Action Alert: Please write the Stillwater County Commissioners by Thursday, November 22

This is a request for action from those of you in Stillwater County. The County is in the process of updating its growth plan, last updated in 2007. They have done a poor job of soliciting input from the public, and the current draft of the plan is inadequate in many respects. I write about oil and gas issues, an area that has received little attention in the draft, so I am asking you to comment on that.

COMMENTS ARE DUE NO LATER THAN THURSDAY, NOVEMBER 22, so please submit yours by then. Send by email to commission@stillwater.mt.gov.

The Beartooth Front is a unique area that is vulnerable to oil and gas drilling. A failure to plan jeopardizes its long-term health.

Growth planning in Montana
Growth
 planning is an essential element of county government in Montana. The comprehensive county growth plan was enshrined into law by the Legislature in 1999. While a growth plan does not have the force of law, it is an important document for shaping future policy. According to this law, the development of a growth plan is required to enact zoning.

Unlike in 2007, the County Commissioners have not been proactive in soliciting public comment. As a result they have received very little feedback, and so we have a chance to influence the plan by having an outsied voice about issues that are important to us.

You can view the 2018 draft growth plan by clicking here. The discussion regarding oil and gas development is mainly in Sections 4 and 5.

Here are the comments it would be helpful for you to make:

  1. Express concern about the impact of future oil and gas drilling and how it might impact areas in Stillwater County along the Beartooth Front in any or all of the following ways: incompatibility with agriculture, ranching, recreation, health, environment, or community. Speak about your personal concerns, and the need to develop regulations to ensure that drilling is done in a way that protects us.
  2. Please make this specific point: In section 5.1 of the document, there is the following statement:

“Stillwater County currently has one citizen initiated zoning district on the West Fork of the Stillwater River (see map on page 5-2) and has received petitions and inquiries about creating other planning and zoning districts. This trend may continue in the absence of land use controls, so it may be beneficial for the County to begin evaluating regulatory options now to avoid addressing issues on a case-by-cases basis.”

Please ask the commissioners to delete this paragraph. In the entire history of Stillwater County, there have been three citizen initiated zoning petitions — one in 1979, one in 1998, and one in 2015 (the Beartooth Front petition). This is not a trend, and it is appropriate for individual areas of the county to develop their own zones when they have unique needs.

You may wish to comment on other areas of the plan. For your interest, here is a letter from local resident Burt Williams, who made wide ranging comments.

Inadequate community outreach
Here’s some background on how the Stillwater County Commissioners have not taken public feedback seriously. In 2007 they did. They sent direct mail surveys to over 3000 county residents, and they held 12 public meetings all over the county. County employees attended public events and handed out surveys, and there were notices published in local papers.

Their efforts yielded broad public input. The meetings were well attended, and they received 400 surveys back, getting valuable input on the issues that were important to residents. That return represented about 5% of county residents, which, as any marketer will tell you, is a strong response.

In 2018, there was no such earnest effort to solicit public input. Surveys were not mailed to residents, but were only placed online on the County’s web page. Notices were placed on organizational Facebook pages, but the social media outreach did not extend beyond organizational pages to social pages such as the Come Together Absarokee site, which has over 1700 members. There were only four community meetings — in Park City, Columbus, Reed Point, and Absarokee.

This lackluster effort could not be classified as outreach at all. A web-only strategy with no direct personal notifications only reaches a small number of people. How many of you went to the Growth Plan page on the Stillwater County web site during the summer? I didn’t think so.

The results were predictable. The County received only about 65 surveys from residents, a paltry return of less than 1% of residents. As an example, there were 22 survey responses from Nye in 2007; there were none in 2018.

Why this batch of commissioners is uninterested in engaging with the public is beyond my speculation at this point, but planning in Stillwater County is going to suffer unless you take this opportunity to raise your voice.

Growth plan, public_private

Click to read Carbon County’s 2015 Growth Plan update

How it works in Carbon County
Neighboring Carbon County updated their growth plan in 2015, and their public outreach was a model for how residents can be engaged to develop a growth plan that serves the public rather than the county commissioners.

The County began by soliciting public input through an extensive road show, holding half-day meetings all over the county. They made a video of public input and made it available. There were ongoing discussions at well-attended planning board meetings.

The result was a comprehensive document, which you can view by clicking on the graphic above. Input on oil and gas development received during this process led to the establishment in 2016 of a zone that provided reasonable regulation on drilling, including a 750-foot minimum county-wide setback of wellheads from occupied dwellings (see p. 22). (Montana does not require setbacks from occupied dwellings.)

