New York, Pennsylvania courts uphold township fracking bans; Michigan next?

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Photo credit: Village of Dryden

by Ellis Boal, updated 7/14/04

On June 30 New York state’s highest court held that two rural home-rule towns lying atop the Marcellus shale can ban fracking by zoning.  This, despite a preempting New York statute which says the state oil-gas law

shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries….

The court in Matter of Wallach v Town of Dryden carefully noted:

The Towns both studied the issue and acted within their home rule powers in determining that gas drilling would permanently alter and adversely affect the deliberately-cultivated, small-town character of their communities.

Towns in New York are equivalent to townships in Michigan.

HISTORY OF NEW YORK CASE

Five years after a developer began acquiring oil and gas leases in Dryden New York, the town held a public hearing in 2011.  The result was a prohibition on use of land within its borders for oil-gas exploration, extraction, and storage.

The same year the town of Middlefield learned leases had been executed there.  The town board investigated, and decided to zone out oil, gas, and solution mining.  The board reasoned that the area:

is known worldwide for its clean air, clean water, farms, forests, hills, trout streams, scenic viewsheds, historic sites, quaint villages and hamlets, rural lifestyle, recreational activities, sense of history, and history of landscape conservation.

The town board concluded that industrialization, such as hydrofracking, would:

eliminate many of these features [and] irreversibly overwhelm the rural character of the Town.

According to the ruling, New York’s preemption statute governs only the “safety, technical and operational aspects” of oil and gas activities.  The court decided to follow a previous ruling about sand mining which held:

In effect, local laws that purported to regulate the ‘how’ of mining activities and operations were preempted whereas those limiting ‘where’ mining could take place were not….

The court added:

We see no inconsistency between the preservation of local zoning authority and the [state's] policies of preventing “waste” and promoting a “greater ultimate recovery of oil and gas”….

Of great interest, the decision was made without regard for the safety or dangers of the controversial extraction practices that sparked fierce opposition and led to the bans:

These appeals are not about whether hydrofracking is beneficial or detrimental to the economy, environment, or energy needs of New York, and we pass no judgment on its merits.

The 5-2 majority opinion was authored by Judge Victoria Graffeo, viewed generally as liberal.

PENNSYLVANIA DECISION

The decision follows on the heels of a similar decision of the Pennsylvania supreme court last winter in Robinson Township v Pennsylvania, striking down that state’s “Act 13.”

Act 13, put into effect in 2012, allowed wells, pipelines, impoundments, and seismic-testing explosives to take place “of right” in every zoning district, even residential ones.  One section of the law asserted the oil and gas laws “occupy the entire field of regulation, to the exclusion of all local ordinances.”

Six townships and a borough sued.

Four court justices concurred in striking down Act 13, as against three dissenters.  The four did not have unified reasoning.

The 3-justice lead opinion invoked the “public trust” doctrine in the Pennsylvania constitution, which requires all branches of government — including counties and townships — to consider in advance the environmental effect of any proposed action:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

The opinion held Act 13′s preemption provision required local governments instead:

to ignore their obligations under [the constitution] and further direct[ed] municipalities to take affirmative actions to undo existing protections of the environment….

In ringing tones the three-justice opinion added:

[F]ew could seriously dispute how remarkable a revolution is worked by this legislation….  By any responsible account, the exploitation of the Marcellus Shale will produce a detrimental effect on the environment, the people, their children, and future generations and potentially on the public purse, potentially rivaling the environmental effects of coal extraction….  Protection of environmental values, in this respect, is a quintessential local issue….

The one concurring justice’s view was that Act 13′s preemption violated constitutional substantive due process.  He wrote:

I believe that in a state as large and diverse as Pennsylvania, meaningful protection of the acknowledged substantive due process right of an adjoining landowner to quiet enjoyment of his real property can only be carried out at the local level. … [T]hese industrial-like operations include blasting of rock and other material, noise from the running of diesel engines, sometimes nonstop for days, traffic from construction vehicles, tankers, and other heavy-duty machinery, the storage of hazardous materials, constant bright lighting at night, and the potential for life- and property-threatening explosions and gas well blowouts.

The bottom line of all four justices is the same:  Townships and boroughs in Pennsylvania are now free to ban fracking.

IMPLICATIONS FOR LOCAL BANS IN MICHIGAN

Legal commentators in 2012 and 2014, writing without benefit of the New York decision, have concluded that prospects for local frack bans in Michigan are nil or dim.

Reporters in the popular media have said the same, except less carefully. MSU Extension mis-stated the key statute in 2012, and the Detroit News misquoted it in 2014.

I disagree.

Michigan’s oil-gas law is called “Part 615 of the Natural Resources and Environmental Protection Act” or “NREPA Part 615″ or simply “Part 615.”

Statutes, rules, regulations, parts….

The overarching Michigan statute governing the environment is the “Natural Resources and Environmental Protection Act” or NREPA. NREPA is divided confusingly into many articles, parts, and sections. In certain of the categories there are divisions, chapters, and subchapters. Some of the sections have subsections and even finer sub-categories.

Oil and gas are dealt with in article III chapter 3, subchapter 2, part 615, often called just “Part 615.” Part 615 has 37 sections and innumerable subsections.

One of the subsections allows the DEQ to “promulgate and enforce rules, issue orders and instructions” for enforcement, and to do anything necessary to “implement” the “subject matter” of Part 615, “whether or not” the subject matter is spelled out in Part 615.

“Rules” (sometimes also called “administrative rules”) are promulgated under Michigan’s Administrative Procedures Act, which requires public hearings and public comment in advance.

The rules are here.

DEQ has announced proposed revisions of the Part 615 rules.

The public hearings for these proposals are set for July 15 and 16 in Gaylord and Lansing. Anyone may attend and speak.

DEQ has other rules for contested case and declaratory ruling hearings. DEQ has proposed to rescind most of these rules. At this writing, a date has not been set for a public hearing.

As noted, the DEQ can also issue “instructions” for enforcing the rules. A listing of all these instructions is here.

In May 2011, two new instructions were issued related to fracking. One is about high volume hydraulic fracturing well completions. The other is about permit application reviews for wells that may be hydraulically fractured.

The term “regulations” has no strict definition in Michigan. Regarding oil and gas, often the term refers colloquially to both Part 615 and the Part 615 rules together.

The Michigan Department of Environmental Quality (MDEQ or DEQ)

has jurisdiction and authority over the administration and enforcement of [Part 615] and all matters relating to the prevention of waste and to the conservation of oil and gas in this state….

In Michigan and most states, usurpation by the state of power to regulate oil and gas activities is called “preemption.”  (In New York the term is “supersession.”)

Under preemption, a Michigan township or county is precluded from enacting an ordinance if it is in direct conflict with a state statutory scheme; and even if there is no direct conflict it is precluded if the state scheme “occup[ies] the field of regulation.”

Every state’s oil-and-gas law is slightly different.  The New York and Pennsylvania decisions do not bind Michigan courts.  But they will be highly influential, albeit in different ways.

The 3-justice lead opinion in Pennsylvania was authored by the court’s chief justice, viewed generally as conservative.

Even so, he sounded a clarion call, echoing the holding of our own Michigan supreme court in 1974.  The 1974 case held that our legislature would have violated the Michigan constitution had it not enacted NREPA for “protecting natural resources from pollution, impairment, and destruction.”  The court added:

But as the state has grown, and the demand for energy, the public interest has been threatened by casual planning of transmission lines and pipelines through unspoiled countryside.

Michigan’s constitution, unlike Pennsylvania’s, does not explicitly enunciate the public trust doctrine. Our state’s analogous provision holds:

The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.

