All drilling is heavy industry, and hydraulic fracturing or “fracking” is bigger and rougher. It has devastating impacts on air, water, roads, and quality of life for miles from the drill site. Zoning it to a corner of a municipality is not an effective solution.
Few municipal lawyers or officials have the knowledge or skill to craft zoning that adequately defends local residents against the broad threats presented by fracking. Zoning laws generally require costly court action to enforce. Motivated by hopes of large profits, and largely unconcerned about local impact, the energy industry has the money, the time, and the litigators to prevail in contesting poorly crafted zoning. They have lobbied successfully to exempt their operations from many “inconvenient” federal and state restrictions including major provisions of the Clean Air and Water Acts. Moreover, they continue to aggressively seek legislation to exempt themselves from the liability they otherwise should have for damage they cause to local persons and property.
The Proposed JMZO Drilling Zone Ordinance
Unique in the state, three townships in Bucks County long ago joined together to coordinate their zoning regulations by sharing a common zoning code. They are known as the “jointure” or “JMZO” and include Middlefield, Wrightstown, and Upper Makefield townships. In April 2015 attorneys drafted an amendment to the zoning ordinance to create a designated zone for drilling.
Seeks to Restrict and Regulate
The motivation for this proposal was ostensibly limit future gas and oil drilling to an area presently zoned for quarry operations. In that zone, the ordinance would attempt to confine the noise and disruption to the drilling site. At first glance, this might seem reasonable since the area and the connecting roads already carry heavy gravel trucks. But fracking has permanent and more far-reaching impacts on air, water, health, and life. Operations are 24 hours a day, 7 days a week.
Creating a “sacrifice zone” for drilling is not sufficient protection because fracking puts the entire regional aquifer at risk – many more square miles than the immediate acreage of the site. Fracking also pollutes surface water with chemical runoff and discharge from retaining pond breaches and leaks. It pollutes the air with health impacts that may extend ten miles and further from the drill pad.
The idea that zoning and code enforcement as a way to control the activities of gas and oil drillers is not realistic. It’s at best last resort after Federal and State authorities have failed. Even if the local code enforcement staff were experts, they could only inspect the surface activities intermittently, and react after-the-fact to damage, or violations. The code enforcement process is slow and can involve lengthy delays and expensive litigation. It requires a deep pocket and a stiff spine to go against the industry litigators who know how to play the system to their advantage. A town can’t just send the police chief to shut down the offender and lock up the crew. Some operations would even be dangerous to suspend without a closure process.
Inadequately Drafted Language
The ordinance that was drafted for the jointure townships is simplistic and inadequate. Its language is subjective leaving broad loopholes for self-serving judgment calls on the part of drillers. Phrases like “unless absolutely necessary” leave open to dispute what may or may not be necessary. Obviously it’s in the driller’s interest to find the most expedient and economical actions to be “necessary.” Oil and gas corporate executives hold profit to shareholders as their supreme priority – it’s their fiduciary duty.
The financial responsibility provision of the proposed ordinance is insignificant compared to the economic cost of known risks. In the draft a bond is specified of $50,000 – a trivial sum next to the multi millions of venture capital that are in play. Recent liability cases have ended in several million dollar settlements. The proposed ordinance is not specific about the insurance it stipulates. The term, the amount, and the specific risks covered are left open.
Who Wants Fracking?
Oil and Gas production is obviously profitable for energy companies. Local land owners may be lured by hope of potential windfalls – “mailbox money” that comes without toil. Opportunistic local business owners see quick profit in the boom of transient jobs and retail activity.
No One Has Come Forward in Bucks
Advocates for local fracking have yet to make themselves known. However Turm Oil of Butler, PA has applied for a drilling permit in Nockamixon Township. The public statements of Matt McHugh the attorney that drafted the proposed Jointure ordinance said, “there are no known deposits of natural gas or oil in any of the three townships…”, ignoring the US Coast and Gelogical Survey (USGS) finding that there is a 90% certainty of commercial quantities of gas in the Newark Basin shale that underlies these towns. When it placed a moratorium on drilling in our region in 2012, the Pennsylvania Legislature commissioned a geological study. That study was scheduled to end in June 2015 and we expect results fairly soon. If the study report suggests the presence of shale gas there will be interest in drilling for it.
Local commerce only benefits during the boom months of drilling activity. While drilling and fracking is being done, crews of workers seek temporary lodging wherever they can find it. The shifts are typically 12 hours on and 12 off with days off in weekly intervals. Often crews on complementary schedules will share the same local room, going back to their families on days off. Going to and from work they buy food, cigarettes and other personal supplies at the nearest convenience store, eat and drink at taverns or in their motels. It’s not the sort of commerce most towns seek to foster.
