VIENNA — The divisive national debate over fracking has found its way into homes, cafes and even Sunday school classes in Johnson County.
Ernie Henshaw of Johnson County Citizens Opposed to Fracking Proposition (also a county commissioner) and Annette McMichael of Southern Illinoisans Against Fracturing Our Environment talk about both sides of the fracking debate. Johnson County in southern Illinois has become the focal point of a national debate on fracking, which involves using a high-pressure mixture of water, sand and chemicals to crack and hold open thick rock formations, releasing trapped oil and gas. Johnson County voters this week will vote on an advisory referendum that aims to ban fracking in the county.
Photos by Justin L. Fowler/The State Journal-Register |
Annette McMichael and her group - Southern Illinoisans Against Fracturing Our Environment, or SAFE, have been at the forefront of the fight to ban hydraulic fracturing in Johnson County. The group has brought an advisory referendum to the ballot known as "Community Bill of Rights."
by Tim Landis, Business Editor, The State Journal-Register, March 15, 2014
VIENNA, IL — Hydraulic fracturing joins the usual local, state and federal offices on the Johnson County primary election ballot Tuesday.
In the weeks leading up to the election, the divisive national debate has found its way into homes, cafes and even Sunday school classes in the rural southern Illinois county better known for its scenic, rolling hills and two state prisons that are the largest local employers.
Johnson County voters will be asked by advisory referendum on Tuesday whether the county should adopt a “Community Bill of Rights” intended to ultimately ban fracking, as the practice also is known. Only one other county in the country, in New Mexico, has banned the practice, according to referendum organizers.
Proponents argue the referendum is a matter of local control and protecting the environment. Approval, opponents say, would not ban fracking to begin with but would result in costly lawsuits.
The fight has drawn national media attention. Both sides claim the other has used scare tactics and outside interest groups to sway the vote, using terms such as “extremists” and “radical” to describe each other. Both claim the mantle of grassroots organization.
“It's become quite the battle,” said County Commissioner Ernie Henshaw, a lifelong resident and an opponent of the proposition. He's among the organizers of the group, Johnson County Citizens Opposed to Fracking Proposition.
“If you'd told me a year ago we'd be here,” Henshaw said, “I wouldn't have believed you. But here we are.”
The ballot initiative
“If you want to blame someone, blame me.”
Local resident Annette McMichael offered the self-assessment in response to claims her group — Southern Illinoisans Against Fracturing Our Environment (SAFE) — has served as a front for outside environmental organizations to get the fracking question on the ballot.
She pointed out the three-member county board suggested the non-binding advisory referendum as an alternative to SAFE's call for a board-approved ban. Only about 380 petition signatures were needed to get the question on the March 18 primary ballot.
SAFE collected approximately 1,000. There are an estimated 8,400 registered voters in Johnson County.
“We sat around the kitchen table,” McMichael said of SAFE's formation. “We're all volunteers.”
McMichael estimated SAFE has 90 members in Johnson, Hardin, Pope, Jackson and Union counties.
She and husband, Jim, moved in December from the Champaign area to their two-story home and 10 acres in the northeast corner of Johnson County. But Annette McMichael said the couple has owned the land at the edge of the Shawnee National Forest for more than a decade and have been frequent visitors to the area. Her entry into the fracking debate, McMichael said, began with concerns about the water supply during the drought of 2012.
“I had no idea we were sitting on a fracking zone,” said McMichael, who considers the practice a dire threat to air, water and health.
The more she learned, McMichael said, the more she became convinced only an out-right ban would suffice. But she said SAFE members have no illusions should voters approve the advisory referendum on Tuesday given the opposition of local and state elected officials.
“They're never going to approve a Community Bill of Rights, never in a million years,” McMichael said. “We want people to send a message to county commissioners that we want to ban fracking. We're making a statement. That was always our intent.
“This is only one step,” McMichael said. “We'll never, never, never give up.”
Mora County
Mora County, N.M., finds itself in a legal fight less than a year after becoming the first county in the nation to ban fracking.
