In a lawsuit filed this week, New York Attorney General Letitia James said a months long investigation into the National Rifle Association found extensive "fraud and abuse" and she's calling for the powerful gun rights organization to be dissolved. Diane talks with Adam Winkler, professor of law at UCLA, about the lawsuit and what comes next.
Each year an estimated 35,000 oil and natural gas wells are processed using hydraulic fracturing, or fracking. More than 15 million people live within a mile of a well that’s been drilled since 2000. The explosive growth in this industry has left scientists struggling to keep up, but research is beginning to mount related to how fracking is affecting the earth. A recent study connected fracking to increased earthquakes in Oklahoma and Stanford scientists are raising new concerns about contaminated drinking water. Please join us to discuss what we know about the environmental effects of fracking.
- Mark Boling President, V+ Development Solutions, a division of Southwestern Energy Company
- Amy Mall Policy analyst, Natural Resources Defense Council
- Abrahm Lustgarten Reporter at ProPublica.
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Hydraulic fracturing, or fracking, has led to a natural gas boom. This has meant an economic windfall for communities throughout the country. But from New York to Colorado to Texas, local governments are attempting to limit or ban the practice due to concerns about health and the environment. Some have said the science is not there to link fracking to problems like water contamination or increased seismic activity. Yet mounting research has begun to outline the risks.
MS. DIANE REHMJoining me to discuss the issue, Mark Boling of V+ Development Solutions and Amy Mall Natural Resources Defense Council. Joining us by phone from Montrose, Colorado, Abrahm Lustgarten of ProPublica. I invite you to join in as well. Give us a call at 800-433-8850. Send an email to firstname.lastname@example.org. Follow us on Facebook or send us a tweet. And welcome to all of you.
MS. AMY MALLThank you very much.
MR. MARK BOLINGThank you, Diane.
MR. ABRAHM LUSTGARTENThanks for having me.
REHMAbrahm, talk about the news lately connecting fracking to earthquakes. What's been happening, for instance, in Oklahoma?
LUSTGARTENThere's been a swarm of earthquakes across Oklahoma, hundreds of quakes over the past couple of months. And scientists are connecting, most likely connecting those earthquakes to the injection of waste from gas drilling, including fracking. The waste injection wells are a place where they inject basically millions of gallons of fluid underground and it weighs a whole lot. And it upsets, scientists believe it upsets the stability underground and can cause faults that exist to move when they wouldn't have otherwise moved.
LUSTGARTENAnd there have been a number of earthquakes, some as high as 5.6.
REHMSome as high as 5.6. How close to urban dwellings?
LUSTGARTENWell, there have been a number of homes that have actually been damaged. I saw pictures of one person's home where the chimney had collapsed. There's other reports of people having cracks in the facades of their buildings. These aren't severe enough that anybody's been hurt, or that, you know, there's been widespread devastation or anything that we might often associate with earthquakes, but they're high frequency and relatively small and seem to be increasing in number.
REHMAmy Mall, how conclusive does this link seem to be between the injection of these millions of gallons of water and earthquakes?
MALLIt's very conclusive at this point. And there's also been links between fracking itself and earthquakes. The US Geological Survey issued a report that found that in the eastern and central United States, there used to be about 20 earthquakes a year, and now, on average, there are more than 100 that are of a magnitude 3.0 or greater. And as Abrahm mentioned, these can cause damage to structures. And there's also potential damage to gas wells, which there's still a lot more science that needs to be done. But at this point, the science does seem conclusive that at least some of these are due to oil and gas activities.
REHMHas the US Geological Survey done its own studies?
MALLIt has. And there are still more studies underway to fully understand everything that's happening. But the GAO, the Government Accountability Office, recently produced a report that said that there are more than two billion gallons of this waste water, a day, that are injected in the United States. So, this is an issue we really need to fully understand.
REHMAnd Mark Boling, I know V+ is a division of the Southwestern Energy Company. How serious do these developers regard these earthquakes? Do you acknowledge the link between fracking and the earthquakes?
BOLINGOkay. Well, first of all, I think it's important to point out, as Abrahm did, that there's a difference between the concern with respect to hydraulically fractured wells as opposed deep injection wells. So far, except for one case over in the UK where there was significant volumes of water in a frack job that was pumped directly into a fault, there haven't been any cases where the hydraulic fracturing has actually caused any seismic activity.