There may be some jobs for locals driving trucks, but not at the drill pad where special skills are required. The jobs there are fast-paced and hazardous and the industry is exempt from many regulations that protect industrial workers elsewhere. Most all of this commerce dries up once the wells are completed.
Leases for Gas and Oil Rights
A fracked well has one or more lateral pipes that extend for 1, 2, or up to 4 miles from the central drilling site. After fracking, gas can be drawn from a fractured zone that extends 1000 feet out into the shale bed from the fracked bore hole in all directions. In the industry, the whole process of a drilling venture is called a “play.” The term is apt because strategy, coordination, stealth, seduction and cunning are involved. The driller is obliged to obtain leases from all the properties that the bore hole passes under, but not necessarily the adjacent properties even though they may contribute gas to the flow. Some leases include the right to utilize surface land, others don’t. The lease documents are complex and differ in terms, so it’s not possible to make sweeping generalizations, but the savvy land owner seeks competent advice before signing. The driller takes as much access as he can get for the lowest cost possible.
Drillers use slick salesmen called “land men” to acquire the leases forming parcels of land large enough to make drilling feasible. They don’t need to get all the land under lease, just a site for the well and for the radial tract(s) so they can extend one or more laterals for fracking. They generally also seek to block competitors from acquiring rights close to their operations.
Once they negotiate and sign, lessors get a signing bonus. Royalty payments, based on production, are at whatever rates the individual lessors agree to accept. Neighbors don’t necessarily get the same compensation or even the same lease agreement.
Royalty payments do not go on forever, but the bore hole is permanent and any unanticipated consequences remain with the land forever.
The Curious Legal Tangle
A series of actions and reactions in the last decade have created a legal tangle. Oil and gas exploration before 2011 was not well regulated, and the abuses resulted in the political will to take legislative action. But the legislation that became law was shaped to benefit the energy industry.
Before PA Act 13
The film “Gasland” evokes images of the water taps of Dimock, PA belching flames. Faulty gas wells there released methane into the aquifer is such quantities that it could be ignited. While energy company litigators fought the claims, negotiated settlements, and secured nondisclosure agreements to silence bad publicity, the affected Dimock residents could not use their well water and were forced to take water from tanker trucks. The value of their property plummeted (see “Property” in Links).
At the state level, politicians saw the Marcellus Shale gas boom as a growth stimulus. Big money was in play. Energy company lobbyists painted a rosy picture of new revenue sources and lavish campaign support. But at the local level it was and is another story.
Fracking is a logistic marvel rivaling complex military movements. The gigantic scale of everything is breath-taking. Large numbers of heavy diesel trucks haul millions of gallons of fresh water to the drill site. In addition there is the traffic in massive machinery, well casings, liquid chemicals, enormous diesel pumpers, and specialized drill rigs. Yet more traffic is created by the movement of cement, gravel, sand, fuel, and personnel needed at the drill sites. These all travel local roads day and night pulverizing road surfaces, delaying traffic, and savaging the peace and quiet of a place. It’s termed “impact” to the community – a politically nicer word than the more apt, “damage”, “devastation,” “wreckage” or “ruination.”
Some towns saw it coming and made haste to update zoning law to bar gas and oil drilling. This posed a major but temporary inconvenience to the energy companies.
The “fix” was Act 13 enacted in 2012. It established an impact fee on drilling that has brought some $600 million of revenue to the state of Pennsylvania through midyear 2015. Of this about 60 percent is allocated to compensate affected towns for the ravages of drilling. It sounds like a lot of money in aggregate, but nobody has yet tallied all of the direct and ongoing costs. The Act 13 impact fee may cover roadwork, but not much else.
Act 13 also gave more power to state regulators, but it completely stripped local municipalities of their power to zone or regulate drilling activity. A gas well could be placed anywhere including a residential zone, near a school, or a church, or even a hospital.
PA Supreme Court
Municipalities fought Act 13’s zoning provision to the PA Supreme Court and prevailed. The right to protect air, water, and the environment for residents was upheld. However they did not win the right to utterly exclude drilling and fracking. The lawyers say that a town that forbids a category of land use invites a legal challenge difficult if not impossible to defend.
Zoning the Menace
All the while Pennsylvania was seeking to foster oil and gas development, New York and Maryland were preparing to totally ban it for health and other reasons. Pennsylvania legislators clearly were prepared to sacrifice the well-being of some locals for the perceived benefits to commerce.
Industry Resists Regulation
Although Act 13 and preexisting law provide for state regulation, the industry resists and subverts regulation. Political maneuvers strip regulatory agencies of the funds to be effective. Ambiguities and loopholes abound and are exploited. Lobbyists are relentless in their efforts to impede any controls that might interfere with their client’s operations.
