Recorded: June 2012
In this episode, Earthjustice content producer Jessica Knoblauch speaks with Deborah Goldberg, the managing attorney at Earthjustice's Northeast office.
For almost four years, Goldberg has been working on cases involving fracking, a controversial form of extreme gas drilling that can contaminate the air and water.
Deborah Goldberg: It's only very recently that hydraulic fracturing has been combined with horizontal drilling. Horizontal drilling is when you bore a well straight down, a vertical well, and then you turn the drill bit so that it can go laterally through the shale formation, and they can do that for a mile or more. That means that you use a lot more water and chemicals and sand for the process, and the impacts of the process are much more severe when you're using horizontal wells instead of the traditional vertical wells.
The combination of the two technologies together, particularly out here in the east where people really hadn't seen it before, caused immediate problems for the environment and public health and just raised a lot of alarm bells for folks in the Marcellus Shale region.
Jessica: Okay. So why did Earthjustice decide to take on cases about fracking?
Deborah: Earthjustice got involved because we were starting to see reports from our coalition partners about what was happening and potentially happening in New York. And, our office had just opened here in the Northeast. We only had two attorneys. When I arrived, they said to me, "You know, we've been hearing about this gas development. It sounds like it might be important. We're not really sure if there's a role for us. Maybe you should take a look at it." And so I did, and I've been working on it for most of my time ever since because it's probably the industry with the most significant environmental impact in the history of New York state. It seemed like something that we should be devoting some resources to.
Jessica: What laws currently exist to regulate fracking, and how is Earthjustice working within the laws that do exist to strengthen fracking regulations?
Deborah: Well, it's challenging to work on fracking because the oil and gas industry has managed to secure for itself exemptions from most of the major federal environmental laws. There are small pieces of the laws that still apply, but some of the most important provisions don't apply to this industry at all.
So for the most part what we're doing is working with a patchwork of state law. And that means there are about 30-plus states where there are shale deposits that can be mined for either oil or gas, and each state has a different regulatory system and different court system. And we have to go and think about where we can have the most impact on a state-by-state basis.
So here in the Northeast, because of the problems that we're developing, the Pennsylvania Department of Environmental Protection figured out pretty quickly that its regulations were not adequate to protect the environment and the people of Pennsylvania. And we got involved early on and helped work with experts to provide some technical comments on new proposed regulations.
And we are also working within the laws that do exist to just try to make sure that the agencies are vigorously enforcing them because what we have sometimes seen are sweetheart deals or just a failure to impose the most rigorous requirements even when they can do it. We need to be there to make sure that the laws that are on the books actually make a difference.
Jessica: So it seems like it's largely a state-by-state fight, but is there anything that we are doing at the federal level?
Deborah: Well we can work a national level, first of all, even when we're operating state-by-state. So for example, we have worked in Colorado out of our Rocky Mountain regional office to help Colorado adopt the most stringent disclosure rules for the chemicals that are in the fracturing fluids yet to date. And what they did was build on what Wyoming did, and what we will do is build on what Colorado did. So each time there's a new set of regulations, what we try to do is press the state to do better than the last state so we can sort of use it as a floor and try to leverage the regulations into a better place each time that a new state takes up the issue.
On the federal level, we've also been quite active. As I said, there are not a lot of the federal statutes left, but there are some. Our Rocky Mountain office, again, had filed a lawsuit to compel EPA to adopt regulations that would control air emissions from the oil and gas industry. So we've been in a rulemaking process. We were involved not only in generating the requirement and setting the timeline for these rules. We were very actively involved with our partners in providing comments on the rules. And the industry, as is its wont, is of course threatening to sue if they have any teeth at all, and I'm assuming we'll be involved in helping EPA defend the rules if they're challenged.
We also filed a petition with EPA to have them require the manufacturers and the processors of the additives that are used in oil and gas development disclose the chemicals in their products and the health and safety information and a variety of other information about them.
