Can citizen watchdogs effectively shape shale gas era? Dealing with global reality begins in our back yards

Students work on stream monitoring for Finger Lakes Institute
PHOTO PROVIDED by Hobart William & Smith

With declining government resources to police a growing shale gas industry, can activists armed with cameras and notebooks pick up the slack?

In a series of New York Times Dot Earth posts earlier this month, blogger Andrew Revkin examines the possibility of a Do It Yourself approach to shale gas oversight, using the Web as a primary tool to create “… unparalleled opportunities to foster transparency and awareness, point out best and worst practices and share and shape ideas.” Revkin cites success stories – Fracktrack.org and Skytruth – grass roots sites that have facilitated and informed the shale gas discussion by compiling and distilling relevant industry information by and for D.I.Y.ers. The scope of problems and problem-solving ambitions is broad, but Revkin focuses on methane leaks that are alarmingly visible when using infrared cameras pointed at wells, compressor stations, and other production areas.

The pros and cons of this call to action are expressed in subsequent posts by Walter Hang, an anti-fracking activist in Ithaca New York and owner of a firm that compiles environmental data for governments and engineers, and Frank O’Donnell, a clean-air campaigner in Washington. O’Donnell choses citizen action rather than “endure the long long wait” of a government regulatory revival to curb air emissions. He cites other precedent-setting examples of grass roots environmental oversight, encouraged by the Clean Water Act, including “watershed watchdogs” that spur government to address water pollution; and he raises the possibility that cash awards could be available for the work of volunteers that leads to convictions:

Similar watchdog patrols (“methane monitors?”) could be deployed with some financial incentives under the Clean Air Act. A little-known and, to my knowledge, never used, provision of the Act is designed to spur citizen action.

Hang is less optimistic. The complexity of the task invites quality control problems leading to bad analysis. “Citizen mapping efforts sound good, but they are plagued by serious limitations and spatial errors that advocates gloss over and the public does not know about… Citizens might review data that are mislabeled, mischaracterized, outdated or incomplete. This happens all the time.”

Having some experience with citizen activists, watchdogs, regulators, and industry, I offer my two cents. Spotting problems is one thing. Classing them as violations is another. Enforcing them is still another. For methane leaks, the first two of these three tasks will be somewhat more doable after the Obama administration passed the first federal regs for air emissions related to fracking operations earlier this year. Unsurprisingly, these were watered down in the face of industry resistance, and it will be at least two more years before they go into effect. Even then, expect continued resistance from the industry, as expressed by this quote by an American Petroleum Institute official in a Huffington Post report:

We don't need (the EPA) to come and tell our members we will save you money," said Howard Feldman, the institute's director of regulatory and scientific affairs. "Their business is natural gas. They get it that they are trying to capture as much gas as they can.

There are many compelling case studies of citizens attempting to enforce environmental laws and spur government to action, some of which I document in my book, Under the Surface. I count John Hanger, the former Pennsylvania DEP chief under the Rendell Administration, as a gauge on issues related to the effectiveness of regulatory enforcement of Big Oil. Hanger generally supports shale gas because he sees it as a practical alternative to coal. Yet he has not backed down from fights to hold operators accountable for pollution. Hanger was a main figure in a battle against Cabot Oil & Gas over methane migration that, according to his staff, permanently ruined an aquifer in Susquehanna County. Hanger demanded the company pay for an $11.4 million pipeline to bring fresh water to residents. Cabot fought back, and he ended up with a settlement that gave homeowners systems to treat the pollution in their homes and funds for the long-term maintenance of the devises The settlement cost the company a third of what the pipeline would cost.

Hanger has identified methane migration from abandoned wells as the most pressing problem with shale gas development, yet he also lost the fight for companies to post bonds to cover expenses of plugging and capping wells. This is a task that generally falls to government – or to no one in particular -- when companies go broke, walk away from problems, or the issue of legacy becomes mired in the complexity of multiple parties arguing over undocumented circumstances of past and present accountability.

