A 2011 fracking site run by Halliburton.

A 2011 fracking site run by Halliburton.

Over the past decade, new technologies have fueled an oil and gas boom in the U.S., but hydraulic fracturing, or “fracking,” has triggered a backlash in some cities and towns. In November 2014, Denton, Texas banned fracking within its city limits. But this spring, the state passed a law that prevents local communities from banning fracking. And now, Oklahoma has passed a similar law, which the governor could sign today. Supporters of these laws say they ensure landowners aren’t deprived of their property rights. Critics argue they take away a community’s right to protect the health and safety of its citizens. We look at both sides of the debate over state laws that outlaw local bans on fracking.

Guests

  • Hannah Wiseman Professor, Florida State University College of Law
  • Joe Wertz Multi-platform reporter, StateImpact Oklahoma
  • Amy Mall Policy analyst, Natural Resources Defense Council
  • A.J. Ferate Vice president of regulatory affairs, Oklahoma Independent Petroleum Association

Transcript

  • 10:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Two weeks ago, Texas passed a new state law that prevents local communities from banning fracking. Oklahoma had passed the same kind of bill, which the governor could sign into law today. New Mexico, Ohio and Colorado are all considering similar bans.

  • 10:07:18

    MS. DIANE REHMJoining me to talk about what's driving states to pass these laws and how courts and citizens living in these states are responding, Amy Mall of the Natural Resources Defense Council, by phone from Oklahoma City, A.J. Ferate of the Oklahoma Independent Petroleum Association, from Austin, Texas, Hannah Wiseman of Florida State University School of Law and from member station KGOU in Oklahoma City, Joe Wertz of StateImpact Oklahoma.

  • 10:07:58

    MS. DIANE REHMDo join us, questions, comments, 800-433-8850. Send an email to drshow@wamu.org. Follow us on Facebook or send us a tweet. Thank you all for joining us. And Joe Wertz, I'm going to start with you. Tell us what happened in Denton, Texas, seven months ago and how that lead to the bill that Oklahoma Governor Mary Fallin might sign today.

  • 10:08:31

    MR. JOE WERTZWell, thank you so much for having me today, Diane. I'm really excited to be here. So in November last year, November 2014, voters in Denton enacted a citywide ban on fracking within the city limits so it was a voter referendum. They voted in this ban saying you can't frack within the city limits of Denton and Oklahoma took notice of this.

  • 10:08:55

    MR. JOE WERTZDenton, Texas, is only 40 miles away from the Oklahoma border and so Oklahoma lawmakers saw a city and a big oil and gas state that was really close to Oklahoma enacting a fracking ban and simultaneously in Oklahoma, we had a couple cities and communities rewriting their local drilling ordinances. So really, the two things combined together, but really the Denton thing, you know, kicked up the fury here and lawmakers responded.

  • 10:09:26

    MR. JOE WERTZThey filed at least eight bills to preempt these local bans on fracking and they're, you know, the one that ended up on the governor's desk, you know, essentially says to cities, towns, counties, you can't ban fracking or effectively ban fracking or oil and gas activities, such as disposal wells or other production facilities. So, you know, eight bills filed, one's on the governor's desk and she's expected to sign it.

  • 10:09:58

    REHMJoseph Wertz, he's the multiplatform reporter for StateImpact Oklahoma. Hannah Wiseman, let me ask you. Other states are certainly considering laws like the ones they've passed in Texas, Oklahoma. How close are they to passage? How similar are the bills?

  • 10:10:30

    MS. HANNAH WISEMANDiane, thank you for having me on the show.

  • 10:10:32

    REHMSure.

  • 10:10:32

    WISEMANIt's a pleasure to be here. The other states in which their preemption issues, I'd say that the primary concern is with the courts because there are cases winding their way through the courts suggesting that existing laws should be interpreted in a way that preempts local regulation of oil and gas development. So in Colorado, there have been some county court cases saying that local bans like those in Longmont, Colorado, are preempted by state law.

  • 10:11:07

    WISEMANThe Ohio Supreme Court has said that local regulation is preempted by state law because any local issues that conflict with state law are not allowed. So I'd say we should also be looking at the courts here as we're investigating where state laws will go because industry and others are able to use existing legislation to suggest preemption.