REHMAnd yet, Amy said fracking itself has apparently caused a couple of these earthquakes. Is that correct?
MALLIn the UK, as Mark mentioned. Also in Canada and in Ohio, it's also been determined.
REHMThat fracking itself, not just the injection of water. Go ahead, Mark.
BOLINGWell, I think what is important, when you look at, I would say with respect to the disposal well situation, yes it is possible. But three conditions must exist. And I think it's important to focus on that, because in order to have a triggered seismicity, first you have to have a fault with forces on either sides of the block of that fault that are trying to get it to move. But frictional forces are keeping it in place. And then you have to have a disposal well that is constructed close enough, both vertically and horizontally to that fault so that the fluid pressure, when it's injected, can actually be transmitted to the fault's surface.
BOLINGAnd then the third thing is that the water that is injected in the well is injected at a high enough rate and enough volumes that that fluid pressure is great enough to overcome the frictional forces, and then you will have a fault. You will have movement along the fault.
REHMAnd then the question becomes, how does the fracking company know where the fault lies before it begins the injection of fluid or the fracking job?
BOLINGYes. Well, there's a -- recently, in Texas, they've taken some actions, the Railroad Commission has proposed some rules that would require before injections take place and before approval. This is regulated by the EPA under the UIC regulations. That before an approval would be given that a certain amount of due diligence would be required in the area to see whether or not the area is seismically active. They could do some testing to determine just how much volume of water can be injected.
BOLINGBecause they did an experiment, many, many years ago in Colorado to show that you could actually -- you could actually control the earthquake activity just by increasing or decreasing the amount of water. So that tells you that if you could reduce the rate at which it is pumped, or the volume, you can decrease or eliminate that activity.
LUSTGARTENYeah. Well, first of all, Amy said that there is some scientific certainty around this phenomenon. And I just want to emphasize that it is well known, it's been well documented back to the 1960s, even, that the injection of fluid causes earthquakes. The Department of Energy has established programs to research this phenomenon. They do it in northern California. They have a research site in Las Vegas, or outside of Las Vegas, that also studies the correlation between injection and earthquakes. So that's really well established.
LUSTGARTENBut there's a gap here in oversight, and Mark's kind of eluding to it in talking about new regulations in Texas. Because the risks of seismic activity, they call it induced seismicity, from injection wells is so well established, for other types of injection of waste, besides oil and gas waste, besides fracking waste, there's very careful regulation from the EPA about what sort of geological studies need to done to create a new injection well site. Oil and gas wells, the wells that handle fracking waste, are exempted from that oversight.
LUSTGARTENSo with knowledge that this risk existed, the oil and gas industry has been exempted from having to do the sort of research that Mark's describing, may now become commonplace in Texas. And they did that with the EPA's consent, and the EPA also has really failed to incorporate knowledge of this risk into their regulations. It's something they're starting to look at now, but could have done years ago.
REHMHow did this exemption occur, Amy?
MALLWell, this exemption actually has been around since the 1980s. And Congress exempted the oil and gas industry from our rules that govern hazardous waste as a favor to the industry. And unfortunately, even though the evidence has been mounting since the 1980s, that this waste can be quite toxic and there are many risks, including the seismic risk, Congress has not closed that loophole. And the GAO found, in particular, that it -- when you come to this underground injection, specifically, the rules the EPA has put out haven't been updated since 1980. So EPA could be doing more within the existing law, but Congress really is the one that created this loophole.
REHMAnd Congress is pushing back on this, Abrahm, simply because many of these areas are within their jurisdiction or why?
LUSTGARTENWell, it's a non-starter in Congress right now, as many things are. Virtually off the table. I mean, the reasons besides the general intransigence, politically, is there is a great deal of interest in the economic benefits that oil and gas drilling bring. Separate from oil and gas drilling, there's a great deal of animosity towards the Environmental Protection Agency, towards the idea of regulation and environmental regulations. And when it comes to fracking, I think this is kind of a perfect storm. You have a lot of representatives who are eager for the economic benefits, are not eager for either the optics or the reality of new regulations from the EPA.
LUSTGARTENAnd the result is that there's not going to be a whole lot of Congressionally mandated regulation in the near future.