The industry funded Center for Sustainable Shale Development issued Performance Standards for Shale Gas Development which were quickly panned by the experts who reviewed them:
“Performance standards, by definition, should be written in terms of a specific measurement that can be used to appraise performance. … However, the CSSD Performance Standards are vague and contain broad loopholes and ambiguities ignoring many of the impacts to water, air and community resources. … Across the board the expert reviews conclude that the Performance Standards fail to achieve the goal of ‘safe and sustainable’ development and lack the scientific rigorousness, objectivity, clarity, and technical requirements necessary to support objective integrity.” (Unsafe and Unsustainable – Delaware Riverkeeper Network)
In sum neither the State Government, the Federal Government nor the Gas and Oil Industry itself can or will exercise the integrity, self-restraint or appropriate control to protect municipalities and their residents. As a consequence of these circumstances, it now falls to each municipality to confront the fracking Goliath.
The Risks to Locals
Fracking damages more than infrastructure. Accidents happen releasing toxic stuff into surface water, ground water, and the air. More deliberate skirting and violation of regulations increase environmental impact because it’s easier to beg or buy forgiveness that to do the right thing. Corporate profit motive is the enemy of environmental stewardship.
The market value of a property suffers directly and indirectly when a well site is nearby. The smells of vented and flared fumes, chemicals in open containment ponds, dust from fracking sand, and the diesel exhaust travel in the breeze. The sound of the trucks, compressors, pumps, and machines is unrelenting. The vibration and pounding of the drilling is constant. Few care to live in the neighborhood.
Known and emerging health risk data make buyers, mortgage lenders, and insurance companies shy about real estate affected by fracking. Depending on the surface rights terms, and who gets royalties, the oil and gas lease may be a negative. If the property depends on well water, prices drop 13 percent or more on fear of polluted water alone.
Despite well-intentioned and extraordinary industry engineering precautions to seal off the bore hole from the aquifer for the first 400 feet or more, at least six percent (6%) of new wells leak within 5 years. They can’t tell which ones will leak in advance. For the industry it’s a risk of doing business and potential liabilities get priced into the product. For the municipality it’s a disaster.
Shale gas is mostly methane, but much of it is termed “wet gas” because it carries liquids with it from the wells. These include brine, but more important are the light hydrocarbons. These volatile organic chemicals (VOCs) are toxic, highly flammable, and render the gas unsuitable for domestic use before processing. When methane and VOCs get into the aquifer they are prohibitively costly and technically challenging to remove. So leaks from bore holes are a big deal.
Spills are also a problem. With hundreds of trucks delivering thousands of gallons of chemicals and collecting the flood of waste water that a well makes, spills will happen. Thin waste pond liners get perforated and leak. Fracking itself requires pumping the frack fluid through hoses, pipes and fittings that can break under the extreme pressures (>9,000psi) used. (Savvy workers on site seek shelter in the control shack because the awesome force of the jet spraying from a leak can flay and maim if not kill.)
Run off from the site carries spilled chemical residue into streams. There can be enough residue on the drill worker’s pickups that you smell it at their motels after a rain shower. When contaminated water leaks from one of the open waste water storage ponds, it seeps into ground water. The industry resists calls to do before and after ground water quality monitoring for obvious reasons.
A fracking operation consumes over four million (4 mm) gallons of fresh water, all of which is rendered toxic by the process. If taken in these huge quantities from local sources the demand competes with conventional uses and can result in shortages. Much remains in the shale bed, about 16% can be recovered for reuse, and the rest mixes with the brine the well produces. This “produced” water from the well must be processed and properly disposed of because in addition to fracking chemicals it contains heavy metals (arsenic, lead, etc.) and may have low levels of radioactivity from radon and radium. It’s hard to police and abuses happen.
Boring holes in rock generates debris and mud that can’t just be dumped at the site without contaminating the surface water.
Machinery and truck exhaust introduces harmful particulates and combustion products into the air. While exhaust is endemic to modern life, in the concentration and volume generated around a drill site it’s not to be ignored. The heavy vehicles travel miles over local roads, straining up grades, and roaring downhill with the tommy-gun staccato of “Jake” compression-retarder brakes they use to cut speed.
Open retention ponds allow volatile chemicals to drift with the wind. Flares burn off waste making more combustion products. The off-loading and mixing of chemicals releases smells and the ultra-fine fracking sand raises clouds of toxic silica dust. None of this is healthy or desirable. The methane that’s released is a potent contributor to climate change (20 time worse than CO2 moment to moment and 84 times as bad over the time it persists in the atmosphere before breaking down).