This provision underscores the common-law public trust doctrine which Michigan and the federal courts have long recognized. But the failure of Michigan convention delegates to put the public trust doctrine in the constitution itself may blunt efforts to apply the three-justice Pennsylvania logic in this state. The concurring justice’s substantive due process theory, as understood in Michigan, might have more success.

SUBSECTION 205(2) OF THE ZONING ENABLING ACT

But the New York court’s approach is simpler.

Michigan’s zoning law is called the Zoning Enabling Act.  In two independent clauses, subsection 205(2) of the act prescribes preemption:

A county or township [1] shall not regulate or control the drilling, completion, or operation of oil or gas wells or other wells drilled for oil or gas exploration purposes and [2] shall not have jurisdiction with reference to the issuance of permits for the location, drilling, completion, operation, or abandonment of such wells.

Note that 205(2) does not claim to preempt bans or regulations by cities and villages.

(205(3) and subsequent subsections of 205 say a local ordinance shall not “prevent the extraction, by mining, of valuable natural resources from any property unless very serious consequences would result…”  But note these subsections apply only to extraction by mining.  Gas and oil are extracted by drillingDrilling and mining are different in Michigan law, governed by mutually exclusive subchapters and parts of NREPA. These subsections do not affect subsection 205(2).)

The restrictions of section 205(2) on counties and townships have to be considered in light of the state constitutional requirement that zoning powers (and all other local powers) are “liberally construed in [the counties' and townships'] favor.”

Describing this requirement in 1961, the year the state constitution was adopted, the convention commented:

Home rule cities and villages already enjoy a broad construction of their powers and it is the intention here to extend to counties and townships within the powers granted to them equivalent latitude in the interpretation of the constitution and statutes.

In section 205(2), by putting the words “location” and “abandonment” in the second clause but omitting them from the first, the Michigan legislature made the same distinction the New York court did: The state governs and preempts only technical rules for how oil-gas operations occur. But it allows counties and townships to “regulate and control” where they occur, ensuring the quiet enjoyment of land without a towering drill rig in the same neighborhood as single-family homes.

State oil-gas regulations do speak of “location” in the sense of providing isolation distances of structures within a surface facility (such as the required separation of a wellhead and a flare), or the separation of operations from roads, watercourses, and sensitive areas. Part 615 also says a well cannot in most cases be within 450 feet of a residential building. Isolation radii for other sensitive areas range up to 2000 feet.

Part 615 also speaks of limiting well locations generally to the “approximate” centers of “drilling units” so as to prevent the unnecessary wells and maximize efficient draining. The default size of a drilling unit is 40 acres.

But these “location” references are technical and quite circumscribed. By contrast, with a single exception involving group child care homes, Michigan zoning designates land via large multi-mile swaths, prescribing uniform regulations for districts designated as residential, agricultural, industrial, commercial, undeveloped, and the like.  Zoning is not about delimited perimeters around a center. And it’s not about efficient draining.

In other words unlike the DEQ, planning commissions and zoning boards take into account the community’s plan and character.  Communities can zone the broad areas where oil and gas operations — and all other industrial operations — may be located or abandoned. But DEQ “permitting” is done individually, well-by-well, with technical instructions specific to each well. As long as counties and townships don’t try to issue such permits they don’t enter a field “occupied” by DEQ.

The character of a township or county has nothing to do with the DEQ’s job anyway, which is “prevention of waste and … the conservation of oil and gas.” There are no references to zoning in Part 615. The only zoning requirements in the DEQ rules apply to residential zones so designated before 1993. Even in an area zoned residential before then, DEQ can hold a hearing and allow a flare over the local government’s objection.

To drive home the rule of non-preemption, in 2006 the Michigan legislature did voluntarily what the Pennsylvania supreme court ordered that state to do for Act 13. Michigan amended section 205(2) by removing explicit preemption language.  Until then, the predecessor of 205(2) had this clause at the end:

The jurisdiction relative to wells shall be vested exclusively in the supervisor of wells of this state.

The language dated from Public Acts 183 and 184 in 1943.

There is a Michigan decision upholding preemption, but it was decided in 1994, 12 years before the 2006 change.  The decision is no longer dispositive.  In any event, it did not concern location or abandonment.

FOSTERING THE INDUSTRY

Similar to New York, one overall purpose of Part 615 is to:

foster the development of the [oil-gas] industry along the most favorable conditions and with a view to the ultimate recovery of the maximum production of these natural products [oil and gas].

This provision, enacted in 1939, was part of a package oil-gas bill.  The Michigan Oil & Gas Association supported it as a “confidence” builder for the industry, according to a newspaper account of the day. It means that every time DEQ regulators make a decision large or small, and every time an issue comes before a judge or jury, they have to be thinking in terms of fostering the industry.

The New York court saw no contradiction between its decision and that state’s very similar policy.

THE INDUSTRY’S ARGUMENT FOR PREEMPTION

Why do Michigan and other states even have preemption statutes?  Preemption’s “sound basis” was explained by the Michigan supreme court in 1989, in the first of two decisions in the same case.  It relied on this factual finding:

Oil and gas are natural resources with fixed locations.  A gas field cannot be moved to a more favorable site.

The second decision in that case in 1990 reaffirmed the reasoning of the first one, and added that a township could “prohibit land use for [an above-ground] processing facility” altogether.

But with the recent advent of horizontal drilling in newly exploited types of rock formations, the “fixed location” fact is no longer actually a fact.

DEQ rules define the “well location” as its “surface location,” not the location of the gas or oil below. The two can be widely different.

In a well with a 2-mile-long horizontal fracking leg, the operator is free from an engineering standpoint to drill into the leg from a surface location at either end.  Other things being equal, no law would stop an operator from locating the surface hole arbitrarily, say, in a township where it had business dealings with officials.

There are in fact several DEQ-permitted frack wells with the ends of the horizontal legs in different townships.  Two wells — State Norwich 1-6 and 3-12 HD1 — were even permitted with the ends in different counties, Kalkaska and Missaukee.

Accordingly no longer can it be said that oil or gas locations are always fixed.  No longer is there always a factually “sound” basis for preemption.

SECTION 207 OF THE ZONING ENABLING ACT

A second section of the Zoning Enabling Act could also be seen as an obstacle to a local frack ban.  Section 207 says:

A zoning ordinance or zoning decision shall not have the effect of totally prohibiting the establishment of a land use within a local unit of government in the presence of a demonstrated need for that land use within either that local unit of government or the surrounding area within the state, unless a location within the local unit of government does not exist where the use may be appropriately located or the use is unlawful.

This section is inapplicable to oil-and-gas drilling. By its wording, the burden of proof of the existence of a “demonstrated need” would be on the operator which seeks to drill for oil or gas.  Unlike gravel and other similar commodities, oil and gas are not sold locally. They are sold on national and international markets.  An operator would not be able to prove that a well it wished to drill in one township would be for the purpose of fulfilling a “demonstrated need” in that township or in one nearby.

As the Michigan Public Service Commission explains it:

Natural gas consumed in Michigan comes from gas and oil fields located primarily in Michigan’s lower peninsula, the Texas-Oklahoma Panhandle, on and off-shore Louisiana, and Alberta, Canada. … Most of Michigan’s gas production is purchased by Michigan utilities for their customers, but some is also sold to gas marketing companies that sell gas outside of Michigan. Natural gas produced in Michigan represents about 15-20% of the total gas consumed in Michigan.

LOCAL UNITS OF MICHIGAN GOVERNMENT CAN BAN FRACKING

As noted, cities and villages in Michigan have long been free to enact local frack bans without controversy or legal obstacles.

