Trespassing case tests driller’s control over leased land Activist banned from parks, schools, stores w/ Cabot lease

Vera Scroggins in front of a drilling rig in Dimock Township
PHOTO JAMES PITARRESI

After being charged with trespassing, anti-fracking Vera Scroggins has been banished from land leased by Cabot Oil & Gas. That’s no small deal. The Texas drilling company has leases on more than 200,000 acres -- nearly 40 percent -- of Susquehanna County where Scroggins lives, including rights to property of friends, neighbors, stores, parks and schools.

The Cabot v. Scroggins trespassing case might have been relegated to a journalistic footnote in a national conflict over shale gas development and high volume hydraulic fracturing. It has long been standing practice (and common sense) for companies to restrict access to operations where crews are using heavy equipment and hazardous chemicals under high pressure to drill wells and fracture bedrock a mile deep in the ground.

Scroggins admittedly crossed into designated work areas on occasion, but there were no signs denoting trespass zones, she said, and her ventures into drilling territory in each case were in good faith to openly ask questions and seek information. (Some background on this in a moment.) The remarkable and possibly groundbreaking aspect of this case, however, is not the charge or the defense, but the resulting preliminary injunction the Susquehanna Court of Common Pleas issued on October 21, 2013. Pending trial of the case this spring, the order forbids Scroggins from setting foot on land owned or leased by Cabot, “including but not limited to” well sites, well pads, and access roads. That language, interpreted by Scroggins lawyer Gerald Kinchy, in effect forbids Scroggins from going to certain school grounds, her auto mechanic of 23 years, many other businesses, the county jail, and homes of dozens of friends, among other places. Doing so puts her at risk of contempt of court. (See the full order, embedded below.)

Cabot’s action raises the broader issue of how much control energy companies have over land they lease. While mineral extraction is their stated intention, many standard leases give companies ill-defined and seemingly limitless discretion over land use. “When drilling companies lease rights to land for mineral extraction,” Kinchy said, “does that mean they have rights to exclude other people from that land, even property owners?”

Apart from the Scroggins case, that question has mostly applied to practical matters of daily extraction operations. A company such as Cabot might own rights to a large tract, but it is generally concerned about gaining or restricting access to active work areas. Conflicts might crop up over where exactly a company might build a pad, access road, or pipeline, and at what inconvenience or loss of land use to the landowner. When that happens, lease language and the respective parties’ appetite and resources for litigation come into play, with the company often in a position of leverage.

The Scroggins case breaks new ground. Issues of practicality (and enforcement) aside, it probes whether a company can legally keep a person from stepping foot on leased land outside of established work zones, including public spaces where others are allowed.

Now for some background. Cabot Oil & Gas operations have drawn numerous violations from the state and much national and international media coverage due to recurring water pollution problems in Dimock Township. The company has been a particular target for critics and activists, including Scroggins, who lives in the neighboring township of Brooklyn. (More about that here.)

In Under the Surface, I describe Scroggins this way:

 … a grandmother, amateur videographer, and advocate for many causes, including home births, home schooling, and no mandated childhood vaccinations. In 2009, she took up the cause as a watchdog against oil and gas operators who began leasing large tracts of northeast Pennsylvania to develop the Marcellus Shale. “We’re extra eyes and ears for the DEP,” she told [a community organizer]. “They don’t have enough workers and we have to pick up the slack.”  

Footage from some of Vera’s vigilante patrols in 2009 shows encounters with roughnecks and pipeline workers, some reacting with amusement or annoyance to the woman with a home video camera showing up at these remote and often inaccessible work sites and peppering them with questions. Some called her “ma’am” and briefly addressed her questions; some directed her to the foreman, who almost always asked her to leave; and some simply ignored her or walked away. These brief encounters typically punctuate long unedited footage of vacuum trucks, excavation equipment, and hay bales. Vera also taped public forums and interviews with residents … recounting their experiences with gas development. These videos she posted online, where they joined a broad and growing collection of depictions of Susquehanna County gas development by other independent media, advocates … and professional news outlets. They generally … presented aspects of drilling that lent themselves to visuals: truck traffic, derricks, flaring, fracking, and heavy machinery cutting swaths through the countryside.