The reason that was really important is because even though there is increased disclosure from these service companies that do the fracturing, they are not always the companies that make the products. So sometimes what they say is, "Well, we can't disclose what's in these products, because we don't even know what's in them. We have the MSDS sheets, the Material Safety Data Sheets, that are required for our workers. But those come from the manufacturers and the processors and they tell us that some of these chemicals are proprietary and we don't know what they are."
So we wanted to make sure that we go to EPA and EPA gets the information about all of the chemicals, whether they're proprietary or not. And it's useful because EPA is now engaged in a more careful review of some of these confidential business information proprietary information claims that the industry is making.
It used to be the case that they would pretty much just accept what the industry said and if nobody ever challenged it, it would just be concealed from the public. Now, because of advocacy that Earthjustice did, with respect to at least with some of the chemicals, there will be a presumption that health and safety information and chemical identity information will be publically available.
And, those that are not on the list yet, the company has to provide a justification for withholding it from the public. Before it used to be the case that they would just withhold it and wait to be sued.
Jessica: Who are some of the key players on this issue?
Deborah: Well, I think some of the key players are some of the agencies that are responsible for administering the laws and protecting the environment against the impact of the industry. And the agencies vary tremendously, both by state and even within a single state as administrations change. So when I first arrived here, we were under a different administration and the secretary of the Department of Environmental Protection acted quite aggressively to try and improve some of the regulations that were most important to protect water resources, both groundwater and surface water in the state.
Since then, we've seen no new regulations, and instead what we're seeing are an increasing array of general permits that streamline things for the industry. So the agencies are a very important big player. And obviously we have many partner organizations that are important players in this campaign, both to limit the development itself and, where we can't limit it, to impose vigorous environmental controls. There are also players that are none of the above that are the people who own the land and are leasing the land so that this gas can be developed there.
Jessica: Can you tell me about some of the water pollution issues that have resulted from fracking?
Deborah: Sure. The groundwater pollution that we've seen so far, the methane migration that people may be familiar with from the film Gasland, where people can turn on their taps and light the faucet, is typically the result of bad drilling. It's the result of building the well in a way that isn't designed to contain the gas within the well bore and instead it is allowed to migrate out.
So that is a very real problem, and that in fact is one of the first problems that Pennsylvania had to address because there was widespread methane migration from gas. It could even be shallow reserves of gas, not even the shale gas that gets into the drinking water, but from the perspective of people who are using that water from their wells for their daily use, it doesn't really matter where it's coming from. They don't want it there, and once it's there, they've lost their water supply.
So it's very important that there be rigorous casing and cementing regulations. Pennsylvania did improve their regulations within the past couple of years in order to prevent new methane migration, but we're still seeing it because the industry is not inspected adequately; the rules are not enforced sufficiently; we don't have the resources to go out and challenge every single permit or examine every single well. So we're still seeing some methane migration as a result of bad well construction.
Jessica: What about air qualify affects from fracking?
Deborah: Well there are major air quality effects from the oil and gas industry. The drilling and the fracturing itself use very heavy machinery, a lot of equipment. Sometimes its diesel-powered. The fracturing also requires the use of lots of water and chemicals and often this water is trucked in, in big diesel-powered trucks. So for example in the Barnett Shale in Texas, they did a study of the air quality and they discovered that the emissions from the oil and gas industry down there were the equivalent of every single vehicle in the five county Dallas-Fort Worth area. They doubled the emissions. These are the emissions that cause ozone, which as people know is a very serious matter for respiratory health and for heart attacks, so we definitely were very concerned about the rise in ozone levels.
In Wyoming, which is a wide open space with virtually no industry, there's actually a very serious ozone problem in the wintertime. Wintertime ozone in the oil and gas areas in Wyoming is worse than it is in Los Angeles.
So that's one set of air emissions. And then there are a variety of toxic chemicals, both that are used in the process and that may come up with the gas and the oil as it's extracted that can volatilize into the air. And some of them are known carcinogens. There's a very wide array of potential air impacts.
The really tricky thing about this is, thanks to loopholes in the Clean Air Act that have been carved by the industry, it's very difficult to aggregate a whole bunch of little sources. Each gas well is not deemed to be sufficient to be regulated. So what we end up with is only the major facilities are subject to any control at all.