There is controversy about counties and townships.  But the logic of the New York and Pennsylvania decisions is compelling here even if not binding, given the similarities of the state laws.

The Michigan supreme court showed itself recently to be friendly to the idea of local control. Legislation later undid that ruling, but only in the context of mining.

A courageous Michigan county or township, willing like Dryden and Middlefield to stand up to the industry and risk litigation, may soon be in the offing.

 


 

Ellis Boal is a lawyer in Charlevoix. Last year he won an injunction against 13 Encana wells in Kalkaska County, three of which in terms of water usage would have been the largest in the US.

 

Support growing for a Michigan fracking ban

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Michigan local leaders’ views on opposing fracking in new poll

A new statewide poll shows that Michigan local government leaders believe that community members and their local boards and commissions are more likely to oppose than support fracking in their communities.

The University of Michigan report (issued this month, with polling last December) indicates increasing statewide skepticism about fracking in Michigan. The Center for Local, State, and Urban Policy (CLOSUP) surveyed local government leaders in the state on issues related to high-volume horizontal fracking in their communities.  Local leaders from 1,353 Michigan counties, cities, townships, and villages were polled.

The Michigan Public Policy Survey estimates about 6% of local jurisdictions currently have  fracking operations or efforts to add them, and 13% of survey respondents said they or their neighbors are somehow affected by it.  Even so, the survey found the issue is an increasingly active topic of conversation.

Where fracking is an active topic, local officials believe that citizens are more likely to oppose (37%) than support (11%) it in their communities. They believe the same about their local councils or boards, 29% saying that their boards oppose fracking compared to 16% who said their boards would support it.

The survey respondents themselves — the chief elected and appointed officials — are more evenly split, with 36% opposing and 31% supporting high-volume horizontal fracking.

There were regional differences, with officials in the Upper Peninsula more supportive of fracking (54% support, 32% opposed), northern Lower Peninsula officials more split (37% support, 35% opposed), and officials in more populated southeast Michigan sharply in opposition to fracking (19% support, and 51% opposed).

Factors that respondents said influenced their decision were risks to water (57%), environmental damage (56%), health risks to citizens (47%), impact on property values (41%) and the influence of community organizations that are active on fracking issues (31%).

The CLOSUP report concludes that, among a range of Michigan energy options, fracking ranks near last in support from local leaders, well behind renewable sources such as solar, hydroelectric, and wind power.

These results back up earlier polling by the Pew Research Center which reported last fall that the more people learn about fracking, the more they oppose it.  Pew conducted polls in March and September 2013 and found a marked increase in Americans opposed to fracking. In September 2013 more Americans (49%) opposed increased use of fracking than favored it (44%), a dramatic change from March 2013 when support for fracking had exceeded opposition by 10 points (48 to 38%). The Midwest showed a similar trend with 32% Midwesterners opposed to fracking in March and rising to 48% opposed by September 2013.

The CLOSUP results are a good sign that advocacy for a ban on fracking and the reasons why fracking is harmful are getting through to more people—those elected and the rest of us.

If you are an elected official and you’d like to know more about fracking and why it’s important to ban the practice, please contact us.

Gasland 2, showing in a town near you

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Ban Michigan Fracking is co-hosting several screenings of the film Gasland 2. The screenings are free and open to the public. Donations to the co-sponsors are appreciated and welcome!

Watch the movie trailer herehttp://www.gaslandthemovie.com/about-the-film

Friday, March 21, Elk Rapids, 6:00 to 8:30 p.m. Historic Elk Rapids Township Hall. Co-sponsored along with Ban Michigan Fracking and Michigan Citizens for Water Conservation.

(Also Friday, March 21, Brighton, 7:00 to 9:30 p.m., the Livingston County Democrats are hosting a screening. Our Committee will be there making an announcement.)

Tuesday, March 25, Mecosta, 6:30 to 8:30 p.m. at the Morton Township Library. Co-sponsored by Michigan Citizens for Water Conservation and Ban Michigan Fracking.

Friday, April 11, Chelsea, from 2:30 to 5:00 p.m. at the Chelsea District Library. Co-sponosred with Ban Michigan Fracking and Michigan Citizens for Water Conservation.

Wednesday, April 23, East Lansing, from 7:00 to 9:30 p.m. at Edgewood United Church of Christ. Co-sponsored by Michigan Citizens for Water Conservation and Ban Michigan Fracking.

Wednesday, April 30, Hastings, from 5:30 to 8:00 p.m. at Hastings Public Library. Doors open at 5:00 p.m. Sponsored by Committee to Ban Fracking in Michigan.

Wednesday, May 14, Battle Creek, from 6:30 to 9:00 p.m. at First Congregational Church, 145 Capital Ave NE, Battle Creek, MI 49017. Co-sponsored by Michigan Citizens for Water Conservation, Committee to Ban Fracking in Michigan, Ban Michigan Fracking and Physicians for Social Responsibility–Michigan Chapter.

See the trailer:

 

Michigan’s oil-gas contribution to air pollution and global warming

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Last year a group of scholars led by Mark Jacobson at Stanford published a  study on the feasibility of converting New York State’s energy infrastructure to one using wind, water, and sunlight. Jacobson is with The Solutions Project, “a group of top scientists, visionary business leaders and cultural influencers with a mission of accelerating the transition to 100% renewable energy.”

The study proposes that New York switch to power produced 10% by onshore wind, 40% offshore wind, 10% concentrated solar, 10% solar-PV plants, 6% residential rooftop PV, 12% commercial/government PV, 5% geothermal, 1% tidal, and 5½% hydroelectric.

Natural gas (methane), touted by industry as a “bridge” fuel to renewable energy and now widely debunked as a “gangplank” off the climate precipice, was excluded as a recommended source for future energy.  Due to the effects of methane and pollutants that cause air pollution, it is not a near-term “low” greenhouse alternative, either in absolute terms or relative to coal.

The study compares the generation and transmission costs of wind, water, and solar (WWS), to those of fossil and nuclear energy sources including their externalities.

Jacobson’s team asserts that a complete transition to WWS would result in no associated environmental externalities.  No externalities in terms of bronchitis, heart disease, or asthma resulting from particulate matter and ozone in the air.  And none in terms of coastline loss, agricultural and fish losses, human heat stress mortality, increases in severe weather, or air pollution, all of which come from global warming.

Externalities are key. The study estimates annually averaged premature mortalities from particulate matter in New York at:  820 (low estimate), 3260 (medium estimate), 6480 (high estimate).  Estimates of premature mortalities from ozone are:  356 (low), 713 (medium), 1070 (high).

Michigan’s frack attack required by law

For 75 years Michigan’s oil and gas industry has enjoyed special-interest protection, written into the state law. The law requires the State to “foster the development of the [oil-gas] industry along the most favorable conditions and with a view to the ultimate recovery of the maximum production of  [oil and gas].” Requiring maximized production as a goal of of DEQ’s Office of Oil, Gas and Minerals means requiring it to maximize Michigan’s contribution to air pollution and global warming.

Fracking for natural gas is not part of our future. Depicted here are the locations for all 53 horizontal frack wells already permitted in Michigan.

The industry is just getting started in Michigan, plunking down exploratory wells throughout the Lower Peninsula, with 53 wells permitted already over the past three years. A network of thousands of wells across the Michigan landscape would change our state–and planet–forever, and not for the better.

Michigan’s contribution to global warming and planetary destruction

What exactly is Michigan’s contribution to the world crisis we now face?  The question will be answered for every state later this week at The Solutions Project website.

