013, and 47% oppose, up from 38% 18 months ago. That’s a 16% swing in attitudes.

Fracking support changes2According to the Pew study, opposition to increased fracking has grown among a number of demographic groups. Women now oppose the increased use of fracking by a wide margin (54% to 31%), a negative swing of 22% in 18 months. Support for increased fracking has fallen 10 points among younger adults (those under 50) since then, from 48% to 38%, while holding steady among older Americans (currently 45%).

There has been a particularly dramatic change in views of fracking among those in the Midwest. In March 2013, 55% of Midwesterners favored expanded fracking while 32% were opposed. Today, 47% oppose more fracking while 39% support it. This is not surprising, given that fracking has become a highly contentious political issue in states like Ohio, Illinois and Michigan. In the West, there has been a 15% negative swing over the time period studied, with 54% now opposed to increased fracking.

The partisan gap over increased fracking remains substantial: 62% of Republicans back the increased use of this process compared with 29% of Democrats. Independents now oppose expanded fracking, 53% to 37%, a complete reversal of their attitudes a year and a half ago. Among Republicans, conservatives have stayed steady in their support for fracking, while more moderate Republicans, while still favoring fracking, have moved swung about 10% in a negative direction.

Belief superiority
But public opinion needs to be measured not only by the changes on the favor/oppose scale, but by how strongly people hold their opinions.

Raimi

Raimi

New research shows that this division is becoming deeper, and is unlikely to lead to easy compromise or resolution. In a new study recently published in the Journal of Environmental Psychology, Kaitlin Toner Raimi of Vanderbilt University and Mark Leary of Duke show that on both sides of the fracking debate, those with stronger views, whether in favor or opposed to fracking, have a higher level of “belief superiority,” meaning that they think their views are more “correct” than the views held by other people.

What the study found was that, when people were shown an article, whether for or against fracking, they were polarized by reading the article. Their “belief superiority,” no matter what side of the issue they were on, they became even more certain of their views.

For people who were less certain of their views, it had the opposite effect:

“It’s kind of classic motivated reasoning,” says Raimi. “People are finding information about the articles to agree with them — what’s new about this is that we’re seeing the people who are feeling superior are more likely to do that.”

It also means that, for people who are just forming an opinion, it is important for us to provide information about issues related to oil and gas drilling to help them understand the risks inherent in the process.

The lesson for us on the Beartooth Front
There’s a clear lesson for those of us working to develop a strong community solution to the issue of how or where fracking should take place along the Beartooth Front:

We can’t make the fight about pro-fracking or anti-fracking. People who have strong opinions on either side of the debate are not going to be moved.

Anyone who is familiar with the voting patterns of Carbon and Stillwater Counties knows that they consistently vote strongly Republican. In the 2012 Presidential election, Carbon County voted for Romney over Obama 60-36. Stillwater County favored Romney 71-26. Statewide, Romney won 55-42.

So, the data tells us that conservatives strongly favor fracking, and that Carbon and Stillwater Counties are conservative, even moreso than the rest of the state. The first clear lesson should be obvious. To the extent that the community discussion becomes a fight pitting pro-fracking vs. anti-fracking, the anti-fracking side will lose.

This understanding is central to the approach local grassroots groups have taken. Unlike groups in Colorado, Ohio, Texas, New York and California, there is no organized anti-fracking group in Carbon or Stillwater County.

Instead, the approach has been to develop a solution that is fair to mineral rights holders, but also to local residents and land owners who want to make sure their water is not contaminated, their property rights are preserved, and their livelihoods remain intact.

Aerial view of ECA well pad across from Montana Jack's in Dean

Aerial view of ECA well pad across from Montana Jack’s in Dean

Citizen initiated zoning
This led local groups to citizen initiated zoning, set forth in Montana law in MCA 76-2-101, which enables local governments to set the terms on which oil and gas drilling can be done on their properties. 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.