REHMMark Boling, do you see any need for new regulation?
BOLINGYou know, as long as the regulation is what I call smart regulation, which, to me, smart regulation is just effective risk management. That you adequately assess the risk, identify it, and here we have. We've identified the risk of induced seismicity. And to put this into proper context, however, it's -- I think it's important to know that of the 150,000 permitted UIC wells in the country, we've had issues with a handful of them. Now that doesn't mean, that doesn't dismiss it as not an important issue.
BOLINGBut what it does is it puts it in the right context and indicates why perhaps there haven't been regulations in the past, but they are required to get another look at that now.
REHMMark Boling. He's President of V+ Development Solutions. That's a division of Southwest Energy Company. Short break here. We'll take your calls, your email, when we come back.
REHMAnd in this hour we're focusing on the environmental hazards of fracking. Fracking is going on in many places of the country. Some applaud the increase in the availability of natural gas and even oil, which is now being fracked as well. Here in the studio Amy Mall. She's senior policy analyst for the Natural Resources Defense Council and Mark Boling, president of V+ Development Solutions, a division of Southwestern Energy Company.
REHMJoining us from Montrose, Colo. Abrahm Lustgarten. He's an environmental reporter with ProPublica. There are a couple of different issues. We've talked about earthquakes. It also delves into water contamination. Abrahm, lay out the various concerns we have.
LUSTGARTENSure. And separate them to above- and below-ground risk. Below ground is the least defined and I think, from my research at least, of great concern. The question there is when you inject fluids, fracking fluids or other fluids associated with the drilling, where did it go and can it seep or move into water supplies that are sources of drinking water, underground aquifers.
LUSTGARTENThere's been an emerging series of incidents in which disposal wells have leaked and come back to the surface, which are kind of indicative of the pathways that exist underground for movement to happen. There's been a number of allegations in areas where fracking and drilling happens that seem to imply that there's some kind of contamination happening underground. And there's been a few specific cases where regulators, including the Environmental Protection Agency have jumped in to investigate and have looked closely at the underground risk.
LUSTGARTENAbove ground, there is a large amount of volume including those same fluids which are stored in pits on the surface, which are moved into trucks, moved through pipelines, etcetera. And at each of those points there's a risk of spill or seepage. And the spills also risk getting into water supplies. They do routinely. Colorado, for example, keeps a database so you can go on there -- go online and see that there's thousands of cases in which some sort of drilling activity has resulted in impact to surface water getting into streams which eventually get into drinking water supplies.
REHMAnd Mark, from your point of view, how significant is the, say, below-ground concern?
BOLINGWell, I think that if -- I think the whole issue with protecting underground water resources is getting the well integrity right. And I think one of the problems the industry has had from the very beginning back to the gas land days when we had the vision of the flaming faucets and Mr. Marcum lighting his faucet on fire from his, what I would say was probably a better coal bed methane well than a water well, is you have a problem where we, as an industry, did a very poor job of describing how important well integrity is. All we would say is, we've been doing this for 60 years without a problem, blah, blah, blah. And hydraulic fracturing couldn't possible cause this.
BOLINGWell, the problem is, in the public's mind, hydraulic fracturing is everything. It's when you bring the bulldozers out. That's when you're drilling the well. It's when you're casing the well and cementing it. And what we should've said is fill that void of information and say, well the actual action of completing the well with the hydraulic fracturing treatment is highly unlikely to cause a problem. But if you don't get the cement right, it can cause a problem.
BOLINGAnd, in fact, in northeast Pennsylvania and Ohio and West Virginia, I think there are evidences of -- clear evidence of the fact that the failure of well integrity did result in migration of methane up into shallow water aquifers.
REHMAmy, how do you see it?
MALLWell, there are hundreds of cases around the country where it's been shown that water contamination has been caused by oil and gas activities. And unfortunately, regulators at the state and federal level have not been investigating these cases in a way that will allow us to fully understand what the role of fracking has been in these cases.
REHMWhat do you mean you cannot fully investigate?
MALLWell, they have found the problems and they have often cited companies for contaminating drinking water but they've never fully explained exactly what the role of fracking may have been. There are three cases where EPA at the federal level started investigations where it looks like fracking was a link to the contamination in the drinking water but they've withdrawn from all three of those cases before their investigation was conclusive.