But on Monday Jacobson provided Ban Michigan Fracking with a Michigan preview:

  • Current air pollution premature mortalities per year in Michigan: 1600 (range of 530-2940).
  • Current air pollution health costs in Michigan: $14.7 billion/year (range of $4.8-26.7 billion/year).
  • Current health cost as % of state GDP: 3.9% (range of 1.3%-7.2%).
  • Year 2050 costs to the US due to Michigan emissions: $2.1 billion/year.
  • Year 2050 costs to the world due to Michigan emissions: $21.4 billion/year.

A portion of The Solutions Project infographic for the state of Michigan.

On February 14, The Solutions Project went live showing specific roadmaps for every state, including Michigan, to transition all energy sources to wind, water, and solar by 2050 using existing technologies.  Under The Solutions Project plan, fuel costs would drop to zero and healthcare costs and premature air-pollution mortalities would diminish significantly, as detailed for every state.

What are some of the benefits of switching to alternatives?

  • Year 2050 electricity cost savings/year due to converting to WWS in Michigan: $34 billion/year.
  • Year 2050 electricity cost savings/person/year due to converting to WWS in Michigan: $2800 /person/year.
  • Year 2050 total electricity + health + climate cost savings: $69.7 billion/year (range of $59.8-81.7 billion/year).
  • Year 2050 total electricity + health + climate cost savings/person: $5840/person/year (range of $5000-6800/person/year).

Additional information is at: http://www.stanford.edu/group/efmh/jacobson/Articles/I/susenergy2030.html .

The study’s conclusion recommends a number of first steps toward NY’s conversion to WWS, rather than natural gas. The first step in Michigan: Ban horizontal fracking.

Get involved in the Committee to Ban Fracking in Michigan’s ballot initiative campaign, http://letsbanfracking.org . It will end the requirement that Michigan foster the gas industry, and end the state’s horizontal fracking.

The Year in Review in the Ban Fracking Movement in Michigan

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Michigan’s frack industry: now at 53 high-volume frack wells

The People: 70,000 voters sign ballot initiative to ban fracking

By LuAnne Kozma

While the horizontal frack industry in Michigan grew by 23 wells in the past year, and pushed into new areas of the state, residents fought back in ambitious and far-reaching efforts to ban horizontal fracking and frack wastes statewide and a few decisions to curtail it locally.

The industry expanded to southerly counties in the Lower Peninsula. The current totals as of November 25, 2013 are: 53 high-volume, horizontal frack permitted wells in 18 counties: Antrim (1),* Cheboygan (2), Clare (1), Crawford (1), Gladwin (2), Hillsdale (6), Ionia (1), Kalkaska (22), Livingston (1), Midland (1), Missaukee (4), Montmorency (1), Muskegon (1), Oceana (2), Ogemaw (1), Osceola (1), Roscommon (2), Sanilac (3). Five applications are pending in 2 counties: Antrim (2) and Kalkaska (3).

*Antrim's Mancelona 1-28 HD1 frack well fell off the DEQ's list and into a paperwork black hole, its permit "terminated" and no longer considered "active" ... but the site clear-cut in the state forest still exits, the well drilled. Photo by LuAnne Kozma.

DEQ's High-Volume Hydraulic Fracturing Activity Map, dated 11/25/13

High-volume horizontal fracking is new to Michigan, the first wells established in 2010. This basic truth did not deter the Michigan Department of Environmental Quality’s Office of Oil, Gas, and Minerals (which is how we resolve to call the agency from now on) from repeating the bogus mantra that fracking has been going on in Michigan for 60 years and that 12,000 wells have been drilled and fracked. This statement misleadingly refers only to the vertical, conventional wells in the Antrim shale, not the new horizontal wells now being drilled and fracked in the Collingwood/Utica shale and A-1 Carbonate formations.

Thanks to grassroots activists and a few elected officials, the ban fracking movement and public awareness increased in every way. Meetings across the state reached people already interested in the issue.

Ban Michigan Fracking organized people to come to the state capitol in Lansing at the January 2013 state of the state address.

The Committee to Ban Fracking in Michigan the ballot initiative led by members of Ban Michigan Fracking and Michigan Citizens for Water Conservation took the ban fracking message to the streets to where people congregated at festivals, farmers markets, and other events. The Committee collected over 70,000 signatures from Michigan registered voters from all 83 counties, who signed on to ban horizontal fracking and frack wastes—enough people to fill MSU’s Spartan Stadium. The initiative is endorsed by an increasing number of organizations and individuals.

Corinne Turner, activist from Barry County in summer 2013, collecting signatures.

These face-to-face exchanges were conducted primarily by a volunteer force of over 500. Many people learned about the environmental harms of fracking—or even the word “fracking”– for the very first time. This was not an online petition that people could do from their computers or phones.

 

While the required number of signatures was 258,088 during the six-months from April to October, the Committee will begin a new signature-gathering phase when it raises enough funds. (Donate on LetsBanFracking.org) That simple fact—that the DEQ which is thought to “protect the environment” is actually expected to foster and favor the gas and oil industry–is a showstopper. DEQ continues to go around the state with its “Environmental” title while actually it is the Office of Oil, Gas and Minerals doing the talking.

People are also shocked to discover, when it ever is revealed at a public meeting at all, that the Department of Environmental Quality Office of Oil, Gas and Minerals also receives a 6.6% severance tax on oil and a 5% severance tax on gas produced in the state—in effect in business partnership with the oil and gas industry. It is the only part of the state’s environmental protection agency that is funded by the industry it regulates. To our knowledge, no horizontal high-volume frack well permits have ever been denied.

Ban Michigan Fracking learned in January that the 40,000 gallons of frack flowback from Encana's Excelsior wells – approved by the Department of Environmental Quality (DEQ) and spread on northern Michigan roads in 2012 – were much more hazardous than expected. The deadly chemical AI-2 containing a secret ingredient was put in a tourist campground on Lake Huron by the Mackinac Bridge. A separate flowback sample from the same complex tested the materials as radioactive. See entire story here.

In February,  Ban Michigan Fracking broke the blockbuster news (“Michigan’s 21 Million Gallon Frack Job”) that the Michigan frackers were using more water per well than any other frack well in the nation–20 to 30 million gallons, not the “5 to 8 million gallon” figure regularly being used to describe this new kind of fracking. We used actual industry records. The truth won out and the media and the DEQ started using the new numbers.

The approximately 60 horizontal frack wells permitted or pending in Michigan are poised to use as much water to frack than all 12,000 Antrim wells drilled in Michigan over the past decades combined.* Just five of Encana’s new wells are projected to use more than 132 million gallons. When adding up the rest, estimates go past 577 million. (*Assuming 12,000 Antrim wells used 50,000 gallons per well according to DEQ, which totals 600 million gallons of water). Clearly the new type of fracking in Michigan is water intensive beyond anyone’s imagination.

Oakland County Water Commissioner Jim Nash started hosting meetings in communities throughout Oakland on the subject of fracking with speakers from state agencies as well as knowledgeable grassroots anti-frack activists. One speaker, Joe Curry, a 30-year water well driller and member of the Michigan Groundwater Association from Holly, debunked the DEQ’s continuing erroneous narrative (see the video below) that fracking’s been going on in Michigan for 60 years and that there have been 12,000 wells and no cases of contaminations in Michigan. Audiences attending challenged the DEQ speakers who presented inaccurate information. For the DEQ/Curry point/counterpoint, see this video by Ferndale 115.