Regarding active wells, there is an argument that companies are self-motivated to fix methane leaks. It’s simply a matter of good business sense because it prevents product from escaping. If this is true, why hasn’t it happened yet? Answer: because the cost of fixing often outweighs the return on investment, especially if gas remains cheap and plentiful. While some businesses can be counted on to serve public interest even when it runs counter to their bottom line, others cannot. Civic duty is not their charter, nor should we expect it to be. The it’s-good-business-to-be-a good-neighbor principal is applied as a matter of discretion, and many times it’s a public relations calculation. Regulators at the EPA and the Pennsylvania DEP (among other agencies) know through bruising defeats (example here) that enforcing environmental law can be a frustrating and difficult task when the industry digs in its heals. Past experience tells us the industry – by in large -- is ready to resist accountability for methane emissions and methane migration in the same way it is resisting mandates to make the chemicals it uses a matter of public record. (More on that here)

Before we can count on volunteer policing efforts to become a meaningful supplement to enforcement, a fundamental imbalance has to be addressed. It starts with this: The industry is dependent on policy that exempts it from federal laws to identify and track production, handling, and disposal of environmental hazardous. The uncontrolled, undocumented release of gases – in both the ground and the air -- accounts for one of three critical areas of concern. Others involve discharges of waste into the ground and water. For most industries, these discharges are regulated through the federal Resource Conservation and Recovery Act, which provides a cradle-to-grave accounting of toxic substances. The policy became relevant in the late 1970s - the era of the iconic Love Canal disaster caused by unregulated chemical dumping. Discharges are also controlled through the Safe Drinking Water Act, which regulates what can be injected into the ground. Exemptions from these restrictions are critical to the viability of shale gas development because hazardous waste is an expensive thing to dispose of, and because our government, with few exceptions, doesn’t allow the injection of poisonous chemicals into the earth.

In addition to providing operational advantages, the industry’s exemption from hazardous waste laws take care of another potential showstopper for drilling companies – Public Relations. Waste that includes glycols, acids, hydrocarbons, volatile organics, radio nuclides and hundreds of other additives or naturally occurring compounds deemed hazardous when produced by another industry are considered non-hazardous in the eyes of the government when flowing from oil and gas wells. Selling natural gas as a clean alternative would be a much taller order if that pitch were burdened with the PR nightmare of a hazardous waste label – the very thing that doomed the advancement of the nuclear power industry in this country.

The overriding issue, though, is that conforming to these laws would severely limit legal options for waste disposal for an industry that creates a lot of it. To date, shale gas developers have produced more than 1.5 billion gallons of liquid waste from Pennsylvania well fields alone, according to a recent study by researchers at Cornell University and Penn State. And while the paper notes that the industry has increased “reuse and reliance on industrial and on-site treatment,” recycling of shale gas waste remains a process that is unregulated, self-reported, and self-defined. The study, Wastewater Management and Marcellus Shale Gas Development: Trends, Drivers, and Planning Implications, found the state’s records were incomplete and prone to error, with the endpoint of 13.4 percent of waste volumes listed as “undetermined.” (Note. That figure was for 2008. Brian Rahm, one of the authors, noted after this post that "The database has arguably done a better job tracking waste in more recent years although ... there are still a variety of errors, as well as evidence of under-reporting." See Rehm's full response below.)

Meanwhile, the industry will continue to do what it can to discourage or refute independently produced science that suggests the possibility that this unregulated waste can end up in places over the near or long term where it causes harm. I have spoken to various researchers at universities who – proposing studies with their own funds — have been denied access to drill sites to conduct “before” and “after” water tests on their terms, rather than concede to industry stipulations. The EPA ran into similar problems in national study to evaluate the impact of fracking on groundwater. (More on that here) Without the “before” picture, it’s difficult to hold industry accountable for water pollution.

There is good reason for the resistance. Science that could encourage a regulatory crack-down on the oil and gas industry would likely threaten its economic viability, especially if gas prices remain low. This could happen in New York state, where the policy battle for access to world-class gas reserves, featuring both the Marcellus and Utica shales under the Southern portion of the state, has raged for more than four years, under two administrations, without resolution. In the meantime, permitting for shale gas wells remains on hold. The National Resources Defense Council is among an influential contingent of environmental groups looking for stronger regulations if not an outright ban. Specifically, the NRDC is urging Governor Andrew Cuomo’s administration to adopt hazardous waste rules spelled out in RCRA for shale wells operating within the state’s borders. In support of this, the agency has issued a report that includes a list of toxic substances found in samples from drilling wastewater. They include varying concentrations of benzene, toluene, xylene, volatile organic compounds, heavy metals, and radionuclides. The list is itemized in Table 1 of the report, titled “In Fracking’s Wake: New Rules are Needed to Protect Our Health and Environment from Contaminated Wastewater. “ (The report is one of several position papers the NRDC has published that characterize the agency’s regulatory approach to the fracking, including full disclosure of fracking chemicals.)