MALLWe don't know why. We just don't know. And state regulators haven't really asked the question specifically what was the role of fracking in each of the cases where drinking water has been contaminated. So it's still an unknown. And until we really understand exactly what's happening underground, we can't really protect against it or reduce the risk as much as we would like to.
MALLThe good news is there is more science coming out from independent sciences at universities. And when I say independent I mean they're free from industry influence. And they have been finding contamination. For example, a Duke study found higher levels of methane in groundwater closer to fracking sites in Pennsylvania. A University of Texas study has found higher levels of arsenic. A University of Missouri study looked at endocrine disrupters which can interfere with hormones.
MALLSo there's a lot more research going on but it's -- and a lot of it's come out in the past year, which is terrific but we're still at the point where we need a lot more science to fully understand exactly what's happening and how best to protect against it.
REHMAbrahm, Mark talked about the construction of the wells and the amount of cement. He also talked about the manner in which information was communicated to the public. Are those two factors that you would deem of great importance, or are there others at work here?
LUSTGARTENNo. Those are -- at least the well construction is a huge factor. You know, what Marc is describing is, you know, you have a well structure that basically pierces the earth. It often runs through sources of drinking water and down into a lower level where oil or gas is produced. And that well structure is supposed to be cased with cement which is basically a shield against contamination. That cement very often cracks or has bubbles or gaps in it. And those have been very commonly identified with leakage of materials, contaminants, methane, chemicals, etcetera.
LUSTGARTENSo when they've contaminated water sources, it's often been because the well itself was not built properly. Now I have some concerns about the effort by the industry to distinguish between fracking and well construction as if they're entirely separate things. And what I found in my reporting is that you might have a well that seems to be constructed properly. But then when it's put under the pressure of thousands of pounds, the force of the fracturing process, it can help those contaminants find new pathways or find those little cracks in that cement casing and so forth that actually can lead to more contamination.
LUSTGARTENThere's a decent amount of knowledge about this within the industry itself. There's a lot of industry reports, engineering reports, some closely held, some that have been published in journals like the Society of Professional Engineers which get at the risks. It's well defined. There are fairly high failures rates.
LUSTGARTENThe problem is, as Amy mentioned, that there is still a dearth of research. There's much more than there was a couple years ago. But it's not enough research being done as to what actually happens if and when, you know, any sort of contaminant leaves that well site. Where does it go? Does it make it into water? Does it make it to the surface? Is it a public health risk and so forth?
BOLINGWell, I guess I have a couple of things to respond to that. One, even in the study that Amy mentioned, the Duke study where it found that there were several instances in which methane was found to migrate into wells, not in any one of those circumstances, even under that worst case scenario, did they ever find any of the hydraulic fracturing fluid also going up into those wells.
BOLINGSo that tells me that there's a certain amount of physics that goes into these wells, including basically just how fluids flow in subsurface media and they go from an area of high pressure to low pressure. And it's just naturally going to be drawn back into the wellbore rather than migrate up some other pathway.
BOLINGThe other thing that I would mention is about four years ago now, four-and-a-half years ago, we started an effort with the environmental defense fund to come up with a model regulatory framework for regulating well integrity issues, etcetera. And it took us a good three-and-a-half years before we had a product.
BOLINGWe have now used that product with EDF to influence changes in regulations in Ohio, Arkansas, Texas, California, etcetera to take some of these special issues that are associated, like Abrahm said, about what happens when you do your hydraulic fracturing job. And have you got the right cement in there so that string will basically breathe and come back rather than have fractures in it. So I think a lot is being done in that regard. And I think a lot of positive things are being done.
REHMAmy, would you agree?
MALLWell, when I mentioned the exemption in our federal law for fracking waste from 1980s, I wanted to clarify that there's also an exemption in our federal environmental laws for fracking itself. In 2005 congress exempted fracking from the Safe Drinking Water Act. So there are no federal protections out there for fracking. And that's why it's fallen to the state level, as Mark mentioned. And the state requirements are just not strong enough.
MALLThere are voluntary guidelines from the industry, even the American Petroleum Institute has its own voluntary guidelines. But until every state requires the absolute best technologies that we know are available, we don't really know how much they will reduce the risk. And so we need these standards to be mandatory and required by state law, not just voluntary. And then we need to study them to understand exactly how much they are able to reduce the risk to drinking water.