  • 10:11:33

    REHMAnd to you, A.J. Ferate, what's your reaction to the laws? Are they actually in the best interest of residents in those states?

  • 10:11:50

    MR. A.J. FERATELet me go a little bit deeper to start off with this. If we look at the interrelationship between the federal government and the states, there was an independent status that the states had before the Constitution existed so the states actually do have some autonomy and what's called federal dualism, dual federalism, pardon me, that goes along with that.

  • 10:12:11

    MR. A.J. FERATESo the states do have some autonomy in that relationship. That has never existed between the city/state relationships. States are entities within the state and so the state actually does have the authority to make some determinations along this route. Some other things to consider. Do we want localities managing foster care? I think that there are certain things that the state actually should have responsibility and authority over, environmental quality, wildlife conservation.

  • 10:12:42

    MR. A.J. FERATEI think these are all things that actually that the state should handle or maintain on a blanket statewide level, rather than issuing some of these out and having a checkerboard of regulation around the state.

  • 10:12:52

    REHMAll right. And to you, Amy Mall, what's your reaction?

  • 10:12:59

    MS. AMY MALLWell, it's outrageous that the states are trying to take away this local authority from local governments. Zoning has been around for more than 100 years. It's how American communities decide what they want their communities to look like, where things should go in their communities and how best to protect their local quality of life.

  • 10:13:21

    MS. AMY MALLAnd in the instance of oil and gas operations, many of these very intense industrial operations are right in people's back yards right now in areas that were zoned residential or even agricultural. They could be on farmland. We're talking about a 24/7 operation that has thousands of truck trips, trucks going up and down local roads every day, loud noise, lights 24 hours per day, air pollution, threats to water, health and safety issues.

  • 10:13:49

    MS. AMY MALLAnd communities should have the authority to determine where and if that type of activity belongs within their city limits or in certain parts of their cities or counties.

  • 10:14:02

    REHMA.J., what's your reaction to Amy's concerns?

  • 10:14:07

    FERATEWell, certainly, there's nothing in the Oklahoma statute that's being considered that takes away the opportunity for localities to set setbacks. In fact, it actually clarifies their ability to arrange setbacks and noise and odor regulation. So there are actual things that actually clarified locality opportunities in the bill that the governor is likely to sign that they didn't actually have the opportunity to regulate before, there wasn't that clarity there.

  • 10:14:35

    REHMLet me ask you something, A.J. because...

  • 10:14:38

    FERATESure.

  • 10:14:38

    REHM...as I understand it, the new Oklahoma law says if it is "reasonable," it will be allowed. But isn't everybody's definition of reasonable rather different, depending on where you stand?

  • 10:15:01

    FERATEWell, I have no doubt that there are many of those that are on this call with us today would have a different definition of reasonable than I. That said, it's intended to be in the eyes of a judge. You take this to court. The balance, obviously, being that you have to balance the mineral interests, the ownership of those minerals, you know, for those owners that are certainly rights that go along with property rights in this country.

  • 10:15:30

    FERATEAnd so balancing those with the safety concerns or the health concerns of those in the locality are paramount. Obviously, setting a 2,000 foot setback from an oil and gas well is not something that would likely be reasonable. In many localities, that would be a blanket ban of oil and gas drilling. However, if you were to set a 500 foot, that's over -- pardon me, nearly two football fields away, that would probably be a reasonable setback.

  • 10:16:02

    FERATEI don't see why -- and frankly, I don’t think anybody would challenge anything that was set along those lines.

  • 10:16:07

    REHMHannah Wiseman, let me ask you whether since this has already been through some courts, could it actually end up in the Supreme Court for judgment?

  • 10:16:23

    WISEMANYes. The determination of what was reasonable or commercially reasonable could end up going through all of the state courts, from the lowest to the highest, and this could lead to a good deal of litigation. And yes, there could also be challenges to the bill itself, potentially, if it is finalized in terms of whether it unduly impacts the home rule authority of localities. Although it is true that local governments are an arm of the state and they derive their powers from the state, as Amy discussed, there is this historic authority in certain states for local governments to have extensive land use powers.

