A Down to Earth Interview with Managing Attorney Deborah Goldberg
From the California coast to Maryland ports, Earthjustice is fighting to protect communities and special places from fracking.
Deborah Goldberg is a managing attorney of the Northeast regional office where she focuses on legal advocacy and litigation related to fracking. She spoke with Associate Editor Jessica Knoblauch in September of 2013.
Jessica Knoblauch: In October, massive flooding in Colorado damaged some of the state's oil and gas infrastructure, spilling thousands of gallons of oil. Given that climate change is expected to increase extreme weather events like massive flooding, can we expect more events like these in the future? If so, how can we be better prepared?
Deborah Goldberg: This is not the first of these types of events that we've seen, and I think it's very likely we'll see more of these events. We've had major flooding in both New York and in Pennsylvania because of hurricanes out east. We also have a lot of gas infrastructure in areas of New York that, had there been fracking in place during the floods, would have been underwater.
One really important action we should take is to ensure that we're not putting our infrastructure in flood zones and to define those flood zones in a realistic way given what we know about our climate future. The problem is that we're not willing to face up to the fact that there are places where wells just don't belong.
Gas Storage at New York's Seneca Lake
Jessica: Recently, Earthjustice challenged the industry's proposal to store gas in two abandoned salt caverns near Seneca Lake in upstate New York. Why are residents opposed to storing gas in these caverns?
Deborah: The people of Seneca Lake have worked very long and hard to develop a sustainable economy based on wineries, recreation and tourism, and they are deeply concerned that the storage facilities are just the tip of the iceberg of creeping industrialization. The character of the community is very important to them. Though there is some industry in the area now, they are really worried that these industrial facilities will make it impossible for small businesses, which are really the heart of the economy there, to stay in business.
In addition to industrialization, some of these caverns have a history where gas from the caverns has migrated into residential communities through naturally occurring fractures, causing huge explosions and loss of life. If there were a catastrophic event near Seneca Lake, it's not going to take much to drive away tourists. They'll look elsewhere, and it could collapse the economy very quickly.
The people of Seneca Lake are also concerned about the health impacts of the oil and gas industry in the area. At this point, the Department of Environmental Conservation has not analyzed any of the air impacts of the gas industry on this area. In addition, having Seneca Lake—a clean,deepwater lake that is also the drinking water supply for a 100,000 people—remain that way is extremely important to the people. It's also important to industries developing around there, such as distilleries and breweries that use that water to make their product.
State and Local Fracking Bills
Jessica: This spring, a New York court upheld the right of our client, the town of Dryden, to enact an industrial oil and gas drilling ban within its town borders. The case is now on the way to the highest court in the state of New York. If we win, what will that mean for communities with similar bans? [Editor's Note: On June 30, 2014, the New York Court of Appeals ruled that the towns of Dryden and Middlefield can use local zoning laws to ban heavy industry, including oil and gas operations, within municipal borders.]
Deborah: New York has a particular legal regime that makes it possible for localities to control where industrial activity goes, so there are many towns within New York that have passed similar bans to Dryden's that are waiting to see what happens with this case. My suspicion is that if these towns understand that it's legal for them to go forward, that they're not taking a big risk with getting sued, some of them will go forward with bans. In addition, there are other states with similar legal regimes that could be energized into enacting similar bans. For example, such a strategy might be possible in California, where they are just now beginning to ramp up oil and gas development.
What happens with other states that don't have similar legal regimes is not so clear. The extent to which we are going to see other activity around the country depends a lot on what the law will allow. There could be bans that don't have the legal backing that they have in New York, and people should be very careful to check with a lawyer before they push really hard for that kind of a strategy. They don't want to put a lot of time and energy into passing a ban that cannot be upheld in their state when they could be pushing for a more effective strategy.
Jessica: Earthjustice recently came out against a fracking bill [SB-4] in California. What's wrong with this bill?
Deborah: We had hoped that California would follow in New York's footsteps—where an environmental review and new regulations would be put into place before fracking is ramped up. Up until the last minute, it looked as if something similar to that would happen in California, but the industry managed to put in amendments that eliminated the moratorium that was proposed to be put in place until the environmental impact review was complete. As a result, we're in a very uncertain situation right now in California and we'll be in court figuring that out.
Federal Rules on Fracking
Jessica: Many communities have enacted new fracking regulations, but what should federal regulators do to make fracking safer?
Deborah: Well, we have federal rules that would go a long way in making fracking safer, but unfortunately this industry has managed to carve out exceptions for itself for many of these rules, so right now we're working to close those loopholes.