And then of course there's also the climate impacts of the air emissions. Methane is the principal ingredient of natural gas, and it's a very potent greenhouse gas. The more we learn about how the industry operates, the more we see that there are simply fugitive emissions, meaning that these are just emissions of the gas straight into the air during the process, which again has very important impacts for global warming.
Jessica: It also seems like a waste of energy.
Deborah: It's completely a waste of energy. It's interesting if you talk to some members of the industry, they're actually doing what are called green completions where they capture these emissions and they're actually economic for the industry. I mean, this is a product that they could sell, but they're so dug in on the idea that they don't want to be regulated in any way that they actually resist doing things that could be in their own self-interest.
Jessica: Speaking of wasting energy, natural gas was originally touted by the industry and even some green groups as a clean burning alternative to coal. Is that still the case?
Deborah: The major problem is the one that I just mentioned, which is the fugitive emissions. If we were actually capturing everything that was just being vented into the air or being burnt through flaring, we would have probably a much bigger difference between coal and gas than we currently do. But because these emissions are not controlled and because in the short term methane is a much more potent gas than carbon dioxide, we have less of a difference than we would ordinarily expect.
The focus in the past has been on the difference when you burn the gas and you burn the coal. And if you look only at the time that you're burn it for energy at a power plant, for example, then coal is definitely worse than gas. But if you look at them over their lifetime and you do it in the short term over the next 20 years, which is pretty much the timeline you need to take a look at if you're going to be serious about climate change and not reaching catastrophic conditions, then it becomes much more questionable how much of an improvement you get.
And of course, the biggest problem is that we are successfully moving from coal to gas in some cases, but what really seems to be happening is that we're just burning them both, and that's the worst of all possible worlds.
It's in part because there's no carbon tax or cap-and-trade system or anything that would prevent us from just burning it or exporting it so countries abroad can burn it. So right now, where we have a glut of gas in the United States, you would think this is the perfect time to take a deep breath and slow down and let's really understand what the impacts of this are before we develop more that we don't really need. Instead, what we see are a raft of new proposals for liquid natural gas export facilities, which will raise the price at home, increase demand at home and, of course, for those folks who are interested in energy independence, exporting your domestic resources overseas doesn't really help a great deal.
Jessica: New York State has emerged as a battleground in the fracking debate. Why is that?
Deborah: Well, Manhattan's drinking water supply comes from upstate, and 90 percent of our water comes from an area that actually is underlain by the Marcellus Shale. The Department of Environmental Conservation has set the surface of the drinking watershed off limits to drilling, but only to the Marcellus Shale drilling. So it is entirely possible that there could be vertical wells there, there could be other infrastructure there, and there are areas that are very important for the water supply that are outside of the watershed itself. They're the aqueducts that bring the water to the city, and the buffer zones around those aqueducts are really inadequate, in our view, to protect that infrastructure.
So there's both the potential of pollution of the water itself from erosion and sedimentation from all these surface industries. And then there's the possibility that the infrastructure could be damaged by the hydraulic fracturing process. New York City needs to be very concerned about what's happening upstate.
Jessica: One of Earthjustice's clients is a local brewery in upstate New York. Why is the brewery concerned about fracking?
Deborah: Well, the brewery relies on a source of clean water, and the one aspect of this process that we didn't talk about yet was the surface-water impacts. They are very concerned both about pollution of their aquifer, from which they draw the water, which could take place because of bad cementing or casing. There's also the possibility of pollution because of spills and leaks at the surface or from inadequate treatment and disposal of this waste.
The very first problem that we saw in Pennsylvania that drew a lot of attention was actually surface-water contamination in the area around Pittsburgh because of inadequate wastewater treatment. They were allowing the industry to bring the wastewater to sewage treatment plants, and they were just diluting it by dumping it in with the sewage.