This is a fair and balanced approach to compromise between competing interests in a community. Rather than pit one group against another, it is a way for local governments and communities to look beyond one group claiming “belief superiority” over another, or pitting today’s economic needs against the long-term future of a community.

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Finding the truth about the health impacts of drilling in the Information Age: a remarkable new study

We are coming closer to a “smoking gun” that ties fracking to negative health outcomes. It will take time — the Shale Revolution is only ten years old and the health impacts will take years to reveal themselves, and the oil and gas industry is doing everything it can to keep us in the dark.

Today’s post highlights an important  step forward. It’s about a new study that is remarkable in its conception — it promises to cut through the secrecy and legal protections that the oil and gas industry enjoys by employing technology, science, and the collaboration of creative scientists and citizen activists all over the world.Photo: Simon Fraser University Communications

Here are the pieces that came together to make this happen:

  • Brian Schwartz

    Brian Schwartz

    Brian Schwartz, an environmental epidemiologist, and a group of researchers at the Johns Hopkins Bloomberg School of Public Health in Maryland were interested in studying the health effects of living near a drilling or fracking site. The most logical state in which to do this is Pennsylvania, where the Marcellus Shale is Ground Zero in the shale revolution.

  • There is no public map or dataset of existing drilling sites, so the researchers went to an organization called SkyTruth and its FrackFinder Program, which “maps drilling and hydraulic fracturing (fracking) across the United States using crowdsourced image analysis of aerial and satellite imagery.” In other words, the program trains volunteers to view satellite images and identify drilling sites.
  • To find the sites, volunteers were trained to find impoundments, or ponds, where produced water from fracking is stored. Skytruth asked volunteers to look at aerial imagery of locations where drilling permits had been issued, and respond to very simple questions about what they saw on imagery taken in 2005, 2008, 2010 and 2013. The project used a multi-phased approach to make sure there was no confusion about what was an impoundment and what was a duck pond, a shadow, or a manure lagoon. The images were shown to multiple trained volunteers, and over 70% agreement was required for each site to verify that it was indeed an impoundment.
  • Here are the number of impoundments that were discovered in each year:
Year Number of Ponds Area – Average (sq meters) Area – Median (sq meters)
2005
11
608.9
344.9
2008
237
1,040.9
558.8
2010
581
3,416.9
2,001.6
2013
529
7,552.8
6,209.7

In 2005 the shale revolution was just beginning, and so there were very few ponds near permitted drilling sites. As you can see, as drilling ramped up the ponds got larger. “As of 2013, the total impoundment surface area measures nearly four million square meters, scattered across (Pennsylvania). (New York’s Central Park measures 3.4 million square meters.) ” These were not all the same ponds — of the 581 ponds identified in 2010, only 116 were still there in 2013.

impoundment-81The next step will be to analyze the prevalence of individual diseases by distance from drilling sites. This will take several months, but at the end we should have some very good data about the health impacts of drilling on people living close to drilling sites.

The beauty of this is that the oil and gas industry has depended for years on keeping secrets. They come into a community and rely on spreading fear, uncertainty and doubt. They purchase loyalty and silence, and work to encode this in the law. One of their tools is secrecy about well locations, which is a barrier to research.

In the Information Age, it is harder and harder to do that. In Pennsylvania the combination of technology, science, collaboration and citizen activism is breaking the code of silence. The more we know about the real dangers of oil and gas drilling, the more we can do what’s best for our communities.

More…

Click here for an interactive map of impoundments related to shale gas drilling in Pennsylvania, as identified by SkyTruth staff and volunteers on USDA aerial survey photography from 2005, 2008, 2010 and 2013.

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A don’t miss event: see Helen Slottje in Billings this Saturday

If you can, take advantage of the opportunity this weekend to see one of the great heroes of the fight for citizen rights against unregulated oil and gas drilling. She’s Helen Slottje, an upstate New York attorney who is the deserving winner of this year’s Goldman Environmental Prize, which annually honors grassroots environmental heroes across the globe.