  • 10:17:01

    WISEMANAnd I think we'll continue to see court challenges asking the extent to which states can preempt what are, in some cases, constitutional home rule provisions that give municipalities extensive zoning and land use authority over development.

  • 10:17:15

    REHMBut in the meantime, would the oil and gas companies be able to proceed with their drilling?

  • 10:17:25

    WISEMANThey would be able to proceed unless a court were to impose some sort of temporary injunction or a stay on the finalized legislation. In the meantime, drilling could go ahead.

  • 10:17:39

    REHMAll right. We'll take a short break here. Hannah Wiseman is professor of law at Florida State University. We're going to take your calls when we come back, 800-433-8850.

  • 10:20:00

    REHMAnd welcome back. We're talking about new state laws in Oklahoma, Texas, other states that are considering allowing fracking, even though local communities have said and voted against such activities. Here's an email from Bill in Florida. He says, when members of a state legislature vote against fracking bans by cities in the state, it's time to ask which oil company is buying those votes in the legislature. Amy Mall, who's behind these bills?

  • 10:20:53

    MALLWell, the only people that will benefit from these bills are the oil and gas industry. That's where the influence in in state legislatures or in state capitols, and communities are very concerned about that because the states haven't done enough to protect their health and safety. That's why communities are taking action.

  • 10:21:15

    REHMBut at the same time, aren't property owners benefitting by the fracking they choose to allow to go on in their communities?

  • 10:21:27

    MALLWhen a property owner, somebody who owns land, also owns the rights to the oil and gas beneath the land, then they may benefit, depending on what's going on in the community and how their lease was written and things like that. But many, many people live in these communities and do not own any of the rights to the oil and gas, and in many cases, they might suffer not only in terms of their health or their quality of life, but they may suffer financially in that their property values may decline when they have oil and gas operations in their areas.

  • 10:21:57

    REHMSo what started this whole process? Why are communities voting this way, to ban oil and gas fracking?

  • 10:22:07

    MALLWell, generally, communities feel that state and federal government have not done enough to strengthen their rules, update their rules and protect families, children from health risks such as dangerous air pollution or threats to their water quality or their safety from trucks on the road and things like that.

  • 10:22:28

    REHMWhat about that, A.J.?

  • 10:22:31

    FERATEWell, I think that obviously, the state does its best to protect, but certainly there are situations, as I mentioned already, and I'm willing to agree that there are health and safety things, such as setbacks and noise and odors, that certainly should be within the city's purview to oversee and review and analyze, and provided that they are reasonable, that they are not intended to restrict oil and gas production, I have no issue with them. In fact, I'd be happy to collaborate and work on them with those individuals in those localities.

  • 10:23:13

    FERATEThat said, I also want to bring up the point, too, that was ignored when we were talking about drilling. You know, only the mineral owner benefits, or only the oil and gas company benefits. Obviously the state benefits. Here in Oklahoma, for example, 27 percent of the state's economy is due to taxes on oil and gas drilling, obviously the employment that comes along with it and the subsequent employment taxes that come along with the production. Those are the sort of things that need to be factored in, as well.

  • 10:23:49

    FERATEI mean, in Oklahoma, the fact is that we thrive as a state as a result of the balance that we attempt to strike between environmental protection and our oil and gas production.

  • 10:24:00

    REHMOkay, and on that point, Joe Wertz, I want to turn to you. Tell us about the latest scientific findings on a link between fracking and earthquakes, most especially in Oklahoma and elsewhere.

  • 10:24:26

    WERTZRight, so really the link is between disposal wells and earthquakes, and disposal wells are wells that are drilled deep into the Earth, and oil and gas companies use these wells to pump waste water from drilling operations into. So when we talk about this earthquake surge and the links to oil and gas activity, we're really talking about these disposal wells. And while fracking has been shown to cause earthquakes itself, really the overwhelming majority of what's going on in Oklahoma and other states tied to oil and gas has to do with disposal wells.

  • 10:25:06

    WERTZBut scientifically, you know, there's - this phenomenon is well understood. We've known about it at least since the '60s and have been studying it. so really there's a scientific consensus that at least some of the earthquakes, especially in Oklahoma, are linked to these disposal wells, and we're seeing them, the scientists say, in other states, Texas, Colorado, Arkansas, places like that.