 

 

Dr. Christopher Grobbel also spoke to groups around the state, sharing his specialized knowledge of the actual contamination record of Michigan’s oil and gas industry. Grobbel once worked for the DEQ compiling its list of contaminated sites. He has since worked on the cleanups and as an expert witness in numerous lawsuits brought by landowners who have had oil/gas spills and contaminations on their property. Grobbel points out that since 1995, the DEQ no longer keeps track of contaminations publicly, making it difficult for the public to know the record except through expensive Freedom of Information Act requests or lawsuits.  Grobbel’s entire presentation is available HERE.

Richard Heinberg's 2013 book "Snake Oil: How Fracking's False Promise of Plenty Imperils Our Future" mentions Ban Michigan Fracking as part of the "massive grassroots backlash against fracking."

As if miffed that public opinion was turning against them at the forums and presentations, the DEQ’s Office of Oil, Gas and Minerals and the Michigan Department of Natural Resources (the department responsible for leasing state-owned mineral rights on both public and private land) held public meetings of their own in Troy, Muskegon, and Traverse City. The tactic backfired. Audiences now savvy to the recognizable misleading claims called the DEQ on them, holding up placards stating “B.S.” every time state officials uttered one at the Musekgon meeting. In Traverse City, Ban Michigan Fracking submitted 11 written questions. The speakers refused to answer any. A contingent of armed conservation officers monitored the audiences inside at each, and police officers were present outside the meeting locations.

 

Occupy Muskegon caught this moment at the DEQ/DNR meeting in Muskegon when the audience burst into laughter when the Oil, Gas and Minerals staffer stated that companies are required to clean up contaminations. Note the heavy armed guard presence behind the speakers:

Indeed during this time, public opinion was turning against the frackers. Pew Research Center issued findings from its survey, conducted in March and September 2013, that more Americans (49%) oppose increased use of fracking than favor it (44%). “Since March, opposition to increased fracking has grown significantly across most regions and demographic groups,” the Center reported. Back in March, support for fracking exceeded opposition by 10 points (48 to 38%). The biggest shift in public opinion occurred in the Midwest where those opposed to fracking grew 16 points from 32% to 48%. DEQ Office of Oil, Gas and Minerals was feeling the heat of that shift.

In May the DNR held one of its two annual auctions of state-owned oil and gas lease rights, leasing out 37,000+ acres in 17 Michigan counties. Activists attended in protest. While none were arrested, some were escorted out of the auction by conservation officers while the officers were asked “What are you conserving?” 

As fracking continued, the waste and water issues mounted. In June, local residents in Kalkaska living near frack wells experienced water well problems. Corinne Turner described the plight of these families and their lack of good water, Halliburton’s frac sand blowing through the air, covering everything in sight, and high noise levels in an insightful letter to the editor, Viewpoint: Fracking in Kalkaska should serve as warning for southwest Michigan. Encana ran out of water on the job site at the Westerman well and turned to local communities to purchase water.

Then a contamination incident happened, and industry was caught in the act. Encana’s subcontractor Team Services applied three tanker trucks full of oil and gas industrial waste onto roads in Benzie County in July, witnessed by a local organic farmer who happens to be a former oil and gas industry worker, familiar with the smell of petroleum waste. His nostrils burned even a day later. After the residents informed the county road commission and obtained test results, and we made some calls to DEQ, Ban Michigan Fracking broke the news.

Fewins Road still showing the darkened contaminated areas from the dumping of toxic "brine" in Benzie County in 2013. Photo courtesy of Bryan Black.

The tests showed benzene levels were 28 times higher, and toluene 1,000 times higher than legal limits. DEQ’s “investigator” was first told of the fact that he had an investigation to do by BMF. Days later, the local newspaper, Traverse City Record-Eagle was all over it and followed the story, eventually publishing an editorial chastising the DEQ. Team Services was told by DEQ to do better and tell the agency what they did. The company was not fined.

Shortly thereafter, Encana was cited, but not fined, for spilling 300 to 400 gallons of frack fluid at a well site in a separate incident. That slap on the wrist was front page news in Traverse City.

In fall 2013, a new horizontal frack well (Sherwood) was approved and drilled near Fowlerville in Livingston County, only 30 miles from Lansing, the state capitol, shaking things up further for residents in the more populated southern counties of Michigan.

Sherwood well in Livingston County. Photo courtesy of Paul Kato.

New local groups formed in 2013, such as Don’t Frack West Michigan in the Muskegon area, Manistee Water Guardians, and Fowlerville Fracking. Residents in Lenawee County follow the oil and gas industry’s drilling operations in Adrian on a blog as do Washtenaw county residents in Saline and Lodi.  The conventional oil wells (over 40) in the Irish Hills in Jackson and Lenawee Counties, where concerned residents held many meetings in 2012, may become another high-volume frack area once the industry goes after the Collingwood/Utical shale under the formations currently being drilled. Recently two Class II injection wells were approved by EPA in Norvell Township, Jackson County to handle all the wastes produced by West Bay, despite local opposition.

Fowlerville area residents are up in arms about the Sherwood well. They held numerous informational meetings, demanding details from the DEQ and elected officials, and are gathering more interest among neighboring communities on how to prevent the next ones that are sure to come.

Livingston County residents protested the Sherwood horizontal frack well in November in downtown Fowlerville. Photo courtesy of Andrea Rude McKenzie

In the strongest local action by a Michigan municipality to date, West Bloomfield Township extended its one-year moratorium on all drilling operations for another year into February 2014.  Several communities passed resolutions (which are not binding ordinances) calling for statewide and national bans on fracking.  Still others are seeking a regulatory route to restrict some aspects of the horizontal fracking industry, working with the organization FLOW, which do not ban or otherwise prohibit the drilling and fracking operations. Cannon Township–in Kent County where 10% of the land is leased to the oil and gas industry–which has the same legal counsel as Encana (Mika Meyers Beckett & Jones), passed a six-month moratorium to regulate activities ancillary to drilling. 

The group Food and Water Watch worked on an ordinance for Ann Arbor and organized a meeting of local organizations. The Michigan Sierra Club held informational meetings around the state and stayed out of the local ordinance effort. While some of its members worked on the ballot initiative campaign, its leadership remained firmly against a ban and instead worked for regulations on the frack industry, using rhetoric about making the process “safe” and “proper disposal.”

Wastes from horizontal drilling and fracking accumulated throughout 2013 in epic proportions compared to conventional drilling. Like other states, Michigan is full of toxic injection wells. It has 1,460 Class II injection wells used specifically for oil and gas wastes.

One of the many injection wells used to dispose of horizontal frack wastes in Michigan, the Wlosinski #2-27 SWD injection well in Kalkaska County. Photo by LuAnne Kozma.

The millions of gallons of toxic waste that is the water-sand-chemical soup that gets pumped down the frack well partly comes up (for disposal elsewhere) and some of it stays below in the frack well itself, creating a toxic injection well site at each and every horizontal frack wellhead.

From EPA website 1/11/14.

In addition to liquid waste, the drill cuttings and drilling muds used at each frack well site are also toxic wastes. These are disposed of on site in large pits, sometimes dug beneath the water table (for example, see the Schick 1-7 HD well permit, Clare County), solidified on site or trucked off to local landfills such as the Crowl Solid Waste Disposal landfill in Gladwin and the Waters Landfill in Frederic. No testing is done for radioactivity.