REHMWho decides, Abrahm, where fracking can or will take place?
LUSTGARTENWell, in most cases, in almost all cases that I'm aware of, and maybe Mark can clarify, but I think it's the company that's about to do the drilling. In most of the states where I've done reporting, there's not a lot of, if any, regulation of hydraulic fracturing. The regulation often amounts to a notification being submitted to state regulators after the fact so that there is a record that what they call quote unquote "well stimulation" took place on a certain date.
LUSTGARTENBut there isn't necessarily a process in place where the regulator will go out and approve the imminent fracturing of a specific well at a specific location beforehand.
REHMAll right. Here's an email from Luke in Michigan who says, "Don't get me wrong, energy is important and necessary, but water is the source of all life. I really don't understand how we can justify permanently removing billions of gallons of water from the cycle to get some product we burn off once, especially considering all the water shortages across the nation we face. I think food and water are more important than cheap gas," Mark.
BOLINGI don't disagree with that. That's one of the reasons why we, as a company, started our program about a year-and-a-half ago we call ECO, which is Energy Conserving Water. It's our pledge as a company to become neutral in our fresh water use in our operations so that we will analyze on a watershed-by-watershed basis how much fresh water we utilize and make sure that we contribute back into that watershed gallon per gallon the same amount. Because it is not sustainable, in many areas, the amount of water we use.
REHMAnd you're listening to "The Diane Rehm Show." Is that contribution back in sufficient, Amy?
MALLWell, the water issue in terms of how much water the industry is using, especially in areas that are undergoing severe draught right now and especially with the increasing threats to water from climate change is an enormous issue. And Mark's company's pledge sounds like a very good one but unless all companies are doing this and we're really minimizing the use of water, maximizing recycling and reducing water as much as possible, it's just not enough.
REHMHow many companies are in fact doing as you're doing, Mark?
BOLINGI can't speak to that.
REHMA few or many?
BOLINGI don't -- oh, I think there's a lot that realize something has to be done. I don't know that there's many that have gone out and said, hey, we're going to challenge our employees because we have very innovative-thinking people within our industry and within our company that when put a challenge like that to them, they can come up with innovative solutions. And that's what we need, because it is not sustainable.
BOLINGAmy's right. there are areas where there's a significant amount of shale gas resources that unless they figure out a way to get them out without using so much water, they're going to stay there forever.
LUSTGARTENYeah, I just want to add, I mean, this is not just about water quantity used in the process. This is also about the risk of water contamination. And, you know, this is an emerging issue across the country. And it's not just about the oil and gas industry. There is, you know, undocumented, unstudied contamination of underground water resources from a whole host of industries. But the oil and gas industry in particular has -- among the exemptions we've talked about has gotten permission to intentionally pollute more than a thousand aquifers.
LUSTGARTENBy aquifers I mean sources of water underground that would have been designated under federal regulations as potential sources of drinking water that were deemed by the federal government as some point in time between the 1980s and now to be either more useful for the production of energy or not economical to develop for water resources. So they essentially sacrifice them. That means that waste can be pumped into them. That means that fracturing and drilling can happen into them without special consideration or permits or analysis.
LUSTGARTENSo the thinking has been that we don't need this water. But we're starting to see in California for example, faced with an epochal drought, that groundwater sources are increasingly being relied on. Farmers in the central valley of California, for example, are drilling groundwater wells. They're pulling as much groundwater as they can, which leads to a separate set of problems. But often the water that they're pulling is not of good quality, is not of the quality that it should've been.
LUSTGARTENAnd they're quickly going to run into the risk, especially in the southern part of the San Joaquin Valley where there's also a lot of oil drilling, of wanting to draw on underground sources of drinking water or formerly underground sources of drinking water that have since been polluted intentionally by the oil and gas industry.
REHMPolluted intentionally, Amy?
MALLYes, absolutely, legally. And the rules that we have that allow this are just completely out of date and inappropriate for what we know today about our needs for water and how we can protect it. A lot of these, what Abrahm is talking about, are called aquifer exemptions from the Safe Drinking Water Act, and it's still going on today, that the EPA is still considering allowing more pollution of these underground sources of drinking water.