  • 10:25:41

    WERTZSo really the scientific evidence is pretty universal in suggesting there is a link. You know, there's been about a dozen studies specially here in Oklahoma that have linked - made the link, and we're talking university seismologists, state seismologists, federal seismologists at the U.S. Geological Survey, To really a pretty good cross-section of the experts in the field say there is a link.

  • 10:26:04

    REHMAs I understand it, Amy Mall, from 1978 to 2008, Oklahoma experienced, on average, one to three earthquakes of magnitude three or greater every year. In 2014, am I right in saying it experienced 562 earthquakes?

  • 10:26:35

    MALLI don't have those numbers with me. It sounds right to be me because they have been increasing exponentially. And that, those statistics, get to the heart of the matter, which are many of these areas are places where they really didn't have any earthquake history at all, or very few, as you mentioned. So their building codes don't account for earthquakes. Their disaster preparedness planning doesn't consider earthquakes. And this is another example of where state and federal regulators have fallen down on the job, and it's another example where local governments should be able to take action if they feel they need to, to protect their communities.

  • 10:27:13

    REHMWhat do you think, A.J.?

  • 10:27:14

    FERATELet me say a couple of things. There's a lot of minutia and very broad discussion here, and so let me try to narrow it down a little bit. First of all, there are known to be, globally, five hydraulic fracture jobs that have caused earthquakes. And so the very few that we know around the - that we have confirmed around the globe is a very small handful. Specifically speaking to injection wells, we know within the United States of 12 that we can point to a specific well and say that's the cause right there.

  • 10:27:52

    FERATEThe industry as a whole, this is a completely new phenomenon in Oklahoma. We - or anywhere, really, Oklahoma, Texas. These are new, specific activities that we're really trying to understand and improve, and then our best practices on and determine the best way to go. Experts have already stated several times that shutting off all the wells just is not going to stop the earthquakes, and so the best practice that we can do is determine what is the cause, how do we prevent that in the future.

  • 10:28:28

    FERATEOne of the things that we've obviously known, and was referred to by Joe earlier, a few minutes ago, since the '60s, we have known that if you put fluid in basement rock, in granite, that that has the potential to cause earthquakes. And that's one of the most recent actions that the Corporation Commission here has actually undertaken, is to require all injection wells to pull back from basement rock if they are in it.

  • 10:28:55

    FERATEAnd so we're hoping to see if that has an impact, and we are continuing to take a look at other potential ways to solve this phenomenon if we are found to be significantly linked to it. Now, some are saying we are, but I think that there's still a little bit of a window there to make a determination.

  • 10:29:17

    REHMHannah Wiseman, what about the issue of earthquakes? What do the courts say about these?

  • 10:29:24

    WISEMANThere have been relatively few court cases so far, though there are some nuisance cases regarding the Oklahoma earthquakes in particular. The plaintiffs allege in the case that there was a 5.6 or 5.7 magnitude earthquake correlated with disposal wells that caused rocks from a chimney to fall and injure the people in the house. Now there was a question of whether a state-permitted disposal well could be subject to a nuisance suit, in which the court would determine, despite the state of Oklahoma having approved this injection well, there are damages owed to the people who were injured as a result of the potentially negligent use of the well.

  • 10:30:13

    WISEMANNow there's a similar nuisance suit in Arkansas, where the state has put in place a moratorium on the use of these disposal wells in certain portions of Arkansas, where it is believed the wells will trigger seismicity. But these cases are relatively new because the public has only recently begun to pay more attention to the heightened rate of earthquakes that appears to be associated with these disposal wells.

  • 10:30:41

    REHMI'm also, Hannah, interested in what's happened in New York. They have a fracking bill that has been in place since December of 2013. Do you believe that that's going to be challenged?

  • 10:31:01

    WISEMANThere are concerns from the perspective of state policymakers or local policymakers that when a moratorium on oil and gas development or fracturing is put in place, there will be regulatory takings challenges to those bans or moratoria because the argument is that if a government prevents the development of minerals and prevents the economically valuable development of those minerals, that is an unconstitutional regulatory taking of the property that requires the payment of damages.