The result of that was an immediate water quality violation in the Monongahela River, which is the drinking supply for about 350,000 people around Pittsburgh. And it was largely because of very high levels of salts in the water. These are naturally occurring salts, and they are normally underground. The shale itself is an old seabed that's been compacted after billions of years. And in between there are sometimes very salty aquifers or there's just a lot of salt that, when you put the fluids down, it dissolves those formations and brings them back to the surface.
Pennsylvania figured out very quickly that if they continued to allow the wastes to be sent through sewage treatment plants at the rate that they were at the beginning, they would actually salinate every freshwater stream in the state in a period of two years. So, that was a rather alarming statistic, and they quickly did adopt new regulations that limited the amount of these salts that could go into water from new gas facilities.
What that means now is that there really aren't a lot of good options for disposing of these wastes. They can't go to sewage treatment plants. There aren't any industrial wastewater treatments that have been approved for this process in New York.
Basically, the only way to get out salts at the levels that you see in hydraulic fracturing wastewater is by an evaporation-crystallization system. It basically distills the water off by boiling it off the top and leaves you with a very toxic sludge. That's a very energy intensive process. You still have a lot of residual waste you have to dispose of. So there aren't a lot of facilities that have invested in something that expensive.
Instead what people in Pennsylvania are mostly doing with their waste is, they are recycling some of it for a while until it gets too concentrated for them ever even to recycle it, and then the wastes that remain they are shipping off to injection wells in Ohio. You may have heard that Ohio recently has had a series of earthquakes, which the United States Geological Survey has determined are very likely the result of the injection of the waste fluids in Ohio.
Jessica: Well it sounds like, in many respects, this is just one big science experiment.
Deborah: It's one big science experiment with potentially very serious implications for human health and ecosystems. Instead of figuring out how to do this as best we can before we do it, we're learning about what the problems are by imposing them on people and on the environment and then trying to back up and figure out what we might do to prevent them from getting worse in the future. But in the meantime a lot of people are getting hurt. And we're destroying a lot of clean water and clean air and the landscape because we aren't doing any serious planning of this development and because there isn't enough process in place, at least in Pennsylvania, that would force them to take a look at the industry as a whole and its impacts as a whole before they go forward.
Right now, the oil and gas industry is very successfully externalizing a lot of the costs. So the environmental impacts, the health impacts, the property impacts are being borne by the public. One of the things we really hope to do by getting better regulations is force the industry to internalize these costs. They will pass them onto the consumers, but there will be an incentive to use less if the resource costs more.
Jessica: So natural gas has been called a bridge fuel for getting off coal, but as you've mentioned, fracking has plenty of its own environmental costs. So ultimately, what does Earthjustice hope to achieve on this issue?
Deborah: I think that we obviously want immediately to clean up as much as we possibly can where it's already operating. People should not be subjected to the impacts of this industry unnecessarily. But we aren't in a position, unfortunately, in this country right now where we can just immediately just shut down both gas and oil and keep our lights on.
We are working very hard and have worked at Earthjustice for decades to just keep out completely from areas where we think it's inappropriate, such as our public lands and here out east in the local communities that really don't want it.
And right now, since we have a glut, there's no reason to open these areas to gas drilling. I think that we can, at this point, think about slowing down the drilling as much as we possibly can. And then, when there is a real need, if there is a real need, then developing it only with good protections in place.
I don't see this as a bridge fuel to the future. I see this as a short plank that we're walking at the point of a sword. We have no choice but to use it in some places and for what we hope will be a short time, but the goal should be as little as possible. And, where it does go forward, to do it with the best protections possible.
Jessica: Well that's all the questions that I have for today. Deborah, thank you so much for taking the time to speak with me.
Deborah: My pleasure.
Jessica: If you'd like to learn more about Earthjustice's fracking campaign, check out earthjustice.org/fracking.
Finding Their Way: Jen Slotterback was hiking in her favorite park when she found signs of surveying for gas drilling, or fracking. She went home and told her husband Jim, and although the two had never been actively involved in the issue of gas drilling, they immediately began a campaign to save the park. The board that controlled the park was set to vote on whether to drill in the park in 11 days. The story of the Slotterbacks' journey of those 11 days is the subject of this film.