REHMNow, Mark, surely this has got to concern you as a member of the industry. Do you feel you're having any impact on your fellow frackers?
BOLINGMy fellow frackers? Yes. I believe we are because what we hope to be able to get is many people to step up and do what we call is do what's right. And I think there are a lot of other companies that are doing that. And what we want to show is it can be done and others should do it.
REHMMark Boling. He's president of V+, a division of Southwestern Energy Company. Short break then your calls. Stay with us.
REHMAnd welcome back. We're talking about the environmental impact of fracking. Here's an email from Talia who says, thanks for the program. I'm concerned about fracking going on at our National Parks, due to the Halliburton loophole. Can you talk about why this is allowed and where the Clean Air and Water Acts come in to play? Abrahm, can you talk about the Halliburton loophole?
LUSTGARTENYeah, the Halliburton, the so-called Halliburton loophole is the exemption that Amy was referring to earlier. In 2005, Congress passed the Energy Policy Act, and it included a specific clause that essentially said that hydraulic fracturing would not be considered a form of what they call underground injection. And that relates to these injection wells we were talking about earlier. Injection of any sort of substance underground is very carefully regulated to avoid exactly the kinds of risks that we're talking about today.
LUSTGARTENWhen fracturing was defined as not being a part of that process, they essentially were defining it as not injecting fluids for the permanent storage of those fluids underground. It meant that the gas companies would not have to get permits, would not have to do geologic studies of the area where they would inject it. Would not have to avoid underground sources of drinking water in the same way that other injection wells would.
REHMAnd didn't Dick Cheney play a role in that, Amy?
MALLThat's certainly the understanding that was reported at the time.
REHMAll right. And here's a tweet from Benjamin, who says the reason my town of Denton, TX is considering the first outright ban on fracking this November is that 100 percent of the town is exposed while only 40 percent -- sorry, four percent get the money. Amy.
MALLWell, this is an issue that's happening across the country. And right now, fracking is taking place in roughly 30 states, and in most places, the oil and gas industry is not subject to local zoning regulations, because of our legal system. So, unlike other industry that might use toxic chemicals or generate hazardous waste and is subject to zoning, fracking and related oil and gas activities are not. And so it can take place very close to homes and schools, even, in areas that are zoned residential or zoned agricultural.
MALLAnd it can even happen on somebody's own private property, even if they don't want it and they won't benefit financially, if they don't own their own mineral rights. And this is why we're seeing communities across the country who feel that the state and the federal regulations are not strong enough to protect their quality of life, their environment or their health, and they want to be able to either apply zoning regulations to this industry or to ban it outright, where it just doesn't make sense, because it's not safe.
REHMWhat's happened in the state of New York, Mark?
BOLINGWell, the state of New York has been going through a -- what they call the SGIS, which is basically an environmental impact statement process for many, many years. And it basically, I think, there's a lot of political pressure to do nothing until certain activities -- I think they have a health study that's been going on for quite some time. I'm not sure what the status of that is. But I think what's happening in New York is probably -- I mean, it's really not much different than what's been happening in Pennsylvania when the Supreme Court overturned the Act 13 legislation. What's happening in Colorado...
REHMWhat did that do?
BOLINGWell, what Act 13 did was it basically said, hey folks, you need -- you cannot use local zoning ordinances to zone out the activities, hydraulic fracturing activities, and if you want to get some money from this impact fee, et cetera, then you're gonna have to have it as a conditional use and you're gonna have to allow it. And what, I mean, different states have reacted in different ways. Colorado, it was the ballot initiatives. But I think it all stems back to the same basic thing. And that is is it's a very tough pill to swallow for the local citizenry to basically be an afterthought in this whole process.
BOLINGAnd what I mean by that is a lot of the battles with respect to the hydraulic fracturing debate have been waged either at the federal level or the state level when it's the local citizens that are the ones that are being impacted by truck traffic, road damage, compressor noise and that sort of thing. And so it's a natural response, in my opinion.
LUSTGARTENYeah. I couldn't agree more. I mean, there's a fundamental difference between oil and gas drilling as an industry and, you know, other industries. It's been described to me as gas drilling happens on a landscape type scale. It happens in, you know, at relatively small sites that are numerous and can be close together. So collectively, it can impact a very large geographic area. A large pastoral landscape, for example. Rural or urban area. Whereas if another industry were to come in and say open a mine or open a processing facility, that's a very high impact type of facility that happens in a finite location.