  • 10:31:38

    WISEMANAnd again these cases are relatively new. We would have to look to old precedent regarding other bans on industrial practices to see whether these takings cases would proceed. But they certainly are a threat.

  • 10:31:51

    REHMSo the New York law does not go into effect until June 1. The critics are arguing that it could cost the state up to 54,000 in new jobs, and I wonder if it would be overturned on those grounds, as well.

  • 10:32:17

    WISEMANThere are concerns on the impacts on employment, although researchers in New York at Cornell University have suggested that sometimes these employment numbers associated with oil and gas development can be slightly exaggerated. Often they include very indirect jobs, such as will we have increased FedEx or UPS deliveries as a result of certain oil and gas operations, so difficult to really pin down those numbers.

  • 10:32:49

    WISEMANIt would be somewhat challenging to bring a regulatory takings-type case on employment grounds, but I think in the policy arena, there will be challenges to moratoria and bans on the grounds that the state could be increasing employment and is not. Now of course there can be employment in other sectors if the state chooses to enhance renewable energy resources. That would also bring in employment. But when looking at the oil and gas issue independently, there are jobs concerns.

  • 10:33:20

    REHMHannah Wiseman, professor of law at Florida State University, and you're listening to "The Diane Rehm Show." I'm going to open the phones now, phone number is 800-433-8850. First to Jessica in Denton, Texas. You're on the air.

  • 10:33:46

    JESSICAThank you so much for taking my call.

  • 10:33:48

    REHMSure.

  • 10:33:49

    JESSICAI wanted to speak to this batting down of our ban by the state. They talked about, you know, they don't want this patchwork of local municipalities deciding regulation. I think the gentleman who is very - a strong proponent for the oil and gas mentioned you wouldn't want local municipalities doing things like foster care and this and that.

  • 10:34:13

    JESSICAOne of the reasons that Denton came up with this ban on fracking was that we had ordinances on the books to protect the health and safety and well-being of our residents, and the oil and gas industry disregarded that. We told them not to drill within 400 feet, I believe, of homes, and we found them drilling as close as 200 feet. And so the state, rather than upholding our desire to have safety for our residents, decided instead to side with oil and gas and to make sure that they made money.

  • 10:34:47

    JESSICAYou know, there are lots of things that over the course of history have been very lucrative, that have made lots of money for those who are involved. But we found out later that they were morally or ethically wrong or that they were dangerous to the societies, and I just think it's wrong for the states to value the bottom line over the health of its residents. It's very frustrating. Even our local congresswoman, our state congresswoman, Myra Crownover, she's elected from Denton, and she voted against us to side with the state.

  • 10:35:16

    REHMJoe Wertz, how much of an outcry has there been from residents like Jessica?

  • 10:35:28

    WERTZWell, what Jessica in Denton, what sort of the perspective she expresses, is something we've heard a lot in Oklahoma. I - you know, people are frustrated, and they really see their local government, their city council, you know, their town council, as the best, most accessible way for them to have a meaningful say in what goes on around them.

  • 10:35:55

    WERTZAnd you've seen a lot of interest in the public, and probably a lot of the interest in Oklahoma has been pulled along by the earthquakes we've been feeling, but there's been a lot of interest among people in Oklahoma, everyday Oklahomans, to have a say in these types of things. And they really feel like their voices aren't heard at the state capital, and they really feel like, you know, even if they do get a conversation with the representatives, they don't feel like there's action taken, they don't feel like they really have a role in that.

  • 10:36:31

    WERTZSo they do want to talk to their city councils. They do want to, you know, have a say, an input, and I don't think it's 100 percent of everybody but certainly a big percentage of the people we talk to. There are certainly - you know, A.J. from the OIPA is correct. The oil and gas industry is a big deal in Oklahoma, and it employs a lot of people. So you definitely do get people that are everyday Oklahomans that side with the oil and gas industry.

  • 10:36:58

    WERTZBut you really have seen a groundswell of interest from everyday Oklahomans in wanting to go to their city council and have a say on this stuff.

  • 10:37:06

    REHMJoe Wertz, he is multi-platform reporter for StateImpact Oklahoma. Short break here. When we come back, more of your calls, your email. I look forward to speaking with you.