She’ll be the keynote speaker at the annual meeting of Northern Plains Resource Council this Saturday, November 15 at the Crowne Plaza Billings from 11:30 – 12:30. You can attend just this session, the entire two-day meeting, or join Northern Plains by clicking here.

Helen Slottje
Helen Slottje

Helen has spent the last four years crafting a successful legal strategy utilizing zoning laws to prevent oil and gas fracking from entering communities across New York, and she hopes her speech can help do the same for Montana.

“The communities are on the front lines of the impacts of hydraulic fracturing,” she said. “Communities have always had the right to make local decisions that affect the places where this might happen. They’re the people who bear the costs and the burdens of this, so they should have the right to make decisions that impact that.”

This video of her, made for the Goldman Prize announcement, includes this inspirational summary of the impact of her work:

“She changed the paradigm of human interaction with the oil and gas industry. As citizens we have the right to say no. “

We’ve written extensively about her on this blog. She was the subject of a personal story, and we presented a remarkable video of the David-and-Goliath tale of how the town of Dryden, New York took control of its own destiny and banned fracking. Over 170 towns in New York have taken advantage of Helen’s work by issuing bans.

Last July, the New York Court of Appeals upheld the right of cities in that state to ban fracking, the ultimate validation of Helen’s work.

Citizen groups in Carbon and Stillwater Counties are working on signature gathering to establish citizen initiated zones along the Beartooth Front. These zones would not ban fracking, but would establish the rules under which oil drilling would take place, making sure that the rights of property owners and communities are balanced with those of oil and gas companies.

Update 11/13/2014: Audio of Helen Slottje interview with Deb Courson Smith of Public  News Service

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A personal story: Dusty and Tamera Hagy, Part 2. How the oil and gas industry has protected itself from legal liability

Dusty and Tamera Hagy, Jackson County, West Virginia
Yesterday we told the personal story of Dusty and Tamera Hagy, who bought their dream home in rural West Virginia in 1989, and had to abandon it 24 years later because their property had been ruined by drilling activity. They lost in court after accumulating over $175,000 in legal fees.

Today we examine how something like this can happen in the United States of America.

This story was originally told by Laurel Peltier at her excellent blog Greenlaurel.com, and on the environmental site Ecowatch. Laurel has graciously agreed to allow me to use the story and to edit it to make it relevant to the Beartooth Front.

This video by Laurel Peltier summarizes the Hagys’ story.

To view other personal stories on this site, click here.

The federal legal exemption framework
The Hagys’ water contamination lawsuit demonstrates how the natural gas industry has built a near-perfect federal legal exemption framework to protect itself from legal liability. This federal framework pushes responsibility to state legislatures unprepared or unwilling to protect its citizens from the economic engine of oil and gas. The result? Citizens become collateral damage with no possibility of restitution.

The consequence of this framework is that the burden of proof is placed on plaintiffs who, at best, are forced to settle with natural gas companies, thereby sealing the case from public scrutiny, scientific examination and legal precedence. Because the Hagys didn’t sign a non-disclosure agreement with the natural gas companies involved, their legal case gives the public a rare window into how fracking lawsuits play out in reality.

Since the Hagys’ story was written, we now also have the personal story of Bob and Lisa Parr of Wise County, Texas, who this year won a $2.9 million judgment against Aruba Petroleum. To date this is the only fracking damages case successfully brought to trial in the United States.

Oil and gas exemptions from federal environmental legislation
In the 20-year period between 1970 and 1990, under Democratic and Republican presidents, the US Congress passed a series of powerful environmental legislation. There was a clear recognition among our leaders that our population was growing and expanding, and firm steps needed to be taken to protect our water, air, land and health.

But the oil and gas industry wasn’t having it. As we’ve often discussed,  the oil and gas industry has achieved significant exemptions from major federal environmental legislation designed to protect the environment and personal property from corporate abuse. They have purchased these exemptions by showering contributions on powerful Congressmen from oil producing states.

Laura Peltier has created this summary chart to show how, over time, these exemptions have eroded protections passed by Congress.