Please write the Stillwater commissioners by November 22 to make sure they hear what we have to say about planning.

 

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Lessons from other states: Nevada and Arizona

We are currently looking at energy initiatives in other states that are on the ballot in November, 2018. Previous posts:

Lessons from other states: Colorado
Lessons from other states: Washington carbon fee initiative
November ballot initiatives in other states

Renewable portfolio standards: Nevada and Arizona
There are two nearly identical November 6 ballot measures in Arizona and Nevada, where voters will separately decide whether to require utilities to acquire at least half of their electricity from renewable sources by 2030.

Both measures would raise the “Renewable Portfolio Standard” (RPS) to 50% by 2030. An RPS requires electric utilities to ensure that a specified percentage of electricity they sell comes from renewable energy, which is usually tracked through a credit system. That allows for certain types of energy, such as electricity produced through rooftop solar systems, to have a “credit multiplier” effect and count more towards meeting the required minimum production standard.

Nevada
Nevada Amendment 6, if approved, would change the state constitution to raise Nevada’s Renewable Portfolio Standard] to 50 percent by 2030. The state’s current RPS is set at 20 percent and will increase to 25 percent by 2025. The PAC supporting the ballot measure was able to turn in more than 230,000 signatures to state election officials in June, far above the required 112,544 signatures needed to make it onto the ballot.

NV Energy, the state’s primary electric utility, said in April that it had a 24 percent clean energy portfolio for 2017, ahead of the required 20 percent RPS minimum. The utility has not taken a position on Amendment 6, which means it has a good chance of passing.

The Crescent Dunes Solar Project, 190 miles NW of Las Vegas, began operation in 2015. Photo by Amble.

If approved, the RPS would not immediately increase to 50 percent overnight — instead rising to 26 percent through 2022 and 2023 and rising by 8 percent every subsequent two-year period until 2030.

NextGen Climate Action is the primary PAC supporting Amendment 6, and has raised $6.4 million. There is no active fundraising campaign opposed.

Arizona
Arizona Proposition 127  would increase the state’s RPS each year until reaching 50% by 2030. As of 2018, the state’s RPS is 15% by 2025. Proposition 127 would increase the RPS each year until reaching 50 percent in 2030. The initiative would define renewable energy to include sources such as solar, wind, biomass, certain hydropower, geothermal, and landfill gas energies.

As in Nevada, Next Gen Climate Action is leading the charge in favor of the initiative. Proponents have raised $23.6 million in support of the initiative. Unlike Nevada, Arizona’s largest electric retail provider, Arizona Public Service (APS), opposes the initiative. Pinnacle West, the parent of APS, has spearheaded fundraising of $31.2 million in opposition.

Opposition of the public utilities has made a significant difference. A late-September poll shows 33.6% of voters in favor of the Prop 127, and 46.6% opposed.

What is happening in other states?
At least 29 states have an RPS in place, and eight additional states have set nonbinding renewable energy “goals,” according to the National Conference of State Legislatures. The most progressive RPS levels in the country:

Hawaii: 100% by 2045
California: 100% by 2045
Vermont: 75% by 2032
New Jersey, New York, Oregon: 50% by 2030

If the Arizona and Nevada initiatives pass, it will bring them up to the top tier of states.

Besides being a small step toward reducing the nation’s carbon footprint, the pair of ballot measures will test the extent to which states are willing to buck the Trump administration to prop up cleaner energy. If either or both passes, it is more likely we will see similar measures in 202o.

What is Montana doing?
In 2005, Montana passed a law that requires public utilities and competitive electricity suppliers with more than 50 customers to obtain 5% of their retail sales from renewables by 2015 and maintain the percentage each year thereafter. Montana has an RPS requirement of 15% by 2015, which must be maintained each year after that.

In 2005 this was a progressive standard, but there is little likelihood that the Legislature will update it in 2019. It will be up to voters to push a more progressive standard in 2020.

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Lessons from other states: Washington carbon fee initiative

Washington has been trying to pass a carbon tax for the last decade without success. But this year, as unhappiness with Trump’s anti-environment agenda grows, it looks like the state may succeed.

Initiative 1631 is on the November ballot. It would impose a starting fee of $15 per ton on carbon emissions, beginning in 2020, with 70 percent of the money raised invested in clean energy. If it passes, Washington will make history, becoming not only the first state in the union to adopt a carbon tax, but also the first government anywhere to do so by ballot referendum.