  • 10:40:02

    REHMAnd we've got lots of callers. Our next one from Dallas, Texas. Hi there, Chip. You're on the air.

  • 10:40:12

    CHIPHi. Good morning. Thank you very much for taking my call.

  • 10:40:14

    REHMCertainly.

  • 10:40:16

    CHIPI work for a pipeline company and I know the land owners don't necessarily have the mineral rights, but they are compensated for us gaining access to their properties. We've gone as far as re-gravelling roads, installing gates, fixing fences, whatever it takes to make sure that the landowners are happy. And when we leave, we try to leave it in better shape than it was before we got there. It just seems kind of odd that the landowners as a whole, have got no problem cashing the royalty checks and the monthly installments from the oil company.

  • 10:41:00

    CHIPBut when the oil company actually wants to have access to their products, by fracking or by running a pipeline or whatever, they want to start complaining. If lady in Denton, Jesse or whatever, if they really are encroaching on the accepted distance, then that producer gets fined. That producer has to pay a penalty for not abiding by the rules. There's regulations in place to keep all this as safe as possible.

  • 10:41:34

    REHMAll right, Chip. Let me just read an email we got earlier in the program. This one from Steven, who says, I'm from Denton, Texas, where last November, we banned fracking through a general vote. We did so because all other efforts to regulate the industry have failed in our city. We were extremely concerned about the health of our children. For context, a 50-year-old park had a natural gas well put in across the street. Behind that park are even older neighborhoods, yet our city was unable to stop the well being built. How often does that happen, Joe Wertz?

  • 10:42:37

    WERTZHow often does it happen that there are natural gas seeps or that there's this activity close to people?

  • 10:42:43

    REHMClose by. Exactly.

  • 10:42:46

    WERTZWell, all the time. The oil and gas industry in Oklahoma and Texas and oil and gas states is really a part of life. We've got a working oil and gas well on the state capital here in Oklahoma. I grew up here. There was an oil and gas well behind my house. I talk to people all the time. There's oil wells in school parking lots and parking lots of shopping centers and behind schools. I mean, it's a part of everyday life here. I mean, the proximity that people -- the proximity of oil and gas to peoples' everyday lives here in Oklahoma, I mean, people are really close to this stuff, and...

  • 10:43:25

    REHMAll right, Amy, what do you think of that?

  • 10:43:27

    MALLWell, there is a difference between the type of fracking and oil and gas development that's happening today and the type that happened, say, 50 years ago. This is a much more intense, industrial process. We're concerned about the old wells also, because they have their own problems, but the new wells have lots of chemicals, dangerous chemicals, toxic waste. There are these 24/7, massive industrial operations right in residential areas. And so, A.J. had mentioned setbacks, which means the distance from a well to a house.

  • 10:43:57

    MALLBut in most cases, it's way too small to really protect the health and safety of the individuals living in homes. Or say, children going to school. And this is why you're seeing communities around the country try to take action, because they feel that they're not being protected. And that's why communities are updating their zoning rules, because the industry has changed over time and the regulations need to change along with that.

  • 10:44:21

    REHMAll right, let's go to Jeff in Longmont, Colorado. You're on the air.

  • 10:44:29

    JEFFGood morning, Diane.

  • 10:44:31

    REHMHi.

  • 10:44:31

    JEFFSo, that was a great question. How often does that happen? That happens all the time. I own a home in Longmont on the western edge of the Wattenberg Shell Reserve. Just to the east of me in Weld County, there's over 26,000 wells. The oil and gas, Colorado oil and gas commission, who's supposed to regulate this, is chalked full of industry people, you know, there's no one on that commission that has not or does not now currently work for the oil companies. They're supposed to be, you know, neutral organization, and they are neutral organization like, like dolphins don't swim in water.

  • 10:45:20

    JEFFAnd I'm so tired of hearing all these poor oil and gas companies. They're not employing a ton of people. The jobs are there and then the jobs go away. You know, the job figures are so overinflated, it's bust or boom. It has been. In 1980, it was bust and it will be bust again, but 26,000 plus wells. That's not enough. I mean, when does the greed stop?

  • 10:45:49

    REHMA.J.