Seven

Three of these exemptions were enacted as part of the Energy Act of 2005, pushed through Congress by Dick Cheney in the wake of the Iraq War. Cheney clearly anticipated the shale boom and saw that this legislation was needed to clear the way for the rampant expansion of drilling across the United States. Collectively they are known as the Halliburton Loophole, compressed into three short paragraphs. Together they:

  • end EPA oversight of oil and gas drilling and responsibility for discharging pollutants, pushing legal oversight to the states, which have been sporadic and slow to react in their oversight efforts
  • no longer require scientific testing, public health or geologic studies
  • remove legal liabilities for drillers who release chemicals into water and air, and

Toxic release inventory exemption
The least known exemption, and perhaps the most damning, is to the 1986 Toxic Release Inventory of Emergency Planning and Community Right-to-Know Act. It offers the oil and gas industry the biggest shield from liabilities and the greatest obstacle for parties alleging fracking water contamination.

In response to the Bopal, India disaster, when Union Carbide released a harmful gas into an urban area which killed more than 20,000 people, Congress required industries to list harmful chemicals on the Toxic Release Inventory to the EPA. The EPA collects and then disseminates that information to the public and local governments.

Amazingly, oil and gas companies were exempted from the Toxic Release Inventory, which means that chemical disclosure is differently regulated in each of the 29 oil and gas producing states.

How exemptions play out in the law-can you prove what you drank?
In the Hagy lawsuit, Equitable (the defendant) wasn’t legally required to disclose the chemicals used in fracking. Therefore, when baseline testing was done, no doctor, no person or group knew what chemicals to test for or what caused the foam in the creek, the color changes in the pond or the compromised water well.

Though water tests revealed the Hagy property drinking water had changed since the drilling began, the tests were not apples-to-apples comparisons.  During the lawsuit’s evidence discovery process, the drilling firms finally furnished the list of chemicals used on the Hagy property. This disclosure verified the fracking chemicals used weren’t “just water and sand,” as the landman told the Hagys.

The absence of verifiable chemical data is displayed in Judge Goodwin’s opinion and order to grant a motion for Summary Judgement, which in layman’s terms means the Hagy lawsuit was dismissed. The burden of chemical exposure proof was placed on the plaintiffs, “to demonstrate amount, duration, intensity and frequency of chemical exposure.” Since they hadn’t done baseline testing for the chemicals used in frackign, there was simply no way for the Hagys to legally prove that the contamination of their formerly pristine well water hadn’t existed prior to the drilling.

So, in the end, the framework of federal law designed to protect our environment and our health has been subverted by the oil and gas industry with the active help of the US Congress. Families like the Hagys are the collateral damage.

A word about baseline water testing
We have often discussed the importance of baseline water testing on this blog. If you are a land owner who is concerned about drilling on or near your property, please read our posts on this subject. As the Hagys learned in the most painful way, it is absolutely critical that you have baseline testing done by a professional certified testing company prior to any drilling in the area

This is a protection that citizens in Carbon and Stillwater Counties are seeking as part of citizen initiated zoning in those counties.

As a land owner who could be impacted by drilling, it is essential that you get baseline testing before drilling begins, and then periodic testing once the drilling starts. The testing should be done a certified lab that specializes in oil and gas drilling, because it is critical to test for the types of chemicals used in fracking.

Update from Laurel Peltier. Laurel read yesterday’s post and forwarded a few comments.

It’s important to note that the Hagys lost two court cases for different reasons:

In district court they lost because they could not prove which chemicals were used, how long their exposure lasted, and how those elements tied to their medical records.

In federal appeals court they lost because Dusty Hagy had unwittingly signed the waiver of liability.

Double swindle.

But on a  positive note — the Hagys bought another property with their own savings. In the end, they have their family, a new home and have moved on.

This provides a lesson for all of us. Life knocks all of us down. What makes us better people is our unique human ability to pick ourselves up and turn negativity into the will to survive, rebuild and prosper.