I’ve heard this strategy called strangulation by regulation, and if successful in New York, it would be a victory for an anti-fracking movement that has flourished under the Empire State’s brand of celebrity-lead activism. But if shale gas development Is to be strangled, the act will require some urgent soul searching and rapid (some would argue unfeasible) practical adjustments by a public that has long enjoyed the benefits of cheap abundant energy without having to look too closely from where it comes.

Where energy comes from is the question of this century, and the on-shore drilling revolution taking place in America’s back yard is forcing us to take a good close look. Anybody eager to ban fracking in New York state, though, owes it to themselves to consider the global picture. John Cronin, Senior Fellow for Environmental Affairs at Pace Academy for Applied Environmental Studies, summed it up neatly in a recent email exchange. (Note, Cronin was responding to a query from Revkin about relying more on coal if Governor Cuomo is to eliminate shale gas and nuclear power production in New York. I find his point provides context for the fracking debate, and post it here with his blessing)

We are privileged to have the available time to debate a risk-free, domestic energy future. And whom do we owe for the breathing space to indulge our ruminations? The developing and war-torn nations to which we outsource the big risk, in return for boatloads of oil.

The energy tradeoff debate cannot be contained by the perimeter of the United States. Every megawatt provided us from out of country causes as much or more harm in those nations as domestic energy production causes at home. Our current energy policy has already made us complicit in and dependent upon significant environmental destruction outside our borders. The short-term campaign to dispatch with traditional energy sources in pursuit of a no-risk, long-term energy future for Americans is directly dependent upon a continuation of, even an increase in, some of the worst environmental problems on the planet, conveniently all in other nations. This is the crime of externalization we like to roll out when fighting domestic polluters -- only writ much larger.

Consider Nigeria, where Americans are a dominant oil customer, importing 40% or more of that nation's petroleum. Hundreds of billions of dollars of environmental damage to the Niger River Delta. Devastating human health consequences. Massive corruption. An unstable, almost bankrupt state government. A life expectancy of 51. Daily wages of $5 - $8. Loss of indigenous industries. Civil unrest. Environmental and political terrorism. Incursions by Al Qaeda. In brief, current American energy policy includes the environmental, political, economic and social destruction of Nigeria.

Call it the Law of Conservation of Risk. For the foreseeable future, we cannot destroy the risk inherent in energy consumption and production. If we eliminate it at home. it simply shows up elsewhere, in most cases in nations where laws are weaker, and citizens subservient to their governments.

Developing a globally sufficient and sustainable energy supply is one of the primary problems of our age, and it extends beyond ecological issues to human rights and environmental justice. And before we can address these problems, we first must be able to see them clearly and then be willing to take a hard look. That starts with buy-in on a grass roots level, whether it is thinking about whether you really need two cars, or that extra stuff you buy this Holiday season, or whether it involves getting out in the field with an infra-red camera to help advance the understanding methane leaks.

During visits to universities to talk about what I’ve learned as a reporter covering shale gas development in New York and Pennsylvania, I’ve been inspired by students and faculty taking D.I.Y. approaches to problems. One example: The Finger Lakes Institute at Hobart William and Smith coordinates outreach programs to enlist high school students to collect water samples in the Seneca Lake watershed – a prospective shale development zone that includes a project to warehouse gas and propane in reclaimed salt mines. Because of the changing dynamics of watersheds and the geographical expanse they tend to cover, tracking water conditions over hill and dale is an ambitious and painstaking job. Yet this is not a function that is likely to be covered by industry or government anytime soon. And without an accurate “before picture” of all the likely points of impact, it will be difficult to document environmental changes related to shale gas development and establish the groundwork for accountability.

Whether from a “neighborhood watch” approach outlined by Revkin, field work by students, or through watchdog journalism, bringing public pressure to bear on flagging problems where government falls short is never a bad idea. But neither is this: Embracing the vision of reformists who champion energy conservation while pushing with all their might against the technical and social inertia keeping this generation from advancing beyond the fossil fuel age. That’s a tall order, especially when accounting for developing countries aspiring to the standard of living and freedoms that U.S. citizens have enjoy for generations, but like D.I.Y. patrols, it’s a start, and it can start in our own back yards.