Lawsuits started up against the industry, the Michigan Public Service Commission, the Michigan Department of Environmental Quality Office of Oil, Gas and Minerals, and the federal Bureau of Land Management:

  • Ban Michigan Fracking’s Ellis Boal started a case for Crawford county residents in March to stop Encana gathering lines connecting two frack wells to a pipeline. The public service commission denied their claim without considering the environmental consequences and the plaintiffs are appealing.
  • Boal also sued for a Kalkaska resident, to stop 13 huge Encana wells permitted by the DEQ in the state forest. The company was trying to put several wells too close together, possibly inducing interference between the wells. In October, a judge enjoined them, dependent upon the plaintiff submitting an administrative appeal under part 12 of DEQ rules. See: Judge Stops US Record Frack Wells in Michigan
  • A suit for two Gladwin County residents to compel the DEQ to stop importing the “Halliburton loophole” into Michigan law and treat frack wells under the rules for injection wells is pending in the Michigan court of appeals.
  • A couple in Allegan County brought suit against the US Department of Interior and the Bureau of Land Management. claiming that the agency violated the National Environmental Policy Act by failing to prepare an Environmental Impact Statement and using a flawed environmental assessment. The suit seeks to set aside the leasing out of the Allegan State Game Area for gas and oil drilling.
  • Michigan Land, Air, Water Defense, a local group in Barry and Allegan counties, sued in 2012 challenging the state’s Department of Natural Resources’ approval of mineral rights leases in state game areas, and received a judge’s ruling in 2013 dismissing part of the case and transferring the rest to a different judge. 

In general these well-meaning suits try to get some short-term or other results, such as sparing certain places from fracking or temporarily halting operations. But, in the main, they concede the most important point to industry, continued permission to drill and frack.

In response to public concern over Michigan’s fracking and offensives to ban horizontal fracking, the governor got a university behind him. Snyder hailed a blue ribbon committee study to be conducted by the University of Michigan’s Graham Institute. The study’s steering committee consists of gas and oil industry representatives, DEQ Office of Oil, Gas and Minerals staff and two non profit organizations, Michigan Environmental Council and Tip of the Mitt Watershed Council. Both NGO’s are publicly pro-gas, anti-ban (or even moratorium) and state they want “seats at the table” with DEQ. The study is one of those tables. At its March press conference in which the lead investigators stated the study was to gather information to “minimize negative impacts,” it was clear that their efforts would not consider banning fracking, but rather, enable it. In April the U of M held a public presentation it called “Fractopia Town Hall” featuring a speaker from the gas industry-PR group Energy in Depth, an Office of Oil, Gas and Minerals regulator, an engineering professor who led one of the technical reports, and the pro-”regulated fracking” Michigan Environmental Council.

Michigan Chamber of Commerce placed over 70 of these billboards in an attempt to defeat the Committee to Ban Fracking in Michigan's ballot initiative. Photo by LuAnne Kozma.

In addition to this governmental, academic and NGO push-back to the ban fracking movement, the Michigan Chamber of Commerce launched a frontal attack with a political campaign of its own in an attempt to defeat the ballot initiative. Using its already formed ballot question committee called PAC II, the Chamber raised over $427,000 mainly from gas and oil companies for a series of press releases and website aimed at the Committee, calling the ballot proposal “dangerous” and the Committee’s 500 volunteers—and we suppose all the 70,000 voters who signed it–”extremists.” To buttress its view that gas is safe and “environmentally friendly,” the Chamber’s anti-ballot initiative campaign put 70+ billboards around the state.

Michigan residents take ban fracking message to new heights in September over a busy highway overpass:

In the midst of the citizen-led ballot initiative for a legislative ban, Michigan House Democrats rolled out a set of bills in the summer to provide more regulations for the frackers and deflect criticism that they are not doing anything about fracking. The bills do not seek to ban fracking and they did not get out of committee. In the push for “tougher regulations” this is often a ploy by so-called environmental groups who want a “seat at the table” to make deals or “common sense reforms” rather than trying to protect the public from the greater harms of fracking by stopping its practice. Some of the lawmakers promoting the bills also spoke favorably about the gas and oil industry and do not want to interfere with their operations. The bills are:

  • HB 4899 for public hearings and comments for frack permits.
  • HB 4900 for chemical disclosure.
  • HB 4901 for study of fracking impacts.
  • HB 4902 for presumption of fracker liability if chemicals or tracers are found in nearby water.
  • HB 4903 for water withdrawal assessment tool.
  • HB 4904 for county/township regulation of frack wells.
  • HB 4905 for prohibition of frack flowback on roads for dust suppression.
  • HB 4906 for increasing setback requirements to 1000 feet.

In light of the DEQ’s position in the injunction against wells in Kalkaska, HB 4899 is already partially the law.

One of seven Technical Reports by University of Michigan--steered by the gas industry.

The University of Michigan’s study finally came out in September. Its seven technical reports refused to acknowledge the constitutional right that Michigan voters have to ballot initiative when describing what Michiganders can do to make policy or legal decisions on the issue of fracking. The brief mention of the Committee to Ban Fracking in Michigan’s ballot initiative was erroneously referred to by its 2012 effort, not its 2013 legislative initiative, and referenced our website, not the Committee’s. (It was corrected later). Two of the study’s steering committee members donated funds to the Michigan Chamber’s campaign against the ballot initiative. None of them donated money for the ballot initiative. See our earlier story here. We recommend reading the reports with scrutiny.

In October, documentary filmmaker Josh Fox, creator of the films  Gasland and Gasland Part 2, appeared in Royal Oak at the Main Art Theatre for the free screening of honoring the Committee to Ban Fracking’s 70,000 signatures. Fox called the campaign’s accomplishment “incredibly inspiring.” Over 300 people attended.

 

Andrea McKenzie created a short video of the event, below:

Josh Fox in Michigan from Andrea McKenzie on Vimeo.

The DNR held its fall auction in October, leasing out state-owned oil and gas mineral rights to 11,000+ acres in 12 Michigan counties, including Au Sable River’s “Holy Waters.” Alarmed, mainstream groups lobbied the agency. DNR reversed itself, prohibiting drilling from the surface of the “Holy Waters” area but allowing drilling underneath. Michigan Environmental Council lauded the decision, saying some areas are more worthy of being frack-free.

Near the end of the year, the Office of Oil, Gas and Minerals announced new proposed administrative regulations regarding water, monitoring, reporting, and chemicals. Privy to a draft, Sierra Club hailed the new rules as “baby steps in the right direction.” The State’s October announcement omitted mention of changes eliminating requirements for exceptional spacing and interference, and the new ability of frackers to drill and frack first and then force mineral rights holders into a compulsory pool. In November DEQ revealed the language on its website. This means the frackers can build the gallows first, then hold the trial: they can drill and frack, and after the damage is done, force the pooling of the mineral owners, whether they leased their lands to the gas and oil companies, or not.

2014 is shaping up to be a time for  the DEQ Office of Oil, Gas and Minerals and their many enablers to try to pacify opposition and corral Michiganders into accepting more “regulated fracking” while they continue to foster the development of the industry along the most favorable conditions. But the ban fracking movement will grow and raise ever-increasing awareness. Unfortunately, a lot of Michigan residents are going to suffer from the impacts of more Michigan horizontal fracking, the enormous amount of frack wastes it generates, depleted water supplies, and the industrialization of their communities to their health, their environment, their property and their livelihoods until we ban the practice. With 70,000 voters with us for a ban…. we are gaining momentum.

Concerned Michigan residents in Kalkaska protesting the horizontal frack wells in the epicenter of Michigan's fracking boom, October 2013. Photo courtesy of Manistee Water Guardians.

(Updated 1/19/14: Respectmyplanet.org, a new database website emerged with photos of Michigan deep frack sites and data from the DEQ. It withdrew its support for a ban on fracking clarifying that its mission is to ”educate the public about locations of environmental concern and education about  Hydrogen as a clean renewable fuel source.” It states on a video on its website fracking can contaminate water “if not done properly.”