The Independent Petroleum Association of New Mexico and three county landowners filed suit in federal court in November claiming the ban violates state laws and is unconstitutional. The ban was approved in April 2013 with support from cattle farmers who viewed fracking as a threat to land and water.
Legal troubles in a county that can little afford the cost are their chief fear, say opponents of a Community Bill of Rights in Johnson County.
“They all follow the same pattern. It's a kind of boilerplate language. This would wind up right back in the laps of the county board,” said Zach Garrett of Shawnee Professional Services in Vienna. His father, firm CEO Mitch Garrett, is among the organizers of referendum opponents.
The “rights,” said Zach Garrett, could be extended to all manner of environmental issues, including farming, genetically modified crops and water use. Expensive legal challenges would be certain to follow, according to opponents.
Not so, said Natalie Long, southern Illinois coordinator for the Community Environmental Legal Defense Fund. The national, not-for-profit law firm has helped organize anti-fracking educational campaigns and referendums across the country.
Long said, of the 160 local governments to approve community rights statutes, only Mora County, N.M., has faced a court challenge.
“Whatever comes out of the vote, the ultimate vote falls to the Johnson County commissioners,” said Long, who is an attorney. “This is about fracking and nothing else. It would be the commissioners who would draft a local rights bill.”
Long said her group would recommend provisions, but so could local residents.
Local control?
Proposition supporters say Henshaw and other opponents have tried to change the subject from fracking as a result of strong local support for a ban. Henshaw insisted the group has not taken a stand on fracking, but that state regulation makes it a moot point.
Even as Johnson County voters prepare to cast ballots, regulators at the Illinois Department of Natural Resources continue to work on final regulations that would implement legislation signed by Gov. Pat Quinn in June 2013.
Draft rules released last fall came in for a blizzard of criticism from environmental groups, which claimed the agency had sold out to the oil industry.
The regulatory fight in Springfield has only added to the uncertainty in Johnson County, Henshaw said, adding that the county state's attorney has provided an informal opinion that commissioners have no legal authority to ban fracking.
A spokeswoman for Illinois Attorney General Lisa Madigan said that office has not yet addressed the issue of local versus state control.
“Initially, I wasn't overly concerned, I'll put it that way,” Henshaw said. “Had I known at the beginning what I know now, I could have become concerned a lot sooner.”
Local control, Long said, is at the core of the fracking issue and the Johnson County referendum. Whatever the outcome Tuesday, she said, the issue will not fade. Legal challenges could be necessary to settle the question.
“It's really at the heart of what we're doing,” Long said. “If the state passes a law that violates the rights of its citizens, how do you address that?”
Contact Tim Landis: 788-1536, tim.landis@sj-r.com, twitter.com/timlandisSJR.
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Hydraulic fracturing
The U.S. Energy Information Administration estimates domestic natural gas production will increase from 23 million cubic feet in 2011 to 33.1 trillion cubic feet by 2040, a 44 percent increase. Nearly all of the projected increase is expected to come from shale-gas released through hydraulic fracturing, also known as fracturing or fracking.
Shale formations underlie most of Illinois, including central Illinois.
Here is how the process works:
* Fracturing relies on injection of more than 1 million gallons of water, sand and chemicals down and across horizontal wells at depths up to 10,000 feet.
* The pressurized mix causes the shale to crack.
* Sand particles hold the fissures open, allowing natural gas to flow up the well.
Source: “Annual Energy Outlook 2013” of the U.S. Energy Information Administration
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Ballot proposition
Voters in Johnson County, in southern Illinois, will be asked to decide the following proposition on the Tuesday primary election ballot.
“Shall the people's right to local self-government be asserted by Johnson County to ban corporate fracking as a violation of their rights to health, safety and a clean environment?”
The referendum is advisory. The county board of commissioners would have to approve a ban.
As the national media puts the spotlight on the “FrackGate” public relations scandal in Ohio, where state officials worked to “marginalize opponents of fracking by teaming up with corporations—including Halliburton—business groups and media outlets,” Illinois residents behind a ballot initiative to ban fracking in rural Johnson County are facing a similar campaign of misinformation and local news blackout.
