I sometimes speak to Montanans who just don’t like the idea of local control of oil and gas drilling. “Regulation of oil and gas,” they say, “is a matter for state and federal governments. If you get local governments involved, all you get is a confusing mess of rules that contradict each other.”

I always ask them, “How’s that working for you?”

Recent legislative events in Washington and Helena tell you all you need to know about what you get when you expect protection from outside your local community.

Montana legislature fails to enact protections in 2015 session
Last week I reposted a Billings Gazette editorial urging passage of four bills in the Montana legislature:

• Senate Bill 172, requiring oil and gas developers to pay for baseline water tests of groundwater before any development activity starts at a site and after a well is plugged. The bill is critical for landowners to determine the cause, and therefore the liability, for any water contamination that occurs. Current Montana law does not provide sufficient protection.
• Senate Bill 173, revising fees and requiring oil and gas developers to post surety bonds for each well drilled. Current Montana provides insufficient protection to landowners, making it difficult to receive compensation for damages caused by drilling activity..
• Senate Bill 177, preventing oil and gas drilling within 1,000 feet of a home, water well or surface water. Current law gives operators discretion over where to place a permitted well, regardless of how close it is to occupied structures.
• House Bill 253, requiring oil and gas developers to use a “closed-loop system” to reuse and recycle mud fluids in the drilling process as an alternative to creating earthen pits or ponds. The bill aims to reduce the risk of leaking waste fluids by minimizing the volume of fluids used in the process and avoiding the risk of leaking retention ponds. As we’ve seen in the documented record of drillers such as Energy Corporation of America, the use of ponds can cause substantial damage.

The Gazette made a strong argument for passage of these bills, saying

Montanans sure don’t want unnecessary regulation. But clear rules can give a greater measure of certainty to surface and mineral owners. Instead of fearing that gas wells can be drilled in their backyard, homeowners should know that there is a setback requirement. Instead of worrying that development will contaminate their water, farmers ought to be assured of what is in the water before development starts and be able to find out what changes, if any, drilling caused. Ranchers should be able to know that reasonable precautions will be taken to prevent drilling mud from leaking onto their land. And everyone should be confident, that if a problem does occur, the driller who caused the problem will be accountable to fix it.

So, how did landowners do?

• SB172: Tabled in committee
• SB173: Tabled in committee
• SB177: Tabled in committee
• HB253: Hearing February 2; likely tabled. Update 2/11: Tabled in committee

That’s right. Four bills introduced in Helena to protect landowner rights. Four bills DOA.

Update 2/13: A fifth bill, HB243, sponsored by Mary Ann Dunwell of Helena, would have required oil and gas operators to publicly disclose the chemicals that they use in hydraulic fracturing operations, and to provide adjacent landowners with at least 45 days notice that hydraulic fracturing will occur. The 45-day notice provision is important, as it would provide landowners with enough time to conduct baseline water testing.

Like the others, the bill was tabled in committee and is likely dead.

Oil spill, Tioga North Dakota

The federal government follows suit
Well, surely the the federal government will protect landowners, right? Right.

We’ve talked often about the Halliburton Loophole, which exempts oil and gas companies from foundational environmental legislation.

The Safe Drinking Water Act (SDWA) of 1974 was established to protect America’s drinking water. It authorizes the EPA to set national health-based standards for drinking water to protect against both naturally-occurring and man-made contaminants. The EPA, states, and water systems then work together to make sure that these standards are met.

The Energy Policy Act of 2005 exempted hydraulic fracturing from SDWA oversight,  leaving drinking water sources in the 34 oil and gas producing states unprotected from the toxic chemicals used during fracking. Also known as the Halliburton Loophole, this law turns over control of water quality to the oil and gas companies, and this is why they do not have to tell us what chemicals they use in the fracking process.

Last week Senator Kirsten Gillibrand of New York introduced an amendment to the Keystone XL Pipeline bill Approval Act that would, in her words,

“remove the Halliburton loophole from the Safe Drinking Water Act, and finally require gas storage and gas drilling companies to comply with the clean water laws of the United States. Every other energy industry already has to comply with the Safe Drinking Water Act, and this amendment would finally hold the gas industry to the same environmental and public health standards as everyone else.”

This was a clear opportunity for the Senate to do the right thing, and reverse this unnecessary exemption from a forty-year-old environmental safeguard.

The final vote was 63-35 to leave the Halliburton Loophole just the way it is, with Montana Senators Tester and Daines voting with the majority.

We need to change regulations locally
Lucille Ball once said, “If you want something done, ask a busy person to do it.” There are few organizations less busy than the US Senate and the Montana legislature.

Montanans eager to protect themselves from poorly regulated oil and gas drilling need to get busy and create the rules themselves. Take a few minutes to watch this video produced by local residents of Carbon and Stillwater counties last summer. It underscores the need for local regulation to balance the needs of economic growth and landowner rights.

Waiting for Washington and Helena gets us nowhere. It’s time to do it ourselves.