LUSTGARTENThat larger industrial proposal would then go through, you know, a zoning process and a local hearing process, and there'd be a lot of opportunity for communities or individuals to collectively voice their concerns and weigh in on the decision about whether or not to allow that process. And a lot of that gets completely circumvented in the drilling process, because, as Mark said, the big regulatory battles have been fought at, usually at the federal level, sometimes at the state level. I don't know whether it's the intention to cut landowners or individual people out of the loop, but it's certainly the result.
LUSTGARTENAnd I think it partly relates to, again, the sheer number of these facilities that it's just, it, collectively, it has made more sense and been a little more practical to negotiate those with state regulators.
REHMAll right. Let's take a call from Tom in Bethel Park, Pennsylvania. You're on the air.
TOMHey. Good morning to you all. Yeah, Amy sort of covered what I was going to say about the Energy Act of 2005 that they passed on July 29th, where, for, at the last moment, they added what they call the Halliburton Act. Which absolved all oil and gas companies of any liabilities resulting from fracking or drilling for oil. So if it's so safe, why do they need a law to protect them?
BOLINGThat's actually not what it did. I think what it said was in terms of how this practice is to be regulated that it was the states that should be taking the charge for doing that and not the federal government. It wasn't to say that you're exempted from any liability associated with hydraulic fracturing. And I think if you were to have a state representative, someone in the state regulatory on your show, they would be actually rather offended by the fact that it seems like the -- it's a foregone conclusion that the federal government somehow cares more about their state environment than they do.
REHMHad there been sites where water contamination has been proven and counties where fracking has taken place have sued the fracking companies and been successful? Amy.
MALLI'm not aware of any county that has sued.
MALLBut individuals have been, because they're not protected adequately by state or federal regulations, and so individuals have had to resort to going out and trying to find a lawyer to represent them when their water's been contaminated. Or they've had other problems, like severe air pollution.
REHMHave there been any successful lawsuits against these companies, Abrahm?
LUSTGARTENYeah. I'm not clear on the specifics, but there was a settlement of a suit in central Texas, just a couple months ago, for something like three and a half million dollars against the drilling company that was sued. And it was the first successful suit of its kind. Really seems to be setting a precedent for industry liability.
REHMAnd was that because of water contamination or something else?
LUSTGARTENI believe that had to do with water contamination by leaking methane.
REHMAll right. And Amy.
MALLWell, I just wanted to add to what Abrahm said that there are many, many lawsuits that are settled out of court and they're private settlements. And generally, the parties have to sign non-disclosure agreements. So, while this may have been the major successful one that actually went to a court decision, there are many where people have received payments from companies because of damages that they've suffered.
REHMAll right. To Frank in Sturgis, Michigan. You're on the air.
FRANKDiane, thank you very much, and I wish for you a long and strong voice.
FRANKYou're welcome. And I am a member of a hunting club in northern lower Michigan. We have 600 acres up there with five gas wells on it. They're shallow well contracts. And the gas company offered us a lump sum of 200 and some thousand dollars to renew our contract so that they could go deep well and frack on our land if they chose to. And we refused, but some of the people in the area up there have, and there is some fracking activity now. And people who have had artesian water wells, which is a naturally producing well, fresh drinking water, bubbles up right out of the ground, are -- and they've been doing that for over 100 years and they're not producing anymore.
FRANKAnd I'd just like to say that there are a lot of problems that raked under the rug here, that our energy companies don't want to pay attention to. And the only way they're going to be stopped is if we fix the election laws. So that our representatives aren't owned by them and they'll pass some laws that the people want.
REHMThanks for your call. Abrahm, the political process.
LUSTGARTENI'm sorry. Say again.
REHMThe political process.
LUSTGARTENThe political process?
LUSTGARTENThe -- it should be no surprise, the oil and gas industry is enormously influential in Washington, in particular. You know, and on the state level. In no small part because they play a very large role in the economies of the local areas where a lot of that drilling is happening. So there is a proportional element, in terms of the role that they play, the benefits that they bring, and so forth. But they also invest very heavily in lobbying. You know, right up there with any other top lobbying industry.