It’s bad enough that Illinois’ flawed state fracking regulations have spiraled into a widely denounced phase of disarray and confusion.
Until last Friday, the Vienna Times/Goreville Gazette newspaper company, the only local newspapers in Johnson County’s treasured Shawnee National Forest heartland, had provided fairly balanced coverage of the fracking debate, including the county commissioners’ decision last May to support a one-year moratorium on the controversial fracking process, as out-of-state corporations like Kansas-based Woolsey Energy swept up land leases.
Two of the three Johnson County commissioners, in fact, had encouraged residents last fall to draw up their own “simple” ballot initiative to gauge the “will of the people.”
Sounds reasonable and democratic, no?
But now, with the same local citizens group’s non-binding ballot initiative gaining widespread support across the county from residents especially concerned about the threat of involuntary “forced pooling” from neighboring leases, theVienna Times/Goreville Gazettehas suddenly announced—according to local residents—a new policy to refuse all anti-fracking ads, letters to the editor or news releases, even as it accepts ads and press releases from an Orwellian campaign set up to dismiss the community rights-driven campaign against absentee fracking corporations as a “radical agenda of out-of-state interests.”
Since when are local farmers called “out-of-state” and absentee fracking corporations considered homeboys?
And since when has this ad become too dangerous for the Vienna Times?
Instead, featuring Shawnee Professional Services president Mitch Garrett and Johnson County Commissioner Ernie Henshaw—who had originally voted for the one-year moratorium and asked for public input—the Vienna Times/Goreville Gazette celebrated the kick-off of an opposition group to the county citizens initiative on its front page this week, and included an ad with a direct link to opposition’s Facebook page:
Two years ago, Vienna Times publisher Lonnie Hinton and Shawnee Professional
Service owner Mitch Garrett worked together on another hot issue: Ridding the town of stray cats. And now, what about what the fracking cats about about to drag in? As in debunked and clearly exaggerated job promises, and the onslaught of the well-documented fracking reality of industrial traffic, workplace accidents and injuries, massive amounts of pollution and toxic discharges risking public health and potential earthquakes? “I’ve never quite grasped how much power the oil and gas industry has until now. What they are doing to manipulate the vote makes me angry and sad. And, what industry has not begun to understand is that there are plenty of us, and more all the time who will never, never give up,” said Annette McMichaels, communications director for the Southern Illinoisans Against Fracturing Our Environment citizens groups, and a resident and landowner in Johnson County. “The best way to have discussion is in open dialogue, solved in an equal and democratic fashion,” said Johnson County vegetable farmer Kris Pirmann, who is active in the community rights ballot initiative. “Open discourse is the only legitimate and democratic way, and shutting down one side is not open discourse.” Not so, says the local media. The Vienna Times/Goreville Gazette failed to answer multiple queries about its new policies. But local residents noted a new sign at the newspaper office, with a warning signed by Vienna Times publisher Hinton: “We reserve the right to accept or reject material submitted for publication, including letters to the editor, news releases and advertising.” Here’s the ballot initiative, drawn up by local Johnson County residents and southern Illinois native and resident Natalie Long, a community organizer with the Community Environmental Legal Defense Fund:
“Shall the people’s right to local self-government be asserted by Johnson County to ban corporate fracking as a violation of their rights to health, safety, and a clean environment?”
“This ballot initiative is led by a local group of people of common concerns, Johnson County resident, many who are third or fourth generation farmers,” said Pirmann, the Johnson County vegetable farmer, who noted that more than 1,000 county residents signed a petition for the ballot. “The argument that this initiative is hijacked from the outside doesn’t hold any water.”
Long adds: “A Community Bill of Rights is a community-tailored document. It’s made up of two main parts: (1) a section that asserts the rights of the community, including the right to local self-governance, the right to clean air, and the right to clean water; and (2) an enumeration of activities that violate those rights, and therefore are prohibited in the community. Because a Community Bill of Rights is drafted with each particular community, that means that no two documents are the same. Instead, they reflect the priorities of the community. In this case, Johnson County citizens are hard at working crafting language that focuses specifically on prohibiting hydraulic fracturing—nothing else. Any claim otherwise is both misguided and false.”