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A personal story: Dusty and Tamera Hagy, Jackson County, West Virginia, Part 1 (with video).

Today’s personal story was originally published by Laurel Peltier on her excellent blog greenlaurel.com and on the environmental web site Ecowatch in February 2013. It is a powerful story, and Laurel has graciously allowed me to use and edit it for this blog. She’s also explained what happened after the story was published, so read on to find out.

As powerful as this story is, Laurel’s analysis of how oil and gas industry exemptions to federal environmental laws designed to protect people like the Hagys is outstanding. To include this I’ve divided the post into two parts. Here’s the second part.

You can read other personal stories on this blog by clicking here.

All photos in this post were taken by Dusty and Tamera Hagy, and the video was created by Laurel Peltier.

Hagy1Dusty and Tamera Hagy,        Jackson County, West Virginia
In 1989, Dusty and Tamera Hagy bought their dream house on 81 rural acres in Jackson County, West Virginia. Twenty-one years later, the Hagys abandoned their home and sued four drilling firms, alleging the wells drilled on their property in 2008 contaminated their drinking water and caused physical harm.

The results of the Hagys’ water contamination lawsuit demonstrates how the natural gas industry has built a near-perfect “federal legal exemptions framework” that when combined with lax or absent state regulations and the legal system’s high costs, inherently approves of citizen collateral damage with no restitution.

In this system the burden of proof is placed on plaintiffs who, at best, are forced to settle with natural gas companies, thereby sealing the case from public scrutiny, scientific examination and legal precedence. Because the Hagys didn’t sign a non-disclosure agreement with the natural gas companies involved, their legal case gives the public a rare window into how fracking lawsuits play out in reality.

The landman cometh
Dusty and Tamera Hagy unwittingly fell into the trap the day they bought their land in 1989.

“We loved our 81-acre property. It was our life. We had paid off the mortgage and spent a lot of money fixing the place up. We raised our two boys there, buried our animals there and were planning to give our boys some property,” said Dusty Hagy.

Mineral rights, fracking chemicals and federal environmental laws were far from the Hagys’ minds when a pleasant Equitable Production Company representative visited the couple in October 2007.

The representative told the Hagys that four wells were going to be drilled on their property about 100 feet up the hill from their home.

As in Montana, surface ownership is separate from mineral ownership in West Virginia. The Hagys owned their surface estate, but someone else owned the minerals underneath. The Hagys received no royalties and didn’t sign a formal leasing contract, although they did sign plenty of documents because the nice landman told them they had no choice.

The drilling begins
On November 11, 2007 trucks, backhoes, tree cutters and workers converged on the Hagy property uphill and upstream from their home. Equitable outsourced the drilling to BJ Services and for the next six months, the “holler,” or enclosed valley, was flattened for a six-acre well pad.

Hagy3As Tamera describes it, life during this period “was nothing like what I had expected. This was a huge operation that lasted day and night for eight months. Trucks went up and down the road 24 by 7. The smell of fumes would make you sick. One night we heard something like a giant drill bit drilling and vibrating under our house.”

Dusty visited the well pad often and learned from the job crew that the job wasn’t going smoothly. One worker mentioned that they had hit a lake of water and were moving the rig. Another worker shared in this audiotaped recording how the cement casing “went bad” and was re-cemented.

Of the four open and lined wastewater ponds, one overflowed and later broke, spilling the produced water into the nearby creek that flows from the well pad past the family home. In March 2008, Dusty noticed that the wastewater from another pond was emptied by hose into the woods. After finding foam and oil slicks in the creek next to their well, and then when their large pond turned green, the Hagys knew something wasn’t right.

Dusty lodged a formal complaint with the West Virginia Department of Environmental Protection (DEP) on November 17, 2008, a year after drilling began. DEP records reveal a gas inspector visited the site at the well’s completion and issued no citations. DEP records also reveal the three wells began producing in July 2008 and the wells today continue to produce about 3000 mcf of gas per month.