LUSTGARTENAnd they tend to, as we've talked about these exemptions, have their way written into the laws when they happen. And play pretty good defense against new regulations or new laws being written that might affect them.
REHMI guess the question becomes, why has it been so hard to gather solid scientific evidence that would convince not only state legislators, but national legislators that there are problems here. Not only with earthquakes, as we talked about earlier, but with water contamination as well. Amy.
MALLIt's a really excellent question. And the reason why is because of these exemptions in our laws and regulations that have been too weak. If a company has to comply with regulation, they have to submit data proving that they're complying. But if they don't have to comply, then they are submitting data. And unfortunately, that's what's happened with the oil and gas industry over the years, is that we haven't had the rules that require data to be submitted so that we really understand everything that's going on. What the impacts are and how best to protect against them and reduce the risk.
MALLAnd until we have strong regulations in place, we're not going to fully understand the impacts.
REHMAnd you're listening to "The Diane Rehm Show." Mark Boling, talk about the issue of methane leakage and why that issue is so critical.
BOLINGWell, I think it's very critical because we are going through a process right now with the EPA's 111 (d) regulations that are basically saying that we're trying to do something about greenhouse gas emissions from the energy/power sector. And one of the pillars that they're using to do that is dispatching natural gas fired facilities before coal fired facilities. So, the -- and the reason why is because we, generally speaking, have 50 percent -- when you burn natural gas for power, you're generating 50 percent CO2 emissions than you would with coal.
BOLINGNow, then people would say well, that advantage is eroded if you have significant amounts of methane that is leaking from the natural gas supply system. So that's why it's important, because methane is a short lived, climate forcer, but it's potent. It's more potent than CO2, by orders of magnitude.
REHMSo, how much science has been done about how much methane actually leaks out in the fracking process? Abrahm.
LUSTGARTENYeah, the science is coming. There's more than there was a couple of years ago. What we're seeing by studies, through studies from groups like the National Oceanic and Atmospheric Administration -- they're doing flyovers in a couple places, say central Colorado, eastern Utah. They're finding rates of methane leakage from infrastructure in the gas fields that could be double, could be as much as four times what the industry or what the EPA has previously estimated. Could be as high as nine percent, in some cases even higher.
LUSTGARTENThat's a number that, as Mark was kind of hinting at, essentially throws the argument that drilling for natural gas is an improvement in terms of climate change, in terms of our impact in emitting greenhouse gases out the window. So that's something that we're increasingly understanding there's significant leakage, to varying degrees, depending on how old the wells are and where they are. That's gonna need to be addressed.
MALLWell, we're absolutely very, very concerned about the methane leakage and want a much better scientific understanding of exactly what's happening and how we can reduce it. We know there are many ways to reduce methane leakage, but again, they're not mandatory at the state or federal level. And until they are, we can't fully measure exactly what's happening, what the impacts might be on global warming. And that other thing that's important to keep in mind is where there's methane leakage, there can be emissions of other air pollutants that go along with the methane.
REHMAnd the question finally becomes is there any way to make fracking totally safe and totally acceptable to you at the Natural Resources Defense Council? Or to you, Mark, as a member of the industry?
MALLWell, from the perspective of the Natural Resources Defense Council, we don't think it can 100 percent safe. We're talking about very toxic chemicals, very dangerous waste, very complex technical processes, much of which happens deep underground. And there's always going to be an opportunity for problems and crises to happen. What we need to do is understand where it does happen, how best we can reduce the risks. And until we mandate practices that will do that, and measure them, we don't even fully understand.
MALLAnd what we also need to do is make sure anything that's too sensitive, like homes or schools, are completely off limits.
MS. NADIA BILBASSYMark.
BOLINGYes, I don't think you can make any business activity 100 percent safe.
REHMHow about 99?
BOLINGOkay, 99, I'll go with that. But seriously, I think the real question is is can you -- it's all about risk management in any kind of business enterprise. And in order to effectively manage risk, you have to identify those risks and find ways to mitigate, and there are plenty of ways of doing it.
REHMMark Boling. He's President of V+. Amy Mall of the Natural Resources Defense Council. Abrahm Lustgarten of ProPublica. Thank you all so much.
REHMAnd thanks for listening. I'm Diane Rehm.
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