Only days away from the March 18th ballot vote, Johnson County residents are not giving up on the local news media black out, or the political games from out-of-state industry sycophants. Redoubling their efforts, Johnson County residents are stepping up grassroots efforts and seeking funds to place the ads in regional newspapers.
“It appears we don’t have avenue to voice our concerns,” Pirmann said. “They just want us to be quiet and go away. But we’re Johnson County residents and we’re going to talk to Johnson County residents face-to-face, in a democratic fashion, and voice our opinions to protect our land and farms.”
Visit EcoWatch’s FRACKING page for more related news.
In 1989, Dusty and Tamera Hagy bought 81 rural acres in Jackson County, West Virginia. Twenty-one years later, the Hagys sued four natural gas drilling firms alleging the natural gas wells drilled on their property in 2008 contaminated their drinking water and caused physical harm.
The Hagys’ water contamination lawsuit demonstrates how the natural gas industry has built a near-perfect “federal legal exemption’s framework” that when combined with lax or absent state regulations and the legal system’s high costs, inherently approves of citizen collateral damage with no restitution.
The consequence of this framework is that the burden of proof is placed on plaintiffs who, at best, are forced to settle with natural gas companies, thereby sealing the case from public scrutiny, scientific examination and legal precedence. Because the Hagys didn’t sign a non-disclosure agreement with the natural gas companies involved, their legal case gives the public a rare window into how fracking lawsuits play out in reality.
Natural gas is a critical resource. Fifty percent of American residences use natural gas. Natural gas is seen by some as a bridge fuel essential to the U.S.’s strategy to gain energy independence from foreign oil imports. Yet we must ask ourselves: Is the current fracking system one we should support? Are changes needed to level the playing field for all parties involved in fracking? Can fracking be done safely?
The land man cometh
Dusty and Tamera Hagy unwittingly fell into the fracking trap the day they bought their land in 1989.
“We loved our 81-acre property, it was our life. We had paid off the mortgage and spent a lot of money fixing the place up. We raised our two boys there, buried our animals there and were planning to give our boys some property,” said Dusty Hagy.
Mineral rights, fracking chemicals and natural gas federal environmental laws were all Greek to the Hagy family before a pleasant Equitable Production Company representative visited the couple in October 2007.
Equitable Production Company’s representative informed the Hagys that four natural gas wells were soon to be drilled on their property about 1,000 feet up the hill from their home.
In West Virginia, surface land ownership is separate from mineral rights. Mineral rights are the portion of the profits received from minerals extracted from land. Another party owns the Hagy property’s mineral rights which were were granted hundreds of years ago. The Hagy family receives no gas royalties and didn’t sign a formal gas leasing contract, though, they did sign plenty of “papers” believing they did not have a choice.
Fracking starts – trucks, noise, explosions, and chemicals
On Nov. 11, 2007, trucks, back hoes, tree cutters and workers converged on the Hagy property uphill and upstream from their home. Equitable outsourced the drilling to BJ Services and for the next six months the holler, or enclosed valley, was flattened for a six-acre natural gas well pad.
Tamera Hagy describes life during the drilling and fracking: “It was nothing like what I had expected. This was a huge operation that lasted day and night for eight months. Trucks went up and down the road 24/7. The smell of fumes would make you sick. One night we heard something like a giant drill bit drilling and vibrating under our house.”
Dusty visited the well pad often and learned from the job crew that this fracking job wasn’t going smoothly. One worker mentioned that they had hit a lake of water and were moving the rig. Another worker shared in this audio tape #3 how the cement casing “went bad” and was re-cemented. Of the four open and lined fracking wastewater ponds, one overflowed and later broke, spilling the fracking wastewater into the nearby creek that flows from the well pad past the Hagy family’s home. In March 2008, Dusty noticed that another fracking pond’s wastewater was emptied by hose into the woods. After finding foam and oil slicks in the creek next to their well, and then when their large pond turned green, the Hagys knew something wasn’t right.