But passage is far from certain. Washington voters rejected a carbon tax the last time one appeared on the ballot, in November 2016, largely because the environmental community did not unanimously support it. This time around environmentalists are unified, but oil and gas companies—including Phillips 66, Chevron, BP, and Shell—have collectively donated $25 million to defeat the initiative.

clean-power-planWhy a carbon tax?
A carbon tax is a critical first step in dealing with the societal costs of climate change. It recognizes that climate change impacts — extreme weather events, sea level rise, droughts, and so on — must be considered as a cost of fossil fuel extraction, and should be factored into the price.

Today the price of energy from fossil fuels (coal, oil, gas) is determined by market forces.  Oil prices, for example, are set by commodities traders, who bid on oil futures contracts in the commodities market. These contracts are agreements to buy or sell oil at a specific date in the future for an agreed-upon price.

Very simplistically, the primary factors that commodities traders use to develop their bids are:

  • The current supply of oil, based on OPEC quotes, and, increasingly, US shale oil production.
  • The amount of oil reserves held in refineries, in the US strategic oil reserve, or in Saudi Arabia.
  • Oil demand from markets around the world.

However, there is an additional cost of fossil fuels that is not factored into the price. It is the societal cost of releasing carbon into the atmosphere as a byproduct of fossil fuel production. This contributes to global warming, which has significant societal cost (extreme weather, drought, agricultural disruption, sea level rise, and so on).

In economic terms, this cost is called a “negative externality,” a cost that is suffered by a third party as a result of an economic transaction. Society suffers because of the purchase of fossil fuels.

A carbon tax is one mechanism that would price the externality of carbon emissions to make the price of fossil fuels an accurate reflection of all costs. If set correctly, a carbon tax will decrease fossil fuel usage and cause consumers to seek other sources of energy.

Initiative 1631 specifics
Initiative 1631 requires major polluters like fossil-fuel companies to pay $15 for every ton of carbon dioxide they release into the atmosphere. The state estimates that this levy would generate roughly $2.2 billion in its first five years.

Initiative 1631 has attracted a broad coalition of support. Photo courtesy Yes on 1631.

These revenues would then be invested into a new fund to support projects that would accelerate the state’s transition away from fossil fuels, like public-transit development, energy-efficiency upgrades, and new wind- and solar-power plants.The fund would support other kinds of projects, as well. One-quarter of its revenue must be spent to protect forests and streams in the state. One-twentieth must directly flow to communities that stand to be hurt by either climate change or the transition away from fossil fuels, such a Centralia, which has the state’s only coal-fired power plant.

Initiative 1631 would take effect in 2020. For the next decade and a half, its starting fee of $15 would increase by $2 every year, plus inflation. In 2035, when the fee is projected to hit $55 a ton, state lawmakers could either freeze it in perpetuity or vote to continue its steady increase.

Why it matters
Although carbon taxes are not unique — about 20% of fossil fuel production in the world is taxed, a carbon fee enacted by voter initiative is unique. California has a cap and trade system passed by the state legislature, and Canada will implement a national tax of $38/ton in 2022.

If this initiative passes, expect many other states to follow this path in subsequent elections. Montana will not be one of them, until voters throw out legislators who are trying to prop up dying fossil fuel industries instead of looking to the future.

In a poll conducted October 5-9, 50% favored Initiative 1631, 36% opposed, and 14% were undecided.

We’ll report back after the election.

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November ballot measures in other states

Yesterday we looked at battle between the oil and gas industry and communities in Colorado. Today we’ll look at fracking-related ballot measures in other states.

Florida
Amendment 9 places two constitutional amendments on the ballot. It would prohibit “drilling, either for exploration or extraction, of oil or gas on all lands beneath state waters,” which would encompass offshore fracking. State-owned waters extend from the mean high water line to the state’s outermost territorial boundaries. For some reason, this is bundled with a second amendment that would ban vaping indoors.

Trump’s EO opens 120 million acres on the Continental Shelf to drilling. Amendment 9 would prohibit drilling in waters off the Florida coast.

Background. In December 2016 President Obama issued a moratorium on all new oil and gas drilling in 120 million acres in the Arctic and Atlantic oceans. Then, in April 2017, President Trump signed an executive order directing the Department of the Interior to revise the Obama administration’s 2017-2022 leasing plan for offshore oil and gas drilling in the Arctic, Atlantic, and Pacific oceans, which lifted the moratorium. “Renewed offshore energy production will reduce the cost of energy, create countless new jobs, and make America more secure and far more energy independent,” Trump said at the signing ceremony.