Until the injunction, Vera had intensified her efforts, serving as a tour guide for parties interested in seeing and learning about drilling and fracking from a perspective other than that offered by company tours and commercials. On occasion, she has helped me locate operations in the region (viewable from  public roads.)

Cabot poses a sound argument that those venturing onto work sites without permission pose an annoyance, distraction, and/or safety threat. But Vera’s presence has become iconic of another kind of threat to the company – bad public relations and control over its image. The scope of the injunction against Scroggins invites wonder whether Cabot attorneys who crafted the language were unintentionally imprecise, or whether they are testing a strategy to eliminate their Scroggins PR headache once and for all, while sending a message to other activists.

George Stark, a company spokesman, was unavailable to answer this and other questions.

Court Order 10-22-13 New Date 1 2 14 Next Court Day by Thomas Wilber

From California to NY Islands, fracking questions abound LA forum covers science, regulations, public engagement

With President Obama’s support of shale gas development – encouraging exports while preserving regulatory exemptions – the momentum of an onshore drilling bonanza is growing from a regional to a national story.

High volume hydraulic fracturing as a means to extract oil and gas from shale was discovered and refined in Texas and recently adapted to tap shale basins in Pennsylvania, Ohio, Illinois, Oklahoma, Alabama, Colorado, Arkansas, North Dakota and other places. Drilling is pending in New York and California, both of which sit over world class shale reserves now accessible through fracking. The trend will likely accelerate as Obama encourages plans to use fracking to turn U.S. shale reserves into a global commodity – a move that will raise prices, increase markets and encourage more exploration. At the same time, his EPA has shown a disinclination to interfere with a patchwork of state regulations, some stronger than others, to oversee the industry, or to advocate the repeal of industry exemptions – enacted under Ronald Regan and George W. Bush -- from hazardous waste laws and the Safe Drinking Water Act.

Safeguards to protect the environment and public health are becoming an issue as petroleum development – once carried out mostly in geographically remote areas away from public  view – spreads along massive mantels of shale extending under larger population centers.

As recently reported by Mike Soraghan of Energy Wire, drilling increased 40 percent while spills, blowouts and other mishaps rose 17 percent from 2010 to 2012 in states where comparable data was available. While arriving at these numbers, Soraghan ran into a problem encountered by many journalists seeking to quantify impacts of petroleum production – a scarcity of records and documentation due to lack of standards and enforcement. He reported:

There are no national figures on oil and gas spills or enforcement. But where state records are available, they show agencies pursue fines against oil and gas producers in only a small minority of spill cases. The Wyoming Department of Environmental Quality pursued water quality fines against 10 producers in 2012, records show, as it recorded 204 oil and gas production spills. In Texas, the leading producer of oil and gas, regulators sought enforcement for 2 percent of the 55,000 violations identified by drilling inspectors in the last fiscal year. In Pennsylvania, the heart of the Marcellus Shale gas drilling boom, 2012 records show state regulators levied fines in 13 percent of the cases where inspectors found violations. And in New Mexico, oil and gas regulators haven't issued fines in years.

Some spills are reported and some spills go unreported. There are also unknown numbers that get reported but not in a way that is easily accessible. State agencies rely on industry reports to compile spill data. These files tend to be decentralized and many lack searchable data bases. Through my own research in writing Under the Surface, I found that companies are routinely cited for failing to file reports. It’s something regulators often characterize as minor “paperwork” violations, but it really cuts to the heart of the public disclosure controversy.