Dusty lodged a formal complaint with the West Virginia Department of Environmental Protection (DEP) on Nov. 17, 2008. DEP records reveal a gas inspector visited the site at the well’s completion and issued no violations. DEP records also reveal the three natural gas wells began producing gas in July 2008 and the wells today continue to produce about 3,000 m.c.f. of gas per month.
Be careful what you sign
As Dusty describes the Equitable representative, “We liked him, and he was a nice enough guy in the beginning and we believed everything he told us at face value.” Equitable said the natural gas drilling was simple and would cause minimal damage on 1.5 acres. When Dusty asked if fracking used anything dangerous, they were told that only water and sand were used, no chemicals were ever mentioned. A water test prior to drilling supported the Hagy’s belief that their water well was clean and safe.
On Oct. 22, 2007, Equitable paid the Hagys $19,000 to cover surface damages to their land and trees because building a well pad trashes the landscape. “I believed the Equitable guy when he said the check was just for surface damages. My property was valued at nearly $200,000. It was stupid to sign that paper, I should have gotten a lawyer,” explained Dusty. Because the well pads used more than the original 1.5 acres, Equitable paid the couple another $10,000 for damage on an additional four acres.
Later in 2008, Dusty learned the papers they had signed to receive the payments were actually damage release contracts attempting to exempt Equitable, and all drilling providers, from any and all damages associated with the drilling. “Other than shooting the family dog, this ‘contract’ covered near everything,” said Dusty Hagy.
Family gets sick—headaches, rashes and vomiting
The family drank, bathed and cooked with their well water from November 2007 to November 2008 during the gas well drilling and fracking. Ironically, the Hagy family had boasted about their pristine well water and even after their adult sons moved out, the boys brought jugs of well water back to their homes.
The Hagys began to notice changes to their water in early 2008. Their water volume was dropping and the water’s color changed from clear to brown. Often black particles were floating in water drawn from their well. Despite overwhelming evidence otherwise, Equitable never reported any issues that would impact the Hagys’ well water.
Adding to the changing water quality, both Dusty and Tamera said they were oddly tired, and woke up with “bad headaches, like a hangover.” Both smelled an “acid” odor in the house and their eyes would burn in certain rooms.
The Hagys didn’t put “two plus two together” until their youngest son went to his family doctor in Columbus, Ohio in October 2008. Their son had complained of nausea and was spitting up blood. His doctor treated him for acid reflux, a disorder he’d never experienced before, and suggested he stop drinking his parent’s well water. The son’s symptoms disappeared soon after he discontinued drinking his parent’s well water.
Tamera Hagy developed a rash that her primary care physician diagnosed as contact dermatitis, a skin inflammation caused by a foreign source. Expert medical testimony in court documents reveal the Hagys’ health symptoms mirrored chemical exposure.
Water tests reveal drinking water was bad and Hagys vacate property
Based on their complaints, Equitable re-tested the Hagy water well on Nov. 8, 2008 and their water had clearly changed. The turbidity, or murkiness, was six times greater post drilling (0.5 to 3.2) and iron, manganese and calcium levels increased significantly (Dusty replaced one hot water heater during this time due to calcium build-up).
Water tests conducted later also revealed arsenic, lead, barium and Bis(2-ethylhexyl)phthalate, an organic compound linked to fracking wastewater. The radon levels of the Hagy well were 1,233 pCi/l with the maximum contaminant level set at 300. When those radon levels were compared to area wells, the Hagy’s radon in their drinking water was markedly higher than eight local U.S. Geologic Survey wells in the area.
However, the water tests conducted before and after drilling were limited and included no tests for known fracking chemicals or volatile organic compounds.
In November 2008, Equitable told the couple, “the water was bad” and to stop drinking the well water and the company began supplying bottled drinking water.
On Jan. 13, 2009, Dusty and Tamera vacated their home and have never moved back. “We thought we were going to die,” said Dusty Hagy.
Relations with Equitable were getting tense; Dusty even began recording phone conversations. Repeated requests for a list of the chemicals used in fracking went unanswered.