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Live, in Royal Oak: Josh Fox and Gasland II

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Ban Michigan Fracking is pleased to co-host a free screening of the film Gasland Part II, with special guest filmmaker Josh Fox who will join us for the evening for an question and answer session after the showing.

There are no reserve tickets. Please come early and line up outside the theatre. First come, first serve, but Committee to Ban Fracking circulators will have a reserve section up front.

Donations to Committee to Ban Fracking in Michigan, the ballot initiative, will be welcome at the door, and online at: www.letsbanfracking.org.

For more information contact LuAnne Kozma: 231-944-8750

National poll: More Midwesterners opposed to fracking than in favor

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Graph from the Pew Research Center report, September 4-8, 2013.

No wonder the industry is sweating it.

The more people learn about fracking, the more they oppose it. And today, more Americans (49%) oppose increased use of fracking than favor it (44%). That was just one of the findings released by the Pew Research Center, who conducted polls in March 2013 and September 2013. “Since March, opposition to increased fracking has grown significantly across most regions and demographic groups,” the Center reported.  Back in March, support for fracking exceeded opposition by 10 points (48 to 38%).

Biggest increase in opposition to fracking is in the Midwest

The most significant finding to us at Ban Michigan Fracking is that in the Midwest 32 % opposed fracking, and that rose 16 points to now 48% of Midwest people opposing fracking in September 2013, (while 47% favor it). That is a huge shift in public opinion.

On-the-ground activism is making a difference

In the same six-month period, hundreds of volunteers with Committee to Ban Fracking in Michigan have been throughout the state, collecting signatures from Michigan voters on ballot initiative petitions to ban fracking and frack wastes. At all meetings held by the DEQ or DNR, the Committee to Ban Fracking in Michigan petitioners were there, clipboards in hand. At county fairs, farmers markets, art festivals, musical concerts, sporting events, picnics, and parades, the Committee to Ban Fracking has taken the ban message and the direct democracy approach to banning fracking. Word seems to be getting out.

 

UM Graham Steering Committee In Financial Conflict Re Fracking

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The University of Michigan’s fracking study’s steering committee members contributed to Michigan Chamber of Commerce’s political campaign against the Committee to Ban Fracking in Michigan‘s ballot initiative… and an analysis of the Committee’s campaign–or anything about Michigan’s ballot initiative process–is nowhere to be found.

One of 7 technical reports by U of M--steered by the Michigan gas industry.

With great fanfare, the University of Michigan’s Graham Sustainability Institute finally released technical reports as part of its integrated assessment of hydraulic fracturing in Michigan on Sep 3. Along with an overview, the seven reports cover fracking technology, geology/hydrology, environment/ecology, human health, policy/law, economics, and public perception.

The reports — three months late according to the schedule — give no attention to the ongoing campaign of the Committee to Ban Fracking in Michigan for a veto-proof ballot initiative to ban high-volume horizontal fracking.  Instead the overview just assumes “future hydraulic fracturing treatments will likely be of very high volume,” so Michigan better get ready.

Mentioned prominently, both in the overview and the report on policy and law, are several regulatory reform bills now in the legislature.  They concern water withdrawal, chemical disclosure, and landowner protection.  Similar bills were introduced in the previous term.  No hearings were held and they died.

Groups Seeking a Ban on Fracking

One reference to the Committee to Ban Fracking in Michigan did slip into the Public Perceptions report.  The mention was sloppy.  Instead of this year’s effort for a legislative ballot initiative, it referenced last year’s very different campaign for a constitutional amendment.  And there is no link for interested readers to learn more at the initiative’s website.  See http://letsbanfracking.org . (The report cites our banmichiganfracking.org website as the source on December 2013–which hasn’t happened yet).

The Committee to Ban Fracking in Michigan, one of two prominent groups seeking a ban on fracking, is conducting a highly-visible statewide ballot initiative in 2013 that the U of M didn't notice much. Washtenaw county coordinator Nancy Witter collects signatures at a booth at the Ann Arbor Art Fairs in U of M's backyard, July 2013. Photo by LuAnne Kozma. Below: Video of Committee to Ban Fracking's action on September 13.

In a section describing the differences between the pro-regulation/pro-frack groups such as Michigan Environmental Council and Tip of the Mitt Watershed Council, both of which sit on the study’s steering committee, and those groups seeking an outright ban, is a discussion of our group, Ban Michigan Fracking (see pages 10-11, Public Perceptions Technical Report) as one of “two prominent groups” seeking a ban on fracking.

Stopping Fracking Has Public Support in Michigan

But the report did notice the campaign goal has significant public support.  It cited Michigan’s only public opinion poll about fracking, which was conducted by a section of UM’s Ford School of Public Policy in October 2012, nearly a year ago.  When respondents were asked if they support or oppose fracking, view it positively or negatively, et cetera, they were all over the lot.  http://closup.umich.edu/files/nsee-fracking-fall-2012.pdf .

But when it came to the bottom line — policy options for the state — a 52% majority agreed that Michigan “should establish a moratorium on hydraulic fracturing,” as against 41% who disagreed.  Slight majorities also disapproved of how both the governor and legislature have “handled the issue of natural gas drilling in the state.”

The solid results are the more striking when the questions are examined closely.  The Ford School pollers were well aware of the distinction between fracking in traditional vertical bores, and fracking in new and more controversial horizontal bores.  But the questions did not make that distinction.  The majority was for a moratorium of all fracking, even including the traditional vertical kind which the initiative does not target.

The Graham assessment is integrated and the lead authors read each others’ reports.  They all knew of the Committee to Ban Fracking in Michigan’s ban initiative, and they all knew stopping fracking had public support.

This is the entryway to the financial conflict which fatally wounds the assessment’s credibility.

Trouble In The Ivory Tower

The Graham assessment is chaired by a steering committee, including Governor Rick Snyder’s senior strategy advisor, along with academics, industry representatives, and pro-regulated fracking environmental groups.  According to the project timeline, in the spring this committee had a meeting with the lead authors of the technical reports.

Consider two of the industry people on the steering committee, John DeVries of the law firm Mika Meyers Beckett & Jones (which represents Encana in fracking cases in Michigan), and Gregory Fogle who owns Old Mission Energy.  Together they speak for the Michigan Oil and Gas Association (MOGA), helping to steer the assessment.  They were quoted in a UM press release last fall announcing the Graham study.  DeVries in particular claimed the study would be “unbiased.”

Each of them — Fogle on June 13 through his company and DeVries on June 17 through his law partnership — personally contributed $500 to the Michigan Chamber of Commerce’s “PAC-II” ballot question committee (Secretary of State ID # 513425) which vociferously opposes the ballot initiative with a campaign of their own called “Protect Michigan’s Energy Future.”  PAC-II has put up billboards around the state.

John DeVries and Gregory Fogle--U of M frack study steering committee members-- contributed to the political campaign for these billboards all over the state aimed at defeating the Committee to Ban Fracking in Michigan's ballot initiative. Photo by LuAnne Kozma.

On May 8 the Chamber put out a press release denouncing the initiative as dangerous, emotional, and extremist.  A few weeks before, on April 9 Deb Muchmore, speaking for MOGA, said: “We are taking the initiative seriously….” .  Blasted across the Michigan news media, the Michigan Chamber of Commerce’s emerging campaign was highly visible.

On May 20 MOGA itself gave $10,000 to PAC-II.  Total of the three contributions:  $11,000, out of $324,525 collected in the second quarter of 2013.  See Ban Michigan Fracking’s earlier reporting on this.