What we need is the model that operates for every other industry, which is that you have a federal rule to provide a floor and states and localities can certainly do better if they want to. But, because of these loopholes, we have a complete patchwork of state law, and in some locations there is very little protection whatsoever. My feeling is that the type of protection that you get for your health, your water, your air and your land should not depend on where you live. It should depend upon what's necessary to make sure that we preserve our health and resources for the future.
Disclosure of Fracking Fluid Ingredients
Jessica: Earthjustice is pushing for better disclosure of chemicals used in fracking fluids, but the industry often argues that disclosing their ingredients makes it easier for other companies to steal their formulas. Is this a legitimate concern?
Deborah: Right now people are typically trying to get disclosure of all of the chemicals used well-by-well without looking at the chemical concentration on a product-by-product basis. Because the industry mixes so many different products together, it seems very unlikely that, if you actually get a list of all of the chemicals that go into a well, anybody would be able to figure out the formulas for individual products. So, my stance is that it's a bogus argument.
Beyond that, the interest in public health really ought to outweigh the interest in company profit. There should be a regime whereby these companies are put on notice that if they want to operate in areas where they can potentially be exposing people to dangerous chemicals then they have to disclose their products' ingredients. If they are not willing to make those disclosures, then they need to develop safer products or they should not be operating in areas that can harm people or the environment.
Exporting Natural Gas
Jessica: Given all of the talk that fracking for oil and gas will help the U.S. gain energy independence, I was surprised to learn that the industry is now trying to export its fuel to other countries. Why is that?
Deborah: The industry has so overdeveloped the resource that they have caused a glut in the market and really depressed the price. As a result, they have more gas developed right now than they are able to sell in a profitable way in the U.S. This export option is a way to find whole new markets that will get them a larger profit. Of course, exporting oil and gas to other countries is completely inconsistent with the industry's past rhetoric about energy independence, but I don't think anybody in the industry ever had any real interest in energy independence. That was just a PR line. Most people who are really concerned about not being dependent upon foreign sources would not be in favor of sending our supplies overseas, but that's not what is really driving the industry.
Jessica: What are these export facilities like?
Deborah: These facilities are hugely energy intensive, and they will result in significant air emission impacts on people around the area. The facility proposed for Cove Point, Maryland, is right on the Chesapeake Bay, so there are huge tankers that will be taking away the liquefied natural gas. The risks of explosion are very serious, so when they move through the Chesapeake Bay they get a Coast Guard escort. This means that nobody can go anywhere near the tankers, which negatively impacts the people who use the bay for their livelihood.
The export facility will also have an impact beyond the Cove Point community because once it starts exporting gas it will create a whole new demand for more gas drilling in the Marcellus region. So, all of the adverse impacts that we've been seeing in Pennsylvania, Ohio and West Virginia from gas development will ramp up by a quantum leap to help serve the needs of the export facilities.
Making a Difference in the Fracking Fight
Jessica: What's the overall goal of our fracking work, and how can people help us achieve that goal?
Deborah: We are really eager to protect many of the iconic places out West from ever having a single well developed and we want to do the same in local communities. We think that there has been more than enough gas development already and we don't want the industry to go where it's not wanted.
At the same time, we have to recognize that there are a million wells drilled in the Unites States and we can't just abandon people living near these wells and tell them we are only working for bans when the wells are having real health and environmental impacts. So, our strategy is that we really want to keep as much dirty energy in the ground as possible, but we also want to protect the folks who are inadvertently in the path of this heavy industry.
I think our experience in fracking has shown us that you really can make the biggest difference when people are engaged at the local level and all the way up to the federal level. For folks who are concerned, I would really encourage you to think about what you can do in your community and what you can do to link up with folks in other communities to take this to the next level.
In New York, people at the beginning were very much divided. There were some who wanted new regulations in place and others who wanted an outright ban. What we learned is that, if we work together, we can actually generate an atmosphere that ultimately may lead to a ban. And, even if we don't get a ban, working together will help ensure that we have good regulations in place before fracking ever begins.
There's really a lot of hope for people fighting to keep fracking out of their communities. And, if people see this as a way to link up with others around the country on bigger issues like a sustainable energy future than we will have a much better chance of minimizing the amount of damage that we get from gas and of more quickly moving to a carbon-free, renewable future.
Interview highlights have been edited for brevity and clarity.
"The type of protection that you get for your health, your water, your air and your land should not depend on where you live."