Dusty recalls the Equitable representative: “We liked him, and he was a nice enough guy in the beginning and we believed everything he told us at face value.” Equitable said the drilling was simple and would cause minimal damage on 1.5 acres of the Hagys’ land. When Dusty asked if the the process used anything dangerous, they were told that only water and sand were used. No chemicals were mentioned. Baseline water testing done prior to drilling supported the Hagys’ belief that their water well was clean and safe.

On October 22, 2007, Equitable paid the Hagys $19,000 to cover surface damages to their land and trees. “I believed the Equitable guy when he said the check was just for surface damages. My property was valued at nearly $200,000. It was stupid to sign that paper. I should have gotten a lawyer,” he ruefully recalls. Because the well pads used more than the original 1.5 acres, Equitable paid the couple another $10,000 for damages on an additional four acres.

Later in 2008, Dustry learned the papers they had signed were actually damage release contracts attempting to exempt Equitable, and all drilling providers, from any and all damages associated with the drilling. “Other than shooting the family dog, this ‘contract’ covered near everything,” says Dusty.

Hagy4The family gets sick
The family drank, bathed and cooked with their well water form November 2007 to November 2008 during the drilling period. The Hagys were proud of their pristine well water. Even after the adult sons moved out, the boys brought jugs of well water back to their homes.

The Hagys began to notice changes to their water in early 2008. Their water volume was dropping and the water color changed from clear to brown. Often black particles were floating in water drawn from the well. Despite this evidence, Equitable never reported any issues that might explain the contamination.

Beyond this, both Dusty and Tamera said they were oddly tired, and woke up with “bad headaches, like a hangover.” Both smelled an “acid” odor in the house and their eyes would burn in certain rooms.

The Hagys didnt’ make the connection until their youngest son went to his family doctor in Columbus, Ohio in October 2008. The son had complained of nausea and was spitting up blood. His doctor treated him for acid reflux, a disorder he’s never experienced before, and suggested he stop drinking water from the family well. The son’s symptoms disappeared shortly after he discontinued drinking the well water.

Tamera developed a rash that her primary care physician diagnosed as contact dermatitis, a skin inflammation caused by a foreign source. Expert medical testimony in court documetns reveals that the Hagys’ health symptoms were consistent with chemical exposure.

Water testing reveals significant change
Based on the Hagys’ complaints, Equitable re-tested the Hagy water well on November 8, 2008 and the results showed that their water had clearly changed. The turbidity was six times greater after a year of drilling, and levels of iron, manganese and calcium increased significantly.  Dusty replaced one water heater during this time because of calcium build up.

Water tests conducted later also revealed arsenic, lead, barium and Bis(2-etheyhexyl)phthalate, an organic compound linked to fracking wastewater. The radon levels of the Hagy well were markedly higher than the eight other nearby wells tested by the US Geologic Survey. The well was never tested for volatile organic compounds (VOCs) or chemicals known to be associated with fracking.

Hagy5In November 2008 Equitable told the couple “the water was bad” and they should no longer drink it. The company then began supplying bottled water for the family’s use.

Home abandonment and lawsuit
On January 13, 2009 the Hagys vacated their home and have never moved back. “We thought we were going to die,” recalls Dusty.

The family’s relationship with Equitable deteriorated. Dusty began recording phone conversations. Tje company did not respond to the Hagys’ repeated requests for a list of the chemicals used in fracking.

Equitable admitted “your water’s been affected because of our drilling process.”

Dusty assumed Equitable would fix the water issue based on phone conversations he had with the company’s representative, and recorded.

The representative stated,

“for whatever reason the water’s been affected because of our drilling process. But the horizontal portion of it I don’t think had anything to do with it. Something we did had something to do with it. We have done something ito the water, and no one was doubting that, but it wasn’t the horizontal part. I’m not doubtin’ that fact and I don’t think anybody’s doubtin’ that, the horizontal portion wouldn’t affect it.”