After seven years of study, the State of New York banned fracking earlier this year (2015). Maryland followed soon after. Recently released studies linking low birth weight babies and certain birth defects to drilling continue to reinforce the wisdom of these decisions. Though direct cause and effect may be unproven, the preponderance of evidence confirms the health risks. Children, the elderly, and those in fragile health should not be exposed.
Because the work is dangerous, and the industry has been able to exempt itself from “inconvenient” safety restrictions, worker health is also compromised. The fine silica sand enshrouds the drill site in dust. It lodges in the lungs and leads to illness. VOCs are toxic to breathe and are a natural component of wet gas produced during drilling and fracturing.
Although there was an attempt to investigate and document the health effects of fracking in PA, the health registry that was begun was defunded by politicians in response to industry pressure.
It’s not just the roads that suffer damage. A bore hole remains forever. Even if plugged using the best practices it will never be as good a barrier as the half mile of rock that was penetrated to make it. If 6% of new wells leak, how many century-old derelict wells will contaminate their surroundings? And who will be monitoring?
No Lasting Benefits
A gas well may last only one year, or it may produce for twenty. When it’s dead it gets plugged with cement, perhaps the casing will be cut off below grade so the well pad and surroundings can be reclaimed for other use. But like a rotting cork in a bottle of poison, the well remains forever with it’s potential to leak. The “mailbox money” stops, the jobs are long gone and the toxic waste, the land scarred by temporary roads to well sites, pipeline right of ways, and whatever else the community endured to accommodate fracking remains. The lasting legacy is likely to be bad water, ruined health, and disrupted lives, landowner liability and eyesores.
The Global Risks
In the near term cheap fossil fuels may seem essential to our lifestyle, but we fail to consider the hidden costs. Greenhouse gasses have been insidiously nudging up temperatures in previously cold areas. The polar ice caps are melting, permafrost is thawing. Ocean currents are shifting and that changes weather patterns. Sea levels are rising, tropical storm systems are larger and more frequent. Clean water is growing scarce. Areas once abundantly supplied by snow-melt experience drought. Ancient aquifers are shrinking. It’s a sobering array of facts and it should be a warning.
Since 2007 the technology has existed to supply nearly all our present and future needs from renewable sources. It’s not germane to detail the evidence here. The point is simply that we must wean our economy and our lives from fossil dependence. Everything we love requires it.
Fortunately winds of change are blowing. The price of solar panels has dropped 75% over the last five years. (Fifteen million homes in Bangladesh already have solar power for a cost per month less than the kerosene they used to burn—and with 80,000 new connections a month, their government hopes to have the entire nation on solar by 2020. One small city in Southern France discovered they could generate more than $3 million a year with just a few wind turbines.) (Source: “DEEP ECONOMY” SOUJOURNERS, JULY , 2015)
Bi-partisan national legislation is on the horizon that could allow a predictable, incremental transition from fossil fuels to clean energy sources over a 10-year period. The price of fossil fuels is at all-time lows. Wind, solar and biomass already generate 2.5-9 times as many jobs as coal, oil and gas per $1 million contribution to GDP. Independent studies show that this Carbon Fee and Citizen Dividend legislation would create more and better jobs (2.1 million new jobs), increase GDP by $70-$85 Billion from 2020 on, and save 13,000 lives per year after 10 years due to decreased emissions and improved citizens’ health.
Rotarians for Sustainability are urging the 1.2 million Rotarians around the world to add a 5th Test (“Is It Sustainable?”) to their historic 4-Way Test (“Is it the truth? Is it fair to all concerned? Will it build goodwill and better friendships? Is it beneficial to all concerned?”).
The more natural gas we produce, the cheaper it gets. That discourages sustainable energy production, dampens research and development of new WWS (Water, Wind, and Solar) technology, and accelerates global climate change. It’s the wrong direction and will come to hurt our grandchildren.
Climate Change – a Precipice
Science is scrambling to determine how close we are to triggering an uncontrollable release of methane from the Arctic tundra and oceans. We already see the releases bubbling to the surface of the sea over vast areas. We can detect its concentrations with satellites, and specially equipped aircraft are flying patterns to sniff it out and quantify it precisely. Researchers know that if we reach the tipping point, a vicious cycle will start where the triggered methane releases accelerate warming resulting in a 20 foot sea rise and catastrophic changes in climate globally. It’s a climate precipice and we don’t know how close to the edge we have come.
For today and tomorrow our primary concern is controlling fracking here in Bucks County, PA. But reining in the stampede to maximize shale gas production is imperative for everyone everywhere. The industry can’t help itself. Its leaders are obliged to grow assets and profits in service of their duty to shareholders. It’s up to us. And now is the time to act.
[More to come, this article will be expanded with links, visuals, and added content.]