In January of this year, Interior Secretary Zinke announced a draft program to make over 90 percent of the total U.S. Outer Continental Shelf acreage available to oil and gas exploration and development. The proposal included 47 potential lease sales, with 12 in the Gulf of Mexico and nine in the Atlantic Ocean. According to Zinke, the plan included the “largest number of lease sales ever proposed.”

Zinke exempted Florida from the draft program to open parts of the Gulf of Mexico and the Atlantic Ocean to oil and gas exploration based on Florida Governor Rick Scott’s request, but said that a final decision had not been made and a final proposal would be released this fall.

Amendment 9 would close off the opportunity for future offshore drilling.

California
Measure G in San Luis Obispo County, just north of Santa Barbara, would prohibit “new petroleum extraction, and all well stimulation treatments, including fracking and acid well stimulation, on all lands within the unincorporated area of the county.” This would include not only new extraction, but expansion of current sites.

The activist group Protect San Luis Obispo County collected over 20,000 signatures to put the measure on the ballot.

Not on the ballot
Measures in Michigan and Ohio did not make the ballot.

The Michigan Fracking Ban Initiative would have banned the use of horizontal fracking and prohibited the production, storage, disposal, and processing of fracking waste in the state. Proponents did not reach the required 315,000 signatures to be on the ballot.

In Ohio, the state Supreme Court ruled that a measure meant to ban fracking in Columbus, Ohio was illegal and could not appear on the November ballot. The court reasoned that state law specifically reserves the right to regulate oil and gas activity. The measure would have prohibited drilling within the city.

Update 11/2/2018: A reader in Youngstown, Ohio points out that there is a municipal charter amendment on the ballot in that city. The amendment would recognize community rights to safe drinking water and a healthy environment, and establish a community “bill of rights.” The ordinance would effectively block new drilling for oil and gas.

We’ll report back on what happened after the election.

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Lessons from other states: Colorado

Sometimes it’s worth checking in on other oil and gas producing states to see what trends may eventually bring political change to Montana. Today we’ll look at Colorado, where conflict over oil and gas development is front and center on the November ballot.

Colorado background
Colorado is a huge oil and gas producing state. It ranks fourth in the US in natural gas production behind Texas, Pennsylvania, and Oklahoma, and  seventh in crude oil production behind Texas, North Dakota, California, Alaska, Oklahoma, and New Mexico. It dwarfs Montana in production. Gas production is 40 times larger than Montana’s, and oil production is five times larger.

Over time, Colorado production has migrated from the sparsely populated Western Slope of Colorado to the rich Wattenberg Gas Field on Colorado’s Front Range, a much more heavily populated area near Denver. As production has moved to densely populated areas, there has been a predictable clash between the oil and gas industry and those concerned about the quality of water, air, and public health.

As this has occurred, Colorado has tried to adopt more balance in regulation than we see in Montana, where regulation heavily favors the oil and gas industry. A couple of examples:

  • Colorado requires a minimum 500 foot setback from occupied buildings, which extends to 1000 feet from high density buildings like schools and hospitals. Montana has no minimum setback rules.
  • Colorado has relatively strict rules requiring oil and gas companies to publicly disclose the chemical composition of fluids used in fracking. Disclosure includes the volume of water used, the chemicals used and their concentrations. Within 60 days of drilling, all chemicals must be posted on the fracfocus.com web site. Montana’s Board of Oil and Gas is currently revising the state’s chemical disclosure rules, but the final rules will be a far cry from Colorado’s in terms of transparency.

Colorado’s more stringent rules have not satisfied the public however. Voters in Wattenberg Field cities Longmont and Fort Collins passed fracking bans several years ago, but the state supreme court ruled these bans unconstitutional.

A large new drilling operation sits near the Denver and Front Range Landfills close to housing subdivisions on June 7, 2017 in Erie. Some neighbors don t
A gas well looms over homes in Erie, Colorado, along the Front Range. A titanic clash between oil and gas interests and local communities is on the November ballot in Colorado. (Helen H. Richardson/The Denver Post)

Two competing ballot initiatives
On November 6, this conflict will reach a head as voters will decide on two opposing oil and gas measures, Proposition 112 and Amendment 74. Both could have major conflicting implications on future oil and gas development in the state.

Proposition 112 would establish a minimum setback of 2,500 feet between wellheads and homes, schools, hospitals, and “vulnerable areas,” such as school playgrounds.