In Texas, officials promote a "compliance-based" approach, Soraghan reports. “Commission inspectors place a premium on helping drillers get back into compliance with the rules rather than hitting them with fines.” It’s a regulatory style that regulators defend over a more aggressive "rules-based system," which, they say, will make drilling no safer or more environmentally friendly. Oklahoma has a similar approach. When an inspector followed up on a spill of 300,000 gallons of oil and wastewater into pastureland, he logged this: "Reinspected spill area. Found spill has been cleaned up. Looks OK. Please close incident. No further action anticipated."

States such as California, which sit over relatively unexplored reserves, are still waking up to local, regional and global implications of oil and gas development in the shale era. The Monterey Shale extends under some 1,750 square miles of California. Fracking is suddenly a hot topic in the state with an identity historically tied to both resource extraction and environmental protection. (While many shale gas plays are booming, there is controversy over the yet-to-be-proven viability of the Monterey, as seen in this AAPG critique.)

This week I’ll be at a conference at UCLA dedicated to improving the public knowledge base on the science and policy of shale gas development, and its social ramifications. It’s a pressing topic as the nation experiences a drilling boom that has gone from offshore to onshore, with a proportionate increase in stakeholder involvement.  The conference, sponsored by the Union of Concerned Scientists, will divide 90 or so participants, including scientists, journalists, academics, lawyers, economists, elected officials, regulators, planners, industry people and others with various backgrounds in shale gas development into three working groups: The state of the Science, the Regulatory Landscape, and Community Engagement. (You can read about participants, programs, and agendas here.) The assignment is to use “expertise and perspectives on the current landscape, including major gaps, barriers and solutions, for an informed approach to decision making on fracking.” We will present our recommendations in a public session on July 25.

It’s a broad and ambitious undertaking, but I expect one theme will recur as it has throughout this discussion: the effectiveness and merits of a regulatory system that relies heavily on voluntary disclosure and self-policing by the industry, and an abiding culture in state regulatory bodies. The industry is exempt from federal regulations that require a cradle to grave accounting of hazardous chemicals used to extract gas from wells. With no national baseline for handling toxic waste through the Resource Conservation and Recovery Act, industry has sought to ease public concerns and criticism by teaming with non-profit groups, such as the Center for Sustainable Shale Gas Development and the Environmental Defense Fund, to develop “best practices,” including waste disclosure protocols. It’s an approach that has engendered skepticism in those who believe it serves more as PR cover than an effective right-to-know tool.

At the conference Wednesday and Thursday, I’ll chair the group looking at community engagement issues. If I can bring anything to the table at the start, it’s an appreciation for the scope and diversity of stakeholders and their varying and often conflicting takes on information and mis-information.

Often, the conversation is framed in the context of those for or against shale development, along with testimony from winners and losers. In an attempt to frame this more comprehensively, I offer these these reference points. In a sense, issues begin with gas companies, investors, and speculators competing to capitalize on U.S. shale resources, and they end with energy consumers and ratepayers in residential and manufacturing sectors, nationally and globally, sensitive to price. Caught in the middle is a mind-numbing collection of public and private interests: Property owners who want to lease or don’t want to lease their land, residents and business owners who will shoulder costs or reap benefits of development; residents in the larger region affected by development; local governments, state, and regional entities dealing with community impact issues; federal agencies representing interests including stewardship of public lands, natural resources, and matters of energy, economics and climate; environmental activists and their lobbies; industry advocates and their lobbies; unions, workers and contractors concerned about job creation and occupational risks…

On and on.

The demands for information from each group will vary, and they are complicated by varying value sets, ideology and interpretations. There are stakeholders sympathetic to industry’s position that regulations threaten national independence, free-enterprise, and jobs. And there are those who see regulation (without exemptions) as an essential public safeguard for an industry that extracts wealth from other people’s land using large volumes of hazardous chemicals.

Organizers of the conference in LA on Wednesday and Thursday have done a remarkable job in bringing a healthy array of informed and relevant stakeholders to the table, representing public and private groups and the fourth estate. It’s going to be a busy week. I will report results.