Hagy6Equitable offered to drill a new water well which the family declined because they believed the aquifer itself was contaminated. This belief stemmed from a neighbor’s claim that 30 of his animals had died in 2008 during the drilling. Equitable insisted that any restitution to the couple be tied to signing a non-disclosure agreement, or gag order, meant to silence the Hagys and negate any future claims.

The family hired a lawyer in March 2009, as detailed in a taped audio conversation, and all contact with Equitable ceased.

Bottled water deliveries and hotel payments stopped. While the couple searched for a rental home, they lived in their unheated camper. Their negative health symptoms dissipated the longer they lived away from their property.

The Hagys sued Equitable, BJ Well, Halliburton and Warren Drilling in October 2009. In short, even with the taped calls, drilling records, photos, videos and water tests, the Hagys lawsuit was dismissed in August 2012. Hagy et al v Equitable Production et al stated, “The case presents no genuine issue of material fact for a jury to determine.” The Hagys legal costs as of the date of Laurel Peltier’s article were $175,000.

You can see a chronology of the recorded phone coversations and listen to them by clicking here.

Here is Laurel Peltier’s video summarizing the Hagy’s case:

Update: I recently spoke to Laurel Peltier, the author of the story, and she told me they Hagy’s have exhausted their appeals and they have lost the case.

Coming next: Tomorrow we’ll look at the Hagy’s story as a cautionary tale of how the oil and gas industry has become exempt from the federal laws designed to protect the Hagys, and how those exemptions leave families like the Hagys without recourse to protect themselves from predatory contracts.

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Falling gas prices and the uncertain future of the Shale Boom

Gas pricesWho’d have guessed it? Gas prices under $3.00. That’s what you pay these days in Red Lodge and Columbus. Great news, right?

Maybe not for Energy Corporation of America and other companies that have plans to bring “a little bit of the Bakken” to the Beartooths.

The continuation of the shale boom in the United States depends on the price of oil. The costs of getting the oil out of the ground and to the pump — labor, equipment, refineries, shipping — don’t fluctuate much. So if the price of oil goes down, it means revenues decline and getting the oil out of the ground becomes less profitable.

Oil prices August - November 2014. Click to enlarge.

Oil prices August – November 2014. Click to enlarge.

And make no mistake about it, the price of oil is coming down. In the last three months the price per barrel has declined from $96 to $77.88 as of November 6. The price has dropped 25% since June is now hovering at right around a three-year low.

There are several reasons for this. There’s the increase in North American production, an increase in Libyan production, reduced demand in Europe and Asia, and a recent cut in prices by OPEC, among others.

In the short term you can’t worry too much about oil price fluctuations. It’s nice to pay less at the pump, but we’re used to seeing gas prices rise and fall.

But what happens if these price levels continue?

At $100 a barrel, oil produces about $15 of profit per barrel. Because costs are relatively fixed, at $90 a barrel that profit goes down to $5, and at current prices it is not profitable to pull oil out of the ground.

For large stable companies that is not a problem in the short run. But for smaller companies that have taken on substantial debt to drill in shale plays, the drop can be catastrophic.

In the longer term a drop in price will mean that production goes down, and it will affect production first in areas where reserves are not as rich as in the Bakken.

We don’t know what’s going to happen. But here’s the key point for elected officials and residents along the Beartooth Front. An oil economy is by its very nature a boom and bust ride, and there’s nothing local communities can do to control when it booms and when it busts.

We can look at the wealth generated in the Bakken and wish that it comes here, but even if there are substantial oil reserves in Belfry and Roscoe, whether it gets pulled out of the ground will depend on events in Washington and Saudi Arabia and China and Europe and Iran and elsewhere outside our control. And if, as many believe, the reserves here aren’t as rich as in the Bakken, operators will vacate here if the returns don’t match those in North Dakota.

Our responsibility in the face of this uncertainty is to maintain the long term viability of the community: to make sure personal property is protected, to require the preservation of our water, and to enable the continuity of a way of life along the Beartooth Front. These are the things that need to be constant no matter what happens to the price of oil.

 

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