The oil and gas industry has attacked Proposition 112 with the full fury of an industry that claims the measure will cut 80% of the state’s future energy development on nonfederal lands, causing 150,000 job losses statewide, and decreasing tax revenues by $1 billion. These figures need to be taken with a huge grain of salt, because they fail to take into account advanced horizontal drilling technology, which enables drilling from as far away as a mile from a target, and they include workers who would allegedly lose their jobs because of a shortfall in state revenue. Proponents of Proposition 112 believe the measure is necessary to protect the health and safety of residents in the Front Range Area where the population is booming and the industry continues to grow.

To date the industry is outspending advocates of Proposition 112 by 20-1. The industry has contributed $19.4 million; proponents have raised $945,985. This is typical of this kind of ballot initiative, and in many places they have prevailed even when the industry has far outspent advocates. In 2014 in San Benito, California, a fracking ban passed 57%-43% even though the industry outspent local advocates 15-1.

The competing initiative is Amendment 74, which would amend the Colorado Constitution’s to read: “Private property shall not be taken or damaged, or reduced in fair market value by government law or regulation for public or private use, without just compensation.”

The oil and gas industry is attempting to use this language all over the country to thwart  voter-imposed oil and gas regulation. The industry doesn’t try to hide it. Chad Vorthmann, Amendment 74’s sponsor and Vice President of Colorado Farm Bureau, says the measure is about “protecting Colorado’s farmers and ranchers from extremist attempts to enforce random setback requirements for oil and natural gas development . . . and strip away Colorado landowners’ right to use their land the way they wish.”

In practice, what these “takings” initiatives do is invite a flood of lawsuits and bankrupt small municipalities. Because oil and gas rights are private property, local governments will be paralyzed if it passes. If they reject oil and gas developments they could face takings claims from mineral owners. But if the government approves the development, it could be faced with a takings claim from property owners. It would be a full employment act for attorneys.

The worst case scenario for Colorado would be if both initiatives pass. Proposition 112 would invite legal challenges under Amendment 74. Eric Sondermann, and independent political analyst, calls Amendment 74 an “insurance policy” against Proposition 112.

Stay tuned. We’ll let you know what happens.

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Last chance for your voice to be heard on chemical disclosure; email comments due to Board of Oil and Gas today by 5pm

This is not a time to sit back and let others take action. The Montana Board of Oil and Gas Conservation (BOGC) is about to pass a rule on the advance disclosure of the chemicals used in fracking. This rule trades the rights of landowners for the rights of oil and gas companies. It’s a bad trade, and only your voice can make a difference at this point.

To make a comment, send an email to mtogpub@mt.gov. Reference Hydraulic Fracturing Rulemaking in the subject line. The deadline is 5pm today.

Your comment does not have to be long or elegant. Emphasize that the proposed rule is inadequate because it does not require operators to give landowners 45 days notice, which is required to do baseline testing. You might also say that the cost of baseline testing should be paid by oil and gas operators.

Only a deluge of support for this position will move the board. Please take five minutes to do this today.

Here is background information that will help you.

My original post on this topic
My follow up post
Comments from coalition that sued the BOGC
Billings Gazette: Montana Fracking Fluid Disclosure Rule Draws Critics

Report from last Monday’s hearing
The Board Chair was not present but the rest of the Board was there.  Board member Rob Stutz moderated. In total, fifteen people testified and about thirty people were in the audience.  Most of the commenters supported the position that more notice should be given. Alan Olson, head of the Montana Petroleum Association, predictably said he liked the Board’s current revisions and didn’t think anything else needed to be in the rules. He added that landowners could take operators to Court if they wanted additional information.

This Montana Petroleum’s Association tells you all you need to know.

Please comment today.

Cleaning up an oil spill on the Blackfeet Reservation in Montana. Without adequate advance notification it is impossible to protect our water. Photo: Associated Press

 

 

Posted in Community Organization | Tagged , , | 1 Comment

Ryan Zinke, how do you really feel?

They say that a mistake in politics is when a politician says what he really means. Ryan Zinke was the keynote speaker at an oil and gas industry event in Louisiana this week. There’s no recording of his remarks, but the Louisiana Oil and Gas Association tweeted their version of what he said:

“Our government should work for you, the #oilandgas industry.”

No denial from Zinke, and it’s not hard to imagine that’s the way he feels.

If he was working for us, we’d tell him to stop selling off federal land, and stop leasing BLM minerals in sensitive areas.

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Action reminder: Montana Board of Oil and Gas hearing on Monday, September 17

This is a reminder that the Montana Board of Oil and Gas Conservation (BOGC) will be holding a public hearing on its proposed new rules for fracking chemical disclosure. Quite simply, these proposed rules are not strong enough to adequately protect landowners and it is important for you to lend your voice to make sure landowners’ opinions are clearly heard.