The PAC-II filing became public on July 26.  The exact date of the steering committee’s meeting with the lead authors is not known.  Originally it was scheduled for late April, two months before the original target date for the reports.  But given the three-month delay in releasing the reports, probably the meeting was also moved back, closer to the time-frame when MOGA and its minions were taking a swing at the ban initiative.

Disclosure of financial bias or potential financial bias is traditional in academic circles.  Fogle and DeVries could no longer claim to be materially unbiased.  They would have announced their contributions and political activism — or intended activism if the contributions had not yet been made — at the meeting.  Then they should have resigned.  But everyone heard it, excused it, and kept it quiet.

Alternatively, Fogle and DeVries may not have come clean at the meeting.  In that case the Institute itself should have removed them for lack of candor, the day Graham learned of the contributions.  The date it learned is not known.

The overview and technical reports issued on September 3 did not inform readers of Fogle’s and DeVries’s conflict. At this writing they are still on the steering committee.

Natural Gas Is A Special Interest In Michigan

There is another part of the ban initiative which the technical reports similarly refused to acknowledge, equally important as the ban itself.

Back in 1939 oil and gas production was considered environmentally benign.  The main worry was just fire and blowouts.

That year the state codified an overall policy requiring DEQ regulators and the courts to construe the law “to foster the development of the [oil and gas] industry along the most favorable conditions and with a view to the ultimate recovery of the maximum production of these natural products [oil and gas].”

Under the policy, whenever an environmental regulator or a judge encounters an ambiguous situation not specifically covered by a law or regulation, he or she has to opt for what the industry wants.  The DEQ may not even treat the industry neutrally, as other agencies do.  Oil and gas is a mandated special interest.

Otherwise stated, the policy means regulators are to foster industry profits, and maximize Michigan’s contribution to global warming.

Policy And Law

Of all the Graham technical reports, the most important was that on policy and law, whose lead author was Sara Gosman of the UM law school.  That report quotes the 1939 policy and its preamble, uncritically and in full. Unlike in 1939, fossil fuels today are a recognized hazard.  The Committee to Ban Fracking in Michigan’s ballot initiative would remove special treatment for oil and gas, and substitute a requirement that the DEQ “protect human health and water.” The DEQ after all is supposed to be a department of environmental quality, not a department of industrial quality.

Presumably at the behest of the compromised steering committee, the Gosman report makes no mention of the seemingly popular ballot initiative, nor even of the power of the people to force a vote of all Michigan voters, bypassing elected officials. Under state and regional trends, other states’ ban and moratoria are identified. Gosman writes about “prioritized pathways” to guide future policy options, including options for “public participation in governmental decisions on hydraulic fracturing” . . .  but not the most obvious one of all spelled out in the state constitution that Michigan voters readily make use of–direct democracy by initiative and referendum.

With the opponents of the Committee to Ban Fracking in Michigan’s ballot initiative directly steering the U of M Frack Study, it’s no wonder why.

The Committee to Ban Fracking in Michigan’s campaign collects signatures through October 1, 2013. Volunteer or donate at www.letsbanfracking.org.

To make a comment on the U of M’s Graham Institute’s website about the hydraulic fracturing reports go here. The comment deadline is October 7, 2013.

 

Michigan, take a cue from Britain and Ireland: Don’t Frack Our Future

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Frack Off UK has produced a fantastic animated YouTube video, called “Don’t FRACK Our Future, Doreen’s Story.” Like Michigan, the UK is facing the prospect of unprecedented shale gas drilling and fracking. They look to the U.S. to show just how bad fracking is.  We recommend it for Michigan teachers, professors and students. Please share widely!

Below is their description of the video short:

Unconventional gas exploration is threatening Britain and Ireland. Licenses and planning applications have already been granted by the Government with little or no community consultation. The scale of the industrialisation and impacts are never discussed.

This film charts Doreen and John’s journey from the shock of the drill rigs arrival to the sickening realisation that their lives and the lives of their family and friends will be profoundly affected. They live in Lancashire within sight of a shale gas well that is scheduled for hydraulic fracturing. Hear more from Doreen here:http://youtu.be/KpL5zbNqthg

Like Doreen and John, individuals and communities across the UK are realising that the only way to stop this industry is to inform and empower their community and stand together for a better future.

Saying “No” to unconventional gas opens up many alternatives. Saying “Yes” or doing nothing leaves us facing a future where we are still dependent on fossil fuels with polluted air and water, and thousands of leaking gas wells across the countryside.

Find out how this will affect you, your family and your community. Find out how you can take action to stop the industrialisation of the countryside, pollution of air and water and plan for a better future. You can make a difference. A strong well organised community is the best defence against this industry.

Links:
Check the map: http://frack-off.org.uk/locations/
Find out more: http://frack-off.org.uk/start-here/
Start a group in your area: http://frack-off.org.uk/local-group-s…
Script & References: http://frack-off.org.uk/dont-frack-ou…
Extended Interview: http://youtu.be/KpL5zbNqthg

Credits:
Animated by Dermot O Connor, http://www.incubatepictures.com
See Dermot’s masterpiece (about growth and energy) “There’s No Tomorrow” here: http://youtu.be/VOMWzjrRiBg and animation tutorials here: http://www.lynda.com/search?q=dermot&…
Foley & Music producer: Greg Ford, Greg Ford Company Inc.

 

Slaying the faulty studies: DOE’s “happy thought” “study”

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by Steve Coffman, New York
Printed with permission to Ban Michigan Fracking

 

 

The good news was so good that the U.S. Department of Energy (DOE) couldn’t wait to tell the world. “Federal hydrofracking study shows no contamination of drinking water in Pennsylvania!” the Associated Press dutifully headlined the DOE study that proved nothing of the kind.

What the article actually documented was that, from a sample of one out of tens of thousands of  fracked Pennsylvania wells, “preliminary: results from an “ongoing study” found no fracking chemical markers in the drinking water above.

The article quotes Duke University scientist Rob Jackson, who was not involved with the study. “He called it a ‘useful and important approach’ to monitoring fracking, but he cautioned that the single study doesn’t prove that fracking can’t pollute, since geology and industry practices vary widely in Pennsylvania and across the nation.”

Later in the article, “Jackson wondered whether the unidentified drilling company might have consciously or unconsciously taken extra care with the research site, since it was being watched. He also noted that other aspects of the drilling process can cause pollution, such as poor well construction, surface spills of chemicals and wastewater.”

It should be noted that Dr. Jackson was part of a peer-review Duke University study that found “evidence that natural gas escaped from some wells near the surface and polluted drinking water in northeastern Pennsylvania.” Jackson’s suggestion that DOE may have cherry-picked its sole-studied well, or that the unnamed gas company may have led DOE to a pre-selected sample is cautionary indeed.

If this seems unjustly conspiratorial, consider that the DOE study was conducted by the National Energy Technological Laboratory (NETL). So who are they?

Well, NETL just happens to be owned and operated by DOE, and its mission, as stated on its own website asserts that: 

“NETL implements a broad spectrum of energy and environmental research . . . enabling domestic coal, natural gas, and oil.”

Certainly no reason to look for conflict of interest there! It is interesting, though, that the “preliminary result of this ongoing study” should be seen as so groundbreaking that it required an immediate press conference and PR interview with Kathryn “Fracking-Queen” Klaber. Or that it was released to all major news outlets despite the disclaimer near the end of the article:

 “On Friday, DOE spokesman David Anna added that while nothing of concern has been found thus far, ‘the results are far too preliminary to make any firm claims.’”

So, I guess “Federal hydrofracking study shows no contamination of drinking water in Pennsylvania” isn’t a firm scientific claim then, but just a corporate happy thought.

Well, thanks, DOE