  • 10:45:51

    FERATEDon't know that I can comment specifically to his emotional concerns there, but what I suppose that I will address is a couple of things that I've heard throughout. Yes, if someone is putting a well 200 feet away from a home and the setback is 400 feet, I don't know what the contractual agreement was or anything like that, but that's not appropriate. That's an easy answer to give. You should be at the end of your setback, and if it's in a reasonably set setback, I think that everybody can come to an agreement on that.

  • 10:46:27

    FERATESomebody specifically spoke to a park, or I guess you received an email about a park there in Texas.

  • 10:46:31

    REHMYes. Yes.

  • 10:46:33

    FERATEI don't have all of the circumstances around that, but certainly, I would assume that the state and the city followed all of the setback requirements before that well was placed in the city. I would assume in that city, as well, that actually, it was the city that held the mineral rights if it was underneath a park. So, I don't know that I can, you know, speak specifically to any of these issues without having a lot more details. But the fact of the matter is is that if a reasonable setback is in place, and reasonable regulation is in place, you're gonna have a significant majority.

  • 10:47:12

    FERATEI mean, you're gonna have 99 percent of producers following the rules. Obviously, there's bad actors everywhere, but...

  • 10:47:18

    REHMYou know, A.J., you spoke of Jeff's emotional response. It sounds as though there are an awful lot of people out there who feel very strongly, emotionally, about this and feel not only as though the lives of their children, their neighbors, their friends may be put at risk. And they are not comforted by the kinds of assurances or reassurances that the oil and gas companies are giving. And I think that emotion comes from the passionate feeling of concern. Amy, would you agree?

  • 10:48:12

    MALLAbsolutely. The folks who live in the communities with this oil and gas development, they're really the experts on the ground. They see it every day. They see it at night. They understand what's happening. Many of them have told us they've called state regulators when they've had concerns and they haven't gotten a response. The enforcement is much too weak and so people do get emotional. And I think many of these people try to balance their emotion with the facts and knowledge that they have.

  • 10:48:37

    REHMJeff, our caller in Colorado, also talked about the commission that allowed for these, as he put it, 26,000 wells. Now, is there balance on those commissions? Is there a fair number of members of the community, as well as the oil and gas industry?

  • 10:49:06

    MALLWell, it's going to vary by state. In Colorado, they actually changed the law a little over five years ago, so that the commission did have to be a bit more balanced that it was in the past. And the governor appoints those members, and so it's definitely -- in Colorado, they definitely have updated some of their rules in the past few years, so there's been some improvement, but generally, in states across the country, what we've heard and seen is that the regulators are perceived to be much too friendly to the oil and gas industry. Not strict enough when it comes to enforcing the law or imposing penalties that would actually act as a disincentive for companies to continue to violate the law.

  • 10:49:45

    MALLBecause now the penalties are so weak that companies are willing to violate the law because they just pay a small fine if they pay any fine at all.

  • 10:49:52

    REHMHannah Wiseman, what would you say to that?

  • 10:49:57

    WISEMANIt is an ongoing issue that any type of regulatory agency, be it an oil and gas agency or an environmental agency, works so frequently with the industry that the agency regulates. There's a concern that this back and forth can lead to a type of sympathy of the regulators to the industry and connections that may be too close. And particularly when you have a revolving door relationship when regulators end up going to work for industry or vice versa, there can be concerns that in the policy world are called capture.

  • 10:50:33

    WISEMANThe capture of an agency by the entity it regulates. Now, I agree with Amy that's not always the case. There are protections put in place to attempt to make regulation more open to the public. There are open meetings requirements. There are opportunities for the public to comment on rules. But another problem that Amy brought up is that some of these agencies don't have the legal tools available to them to fully enforce laws, even if they have the will to do so. It is true that the penalties are quite low. In Colorado, many of the penalties for an oil and gas violation range from 500 dollars to 2,000 dollars for a penalty, which is small change for industry.

  • 10:51:18

    REHMAll right. Let's go to Naples, Florida. Richard, you're on the air.

  • 10:51:26

    RICHARDYes, Diane. My question to your panel is somewhat rhetorical. But where do rich people live and what is the demographics of where these wells are located in regards to ownership of the lands?

  • 10:51:43

    REHMAmy, can you respond?