You can make your voice heard in either of two ways:

  • The most effective way is always to be there in person. You can do this by attending the BOGC hearing on September 17 at 2pm at 2535 St. Johns Avenue in Billings. Please come if you can.
  • You can also submit written comments via email through September 24 to mtogpub@mt.gov. Reference Hydraulic Fracturing Rulemaking in the subject line.

To get background read my previous post.

My comments
Here are the comments I submitted today. Feel free to borrow as you see fit:

To the Members of the Montana Board of Oil and Gas Conservation:

Please accept the following comments concerning the Board’s proposed revisions to its hydraulic fracturing rules.

As a surface owner in Stillwater County, these rules do not move the needle for me. Like the previous rules, they continue to trade my right to protect my water, land, and property for the oil and gas industry’s convenience. From a surface owner’s point of view, you may as well have made no changes at all.

The reason I want chemical disclosure prior to fracking is so I can perform baseline testing on my water. Without baseline testing I will have no legal recourse if the water is contaminated during fracking.

The legal standard for baseline testing is exacting. It needs to be done by a professionally qualified third party. It must adhere to standards for container origin, integrity, post-sample sealing, labeling, and any required agitation and refrigeration.

If I don’t know the chemicals to be used in fracking at least 45 days in advance, I can’t get that done, plain and simple. This rule does not provide that advance notice. Because of that, it is of no value to me.

Operators could give 45 days notice if they were required to do so. I understand that they feel it is inconvenient.

You apparently have decided that their convenience is more important than my right to protect my property.

I disagree. You can do better.

David Katz
Nye

The Board of Oil and Gas Conservation not acting. Photo: Casey Page, Billings Gazette

Posted in Fracking Information, Shared Letters and Posts | Tagged , , | 1 Comment

Beartooth landowners file motion for summary judgment in zoning lawsuit

Beartooth Front landowners last week filed the critical brief in their lawsuit against the Stillwater County Commissioners. It outlines their argument for why landowners alone, without the approval of minerals owners, should be able to establish a citizen-initiated zoning district. The argument lies at the heart of a central tension in Montana law: the self-determination of landowners to decide what happens on their own property vs. the importance of mineral extraction to the state economy.

Motion for summary judgment
The brief is a request for summary judgment, which asks Judge Jones to rule in favor of the landowners. It is written clearly in language that can be easily understood, and I recommend it to those who want to understand these issues in detail.

If you want to know the details and timeline of the case, I have included links to other posts at the bottom of the page. Here are the basics:

The Beartooth Front Coalition is a group of landowners in southern Stillwater County who are attempting to set up a citizen-initiated zone to regulate future oil and gas activities. Their goal is not to stop drilling, but to make sure it is done in a way that will protect the long-term health of their community. According to Montana law, this requires the signatures of 60% of the real property owners in the proposed zone. The landowners submitted these signatures, the Stillwater County Attorney informed the landowners that they had cleared the hurdle of 60% of the surface real property owners, but then determined, without every notifying the landowners during signature collection, that 60% of the minerals owners were required as well.

The landowners then filed suit to protect their rights.

Sunset on the Stillwater River. The River is the lifeblood of the local community, and landowners seek to preserve its long-term health. Photo by Anne Moses.

If they are successful, the County will be forced to follow the law and hold a hearing on the petition. If the County is successful, the future of citizen-initiated zoning, a basic tenet of Montana law for the last 65 years, will be thrown into chaos.

The landowners’ argument as expressed in the brief is clear and simple:

  • A review of the history of law and zoning in Montana makes it clear that the legislature intended that only surface landowners should participate in land use zoning and not minerals owners.
  • A scheme in which minerals owners are included as potential signatories to a zoning petition is unworkable. This is something the County admits — they have no list of mineral owners with which to validate the petition, and the cost of obtaining such a list would be hundreds of thousands of dollars, an unreasonable hurdle for a group of petitioners.
  • The judge should grant the landowners a writ of mandamus, an order for the County to validate the petition and hold a hearing on the zone as quickly as possible.