Equitable admits “your water’s been affected because of our drilling process.”
Dusty Hagy assumed Equitable would fix the water issue based on phone conversations (audio tape #1) with his Equitable representative who stated on the phone:
“ … for whatever reason the water’s been affected because of our drilling process. But the horizontal portion of it I don’t think had anything to do with it. Something we did had something to do with it. We have done something to the water, and no one was doubting that, but it wasn’t the horizontal part. I’m not doubtin’ that fact and I don’t think anybody’s doubtin’ that, the horizontal portion wouldn’t affect it.”
Equitable offered to drill a new water well which the family declined because they believed the aquifer itself was contaminated. This belief stemmed from a neighbor’s claim that 30 of his animals had died in 2008 during the gas drilling. Plus, Equitable tied any restitution to the couple signing an non-disclosure agreement, or gag order, meant to silence the Hagys and negate any future claims.
Hagy family sues drilling firms
As this phone conversation (audio tape #3) with Equitable reveals, once the family sought legal representation in March 2009, all contact with Equitable stopped.
Bottled water deliveries and hotel payments stopped. While the couple searched for a rental home, they lived in their un-heated camper. On a positive note, once they vacated their home, their negative health symptoms dissipated.
The Hagys sued Equitable Production Company, BJ Well, Halliburton and Warren Drilling in October 2009. In short, even with the taped calls, drilling records, photos, videos and water tests, the Hagys’ lawsuit was “dismissed” in August 2012. Judge Goodwin’s opinion stated, “The case presents no genuine issue of materials fact for a jury to determine.” The lawsuit is in the appeals process and the litigation costs to date are $175,000.
How does this happen?
Though the Hagys’ lawsuit appears to provide evidence of water contamination, their dismissed lawsuit supports the claim, “There are no known cases of drinking water contamination from fracking,” often touted by pro-fracking groups.
This claim isn’t true, at least 4 confirmed cases of water contamination exist:
2012 PA. DEP, Bradford County, PA — Outcome: settled.
Why so few confirmed cases and no case tried before a jury?
More than 40,000 shale gas wells have been drilled since 1996 and at least 825 serious fracking complaints have been lodged, yet only 40 fracking lawsuits have been filed. To date, a jury has never heard a fracking lawsuit.
The answer:
The natural gas industry is regulated on a state-by-state basis because of the federal legal exemptions granted to the industry.
Predatory, private contracts signed between firms and individuals favor gas companies.
The U.S. legal system’s high litigation costs dissuade lawsuits.
How the “the Big 7” exemptions play out in reality
The natural gas industry is exempted from seven major federal environmental laws. These laws in their simplest forms are intended to protect people, places, water and air. The U.S. Environmental Protection Agency (EPA) is tasked with enforcing these laws. Because the natural gas industry isn’t regulated by the U.S. EPA at the federal level because of the legal exemptions, natural gas drilling is regulated on a state-by-state basis.
The chart below outlines the seven federal environmental laws exemptions, with many exemptions dating back decades.
The latest three exemptions were strategically written into the 1,500 page Energy Policy Act of 2005 and are now infamously named the “Halliburton loophole.” These three short paragraphs focused on eliminating water pollution oversight and also eliminated the strict environmental reviews that federal projects must undertake.
When these exemptions are combined, the benefits to natural gas industry are: no federal EPA oversight therefore pushing fracking regulation to the state level, no scientific testing, no environmental studies, no health and geologic studies and no liabilities for drillers of chemical releases into waterways and air.
The 2005 Energy Policy Act’s strategy was to provide the U.S. with “an abundant, domestic and affordable sources of fuel.” Since 2005, the gas industry has been unhampered by federal regulations and the newer shale gas drilling has grown quickly; U.S. natural gas from shale reserves has grown from one percent to 35 percent of the U.S. supply. This new supply of 8.5 trillion cubic feet of gas has forced natural gas prices down by 50 percent, even spurring coal-based electrical plants to convert to natural gas.