  • 10:51:45

    MALLI think it's a really, really interesting question. One thing that we found is that the communities that are concerned about this are not, for example, just filled with liberals or tree huggers. These are really people across the spectrum, some of them quite conservative, politically, who are concerned about the oil and gas industry. And frequently, people have enough money, they move away. Or, if they have enough money and they have been harmed, they can hire an attorney to sue an oil and gas company. But you do see the people in the higher incomes who are able to do a better job of protecting their families and their children.

  • 10:52:17

    MALLEither by moving or by receiving better compensations from the industries. And you have many people who are lower income who are suffering, either without clean water, depending on oil and gas companies for delivering their water. Or staying in homes where they don't want to live anymore. That's something that we frequently hear is if I could move, I would, but no one will buy my house.

  • 10:52:41

    WERTZLet me chime in, I guess, for a second on that.

  • 10:52:41

    REHMSure.

  • 10:52:42

    WERTZHere in Oklahoma, there are wells everywhere in every community, in every socio-economic status in neighborhoods across the board. You know, there's a very prominent private school here in Oklahoma City. They actually have wells on site painted with the school colors on it. And most schools, across the state, actually do, so I don't know that you can draw any socio-economic issue. And as an attorney, I know plenty of them, and I guarantee that if somebody actually does have a case, there's an attorney out there that will take it without a problem.

  • 10:53:15

    WERTZYou know, whether they get a retainer at the end or they get paid at the end. So, I don't think, necessarily saying that access to justice is a concern is correct. I think that there's definite opportunity for access to justice if you actually do have a valid case.

  • 10:53:31

    REHMAnd you're listening to "The Diane Rehm Show." Here's an email from James in Oklahoma. He says when Mr. Ferate made the statement that there was no reduction in earthquakes when fracking decreased, I'm not certain where he lives. Until the price of oil dropped, we suffered numerous earthquakes at our house weekly. Consistently for the past few years. When the price dropped and drilling decreased, the earthquakes almost disappeared. A.J., do you want to comment?

  • 10:54:18

    FERATEI don't know that he actually captured what I said correctly. That said, unfortunately, even with the price of oil's decline, the earthquakes have continued at their pace. There has been no decline in earthquake activity, unfortunately.

  • 10:54:34

    WERTZDiane, let me jump in a minute here. I, you know, as someone who looks at the earthquake data, pretty much every day, I haven't noticed any precipitous decline in the rate of earthquakes. There are certainly geographic shifts in the patterns and how this has changed. So James might not be feeling earthquakes near his house, but I can assure you that they're still continuing across the state. And that's really one thing that the scientists have a question about is has the domino already tipped, now that these earthquakes have started in Oklahoma?

  • 10:55:05

    WERTZYou know, is the ball already rolling and can some sort of intervention with disposal wells, the type or location of the disposal wells, or the depth, can we effectively reduce the earthquake rate with those interventions or have we already kind of, you know, is, has the domino tipped and are we already kind of in a chain reaction?

  • 10:55:29

    REHMAnd Joe, do you expect the Governor of Oklahoma to sign the bill into law today?

  • 10:55:40

    WERTZI expect she will sign it. I'm not sure she will sign it today, but I think she will -- I think she will sign it and she will sign it relatively soon.

  • 10:55:49

    REHMAnd finally, to you, Hannah, how much court action do you expect in the coming weeks and months?

  • 10:55:58

    WISEMANI think that we'll continue to see court action in Oklahoma regarding the earthquake issue, potentially regarding this new legislation and a number of other states that are continuing to wrestle with this question of the balance of state and local power over oil and gas development and hydraulic fracturing. This, if nothing else, is a boon for attorneys and the courts, perhaps unfortunately.

  • 10:56:26

    REHMWell, it's going to be fascinating to watch what happens as we go forward. I want to thank you all. Hannah Wiseman of Florida State University, School of Law. Amy Mall of the Natural Resources Defense Council, Joe Wertz, multi-platform reporter for State Impact Oklahoma and A.J. Ferate, Vice President of Regulatory Affairs with the Oklahoma Independent Petroleum Association. Thank you all so much and thanks for listening. I'm Diane Rehm.

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