Why this is so important
This issue of self-determination dates to the settlement of Montana, and is as old as Stillwater County itself. In fact, Stillwater County has a long tradition of successful efforts of this type, and of effective cooperation between landowners and mineral extraction companies:

  • In 1913, the County was formed when residents of the area voted to form a separate county from parts of Yellowstone, Carbon, and Sweet Grass counties. Before citizen-initiated zoning existed in Montana law, this was a clear statement by local residents that their unique needs required a distinct organizational structure that they controlled.
  • In 1979, when the Stillwater Mine was a joint venture between Chevron and Manville Corporation, local residents formed the first citizen-initiated zone in Stillwater County to make sure that mining was done right, on the community’s terms. The purpose of the zone was almost identical to that of the current proposed zone: “…not to prevent particular activities, but rather to regulate and promote the orderly development of the area. The development of the area shall consider the health, safety, and general welfare of the people of Stillwater County.” It was a good idea then, as it is a good idea now. Read the West Fork Stillwater Planning and Zoning Ordinance.
  • After mining began in 1985, local residents fought hard against the Stillwater Mine to protect the water and local communities directly impacted by mining activities. In 2000, the two sides worked together to negotiate an agreement to extend protections beyond state requirements to protect property, water, and area communities, while allowing platinum and palladium mining to proceed. The contract is legally binding and establishes a process for citizens to regularly meet with company representatives to address and prevent problems related to mining impacts, reclamation, wildlife, and other issues. The Good Neighbor Agreement has protected land with conservation easements, instituted a busing program to vastly reduce traffic on winding valley roads, and provided for independent environmental audits. While relationships have not always been smooth, this agreement is recognized nationally as a model for effective relationships between extraction companies and local communities. Read the Good Neighbor Agreement.

What’s disappointing about all this is that the County is celebrated around the country for our accomplishments, but the current Stillwater County Commissioners have no apparent knowledge of any of this, and are not directly involved in the administration of the Good Neighbor Agreement. They clearly do not understand that self-determination is built into the DNA of the community, and successful partnerships are what we do.

Quite simply, the Commissioners are not doing their jobs. They should be helping their taxpayers, who have decided overwhelmingly to form this zone to protect the long term health of their community. But rather than do their jobs and help us get it done, the Stillwater County Commissioners choose to align themselves with the oil and gas industry. Now it is up to the courts to decide whether they can get away with it.

Next steps
Assuming there are no extensions, the County will have 21 days to respond, and then the landowners will have 14 days to reply. That will put the end of briefings in early October. Our attorney has asked for a hearing on the motion, and we are hopeful that Judge Jones will conduct the hearing and issue a ruling on our motion before the end of the year.

Background information
Beartooth Front Coalition website
Documents relevant to the case
Beartooth Front landownwers present hundreds of signatures to Stillwater County Commissioners to set up oil and gas zoning district (with video)
Do mineral rights have anything to do with citizen initiated zoning in Montana?
Breaking: Beartooth Front landowners file legal action against Stillwater Commissioners
Landowners show up for hearing on Beartooth Front lawsuit
Beartooth Front landowners win first round of lawsuit
Op ed: the Stillwater County Commissioners aren’t doing their jobs

Update, 9/13/2018:
Article in Stillwater County News: Beartooth Front Coalition seeks summary judgment in case against the county, by Mikaela Koski

Posted in Legal | Tagged , , , , | 5 Comments

Action Alert: Your voice needed on new Montana Board of Oil and Gas Conservation chemical disclosure rule

Action Alert
Your help is needed. The Montana Board of Oil and Gas Conservation (BOGC) will be holding a public hearing on its proposed new rules for fracking chemical disclosure. Quite simply, these proposed rules are not strong enough to adequately protect landowners and it is important for you to lend your voice to make sure landowners’ voices are clearly heard.

You can make your voice heard in either of two ways:

  • The most effective way is always to be there in person. You can do this by attending the BOGC hearing on September 17 at 2pm at 2535 St. Johns Avenue in Billings. Please come if you can.
  • You can also submit written comments via email through September 24 to mtogpub@mt.gov. Reference Hydraulic Fracturing Rulemaking in the subject line.

Background
In July 2016 a group of landowners, along with two environmental groups,  asked the Montana Board of Oil and Gas Conservation (BOGC) to change their rules to require chemical disclosure to be part of the application process for drilling a well and the information be made public at least 45 days before fracking occurs. The BOGC rejected the petition in September 2016.

The BOGC’s current rules, put in place in 2011, are effectively useless for landowners trying to protect their water. Oil and gas operators do not have to tell the board or public about the specific chemical ingredients it uses for fracking until after operations are complete. This is not enough information to conduct baseline testing, and even after fracking occurs, the rules let oil and gas companies withold any chemical information operators claim to be a “trade secret.”

By contrast, Wyoming operators have to disclose the specific ingredients of their fracking fluids to a state official before they are approved for use.

In January 2017, the coalition of landowners and environmental groups sued the BOGC, claiming these rules violate the rights of Montanans under the state constitution.