The coffin nail: Toxic Release Inventory exemption
The least known exemption though, the 1986 Toxic Release Inventory of Emergency Planning and Community Right-to-Know Act, may offer the natural gas industry the biggest shield from liabilities and the greatest obstacle for parties alleging fracking water contamination.
In response to the Bopal, India disaster, when Union Carbide released a harmful gas into an urban area which killed more than 20,000 people, Congress required industries to list harmful chemicals on the Toxic Release Inventory to the EPA. The EPA collects and then disseminates that information to the public and local governments.
Yet, oil and gas companies were exempted from the Toxic Release Inventory, therefore chemical disclosure is different for each of the 29 fracking states. To boot, shale gas production, or fracking, is concentrated in relatively gas-friendly states: Texas, Louisiana, Pennsylvania, Arkansas, West Virginia, Colorado and North Dakota, listed in order of gas production volume.
According to an in-depth National Resources Defense Council report which compares today’s hodgepodge of state-level fracking regulations, no state requires full chemical disclosure. Even new regulations in Texas, the largest shale gas producer, require chemical reporting but do not require “proprietary” chemicals to be listed which can account for 50 percent of the chemicals used in one fracking. The report also concludes that state reporting is inconsistent and significant portions of data are missing altogether.
Adding to the lack of chemical disclosure, only two states (West Virginia and Colorado) inform residents about new wells before drilling. This means that in 27 states, residents are not notified of new drilling, making it impossible to conduct comprehensive (and expensive) water testing before the drilling.
How exemptions play out in the law-can you prove what you drank?
In 2007, Equitable wasn’t legally required to disclose the chemicals used in the fracking, therefore no doctor, no person or group knew what chemicals to test for or what caused the foam in the creek, the color changes in the pond or the compromised water well.
Though water tests revealed the Hagy property drinking water had changed since the drilling had occurred, the tests were not apples-to-apples comparisons. During the lawsuit’s evidence discovery process, the natural gas firms finally furnished the list of chemical used on the Hagy property which verified the fracking chemicals used weren’t “just water and sand,” as quoted by the Equitable contact.
The absence of verifiable chemical data is displayed in Judge Goodwin’s opinion and order to grant a motion for Summary Judgement, which in layman’s terms means the Hagy lawsuit was dismissed. The burden of chemical exposure proof was placed on the plaintiffs, “to demonstrate amount, duration, intensity and frequency of chemical exposure.” A catch-22.
Gas leases and contracts: The devil’s in the fine print
Adding to the chemical disclosure catch-22 is that most gas leases heavily favor natural gas drillers. In 2011, The New York Times analyzed more than 110,000 shale gas leases and concluded; over half of gas leases provide landowners no restitution in the event of harm, most exclude any explanation of potential harm and a majority of leases include automatic contract extensions that require no landowner approval. Natural gas wells can produce for decades and gas lease contracts can be automatically renewed in perpetuity. Many leases include clauses mandating that damage disputes be heard in arbitration outside of the legal system.
The door-to-door leasing agents who represent gas drillers, a.k.a. landmen, are tasked with getting natural gas leases signed by landowners. Feedback from many landowners is that landmen are very persuasive, personable and often mis-represent facts. These revealing talking pointspages were reportedly found by a Ohio homeowner who had been visited by a West Bay Exploration’s leasing agent. The talking points, marked confidential, give sales agents advice to, “not talk about the anti-fracking documentary Gasland, to not discuss chemicals or fracking and to speed up the lease signing before people think about the drilling.”
Many natural gas leases border on predatory in nature as it appears the gas leasing process relies on the ignorance of rural, landowners to enter into binding, private contracts with natural gas drillers.
The Hagys claim they were absolutely unaware they had signed a damage release waiver, twice even. “The Equitable representative sat right on my porch and said the cash was a small payment for the trees and land damage. It wasn’t until November 2008 that I even found out I supposedly had signed away any rights,” said Dusty.
These two damage release forms inadvertently signed by the Hagys have reared their ugly heads during the lawsuit process as another reason Equitable and BJ Services claim they are not liable for any water, health or property damage; the companies claim the Hagys signed away any rights to liabilities and restitution.