Richmond

Seeing the handwriting on the wall, State Senator Tom Richmond introduced SB 299 in the 2017 legislative session, and the suit was put on hold until after the bill was passed. Richmond is the former Administrator of the BOGC who now carries water for the industry in the Legislature. The bill passed.

The bill was a clear ploy to take the issue out of the courts and water down the rules that landowners need to protect themselves. It gave the BOGC cover to develop rules that prevent disclosure that truly protects landowners, and that is what has happened.

As a matter of personal disclosure, I am one of the plaintiffs in the lawsuit against the BOGC.

The proposed rules
The proposed rules are clearly a step forward from the ones that exist today. Specifically:

  • They no longer allow “generic” chemical disclosures. Oil and gas operators must disclose the specific fracturing fluid ingredients for each proposed well, including the individual chemical ingredient names and unique Chemical Abstract Service (CAS) number.
  • Operators are required to request trade secret exemptions from the Board. They must provide a detailed justification for any request to withhold chemical information from the public on the ground that it is a trade secret.

But these rules are simply not enough to protect landowners, excluding several elements the landowner/environmental group coaltion deemed necessary in their lawsuit:

  • A reasonable requirement for landowners to receive fracking chemical information in advance of the fracking activities. In order to utilize fracking chemical information for baseline water testing, landowners must have access to that information at least 45 days before fracking occurs.  However, the revised Rule does not provide a minimum time period for advance disclosure and allows operators of wildcat wells to disclose their fracking chemicals as little as 48 hours before fracking.

Here’s why this is critical: If water is contaminated during the fracking process, landowners must prove that the poisonous chemicals did not exist in the water before fracking took place. This requires pre-testing for the specific chemicals used. If there is no time to pre-test (which requires a certified lab), landowners are out of luck if contamination occurs.

Further, pre-testing is expensive, and the pre-testing of wells should be something operators pay for, not landowners. It is a cost of doing business.

  • The trade secrets loophole should be closed once and for all.  Operators currently withhold as much as 19% of the chemicals used in fracking as trade secrets, and that number is increasing. This is a result of the “Halliburton Loophole” in our friend Dick Cheney’s Energy Act of 2005. Some companies have already committed to disclosing 100% of their fracking chemicals: Baker Hughes, for example, believes “it is possible to disclose 100 percent of the chemical ingredients we use in hydraulic fracturing fluids without compromising our formulations.” The trade loophole unnecessarily disadvantages landowners.
  • Measures are necessary to get chemical information to medical professionals in an emergency. As proposed, the revised Rule still does not direct the Board to provide trade secret chemical information directly to first responders and other medical professionals who need it to take action in an emergency.  Instead, the Board’s proposal requires medical professionals to track down the oil and gas operator to request chemical information in an emergency. This is ridiculous, and jeopardizes lives.

Leaking storage pit near Lindsey, MT

Suggestions for your comments
Let the BOGC know who you are. If you are a landowner, let them know what your concerns are — protecting your water is probably foremost, along with the potential financial loss if contamination occurs. Speaking from your personal concerns is a way to make your voice most powerful. Some points you might touch on:

  • Advance disclosure to allow for water testing in advance of fracking is essential. I suggest you read my post Report from the water testing seminar in Lewistown. It will provide you with a basic understanding of the intricacies of testing, and the risk if it is not done properly. The proposed rules do not provide sufficient advance notice of the chemicals used in fracking to protect you if contamination occurs, and the potential liabilities are great.
  • Further, the BOGC should address the question of who pays for pre-testing of water, which can be very expensive, often over $1000. This should be a cost of doing business for the oil and gas companies. There is a fundamental inequity if landowners are required to pay to protect themselves from contamination from drilling from which they do not profit. There should not be a divide separating those who can pay from those who can’t.
  • The trade secrets provision is inadequate. The standards for declaring a chemical a trade secret are set forward in MCA 82-10-604. Companies have entire legal departments employed to figure out how to meet standards like this, and there is little reason to think the BOGC will be anything more than a rubber stamp for industry requests. The issue here for landowners is simple — is company’s need for trade secret protection greater than my need to know the chemical risks that exist to my water and property?
  • Emergency first responders need to have immediate access to chemical information to saves lives.

Thanks for lending your voice.

Background
What’s wrong with the Montana Board of Oil and Gas Conservation?
Montana coalition sues BOGC over fracking chemical disclosure
“Changed circumstanes”: Montana Board of Oil and Gas reconsiders rulemaking on fracking chemical disclosure
Report from the water testing seminar in Lewistown

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