Suing a gas company—expensive and grueling
“Fracking has been the tragedy of the commons—freedom to a common, brings ruin to all,” according to Maxwell Kennerly, a trial lawyer at The Beasley firm in Philadelphia. Legally it’s been impossible for plaintiffs to precisely pinpoint exactly what happened underground or link exact chemicals to a situation when those chemicals aren’t divulged and the drilling process isn’t accessible. Any lawyer taking these cases has to be prepared to put their own money and resources on the line to be a trailblazer.”
The first legal team hired by the Hagy family in 2009 dropped the Hagys’ case one year later. During that year the family lost valuable time in conducting water tests and gathering evidence. Their current lawyer, Kevin Thompson, of the Law Offices of Thompson Barney in Charleston, West Virginia, has taken the case on a contingency fee basis. The Hagy family has paid no out-of-pocket expenses. The lawsuit’s litigation costs to date top $175,000.
Lastly, there is an emotional toll for using our legal system to get restitution; it’s a grueling process according to Dusty Hagy. “It’s been hell. For over two years, we’ve been reliving this awful experience. In the back-of-our-minds we realize this may be all for nothing. My wife and I feel we had our most important asset stolen from us, the drinking water that makes our property a place to live, not just 81 acres for animals. It feels like the whole system is stacked against us.”
Where are the Hagys?
Interestingly, the Hagys and 70 of their neighbors who live on a 5-mile stretch of Sugar Creek Road have petitioned Southern Jackson County Public Services to extend public water service to their homes at cost of $2 million. The project is on an 5-year waiting list and there is no guarantee it will ever be completed. According to Karl Vielhaber, general manager for the Southern Jackson County Public Service, the property owners have petitioned for municipal water because most claim their water wells are contaminated from gas drilling. Most of the homeowners haul water to their homes from a coin operated water source.
Dusty and Tamera have moved to a new property with a mortgage, and they still own their vacated property. Equitable’s three natural gas wells still produce gas today and may for years on the Hagys’ vacant property.
The winners and losers
A clear winner in fracking so far is natural gas industry. Fracking cases settled out-of-court provide critical benefits for the gas industry because the settlements include “gag orders” so that injured parties can not discuss the case and its contents. Financially, settlements reduce liabilities for natural gas firms by eliminating unpredictable jury awards. More importantly, settlements help the industry maintain their public relation’s campaign to the media, elected officials, the financial industry and the American consumer that natural gas drilling is clean and safe.
American consumers are also winners in the fracking story. According to the Energy Information Administration, residential gas prices are about 50 percent less than the 2008 natural gas price peak.
Fracking’s losers are the private landowners who have been negatively impacted by fracking and may or may not have received proper restitution. Collectively, the public loses as closed settlements shut down any learning, studies or analysis needed to create uniform industry best practices and build legal precedence for future cases.
Based on evidence and public pressure, Congress finally approved the U.S. EPA to conduct scientific fracking studies. The final study will be available for peer and public review December 2014.
Fracking regulations are slowly developing. The Obama Administration announced federal regulations mandating methane capturing at well sites. State legislatures are slowly developing new rules with Pennsylvania creating some of the toughest legislation over wastewater recycling and charging per well fees to pay for damages. But, as the Center for Energy Economics and Policy’s website and National Resourced Defense Council report illustrate, fracking regulation is complicated and convoluted.
What can you do?
Stories like this can often leave readers with an uneasy question: “What can I do?” Hear are a few ideas.
Contact your federal and state elected officials. Your state elected officials are key as fracking is exempt from federal regulation and it seems Washington is struggling to make any changes with pretty much anything. Sending a quick email to your state delegates and senator with a link to this post takes 30 seconds and alerts your elected officials that fracking is on your radar screen. Make your opinion on the current process known.
Choose a fracking group from below that matches your point of view and sign-up for their newsletters. Add them to your twitter feed or friend on facebook to keep abreast of new regulations and issues. If you’re a Flipboarder, add fracking to your list.
The groups below often include easy “call-to-actions” where your voice can be heard. Interestingly, all but a few people in these groups and grassroots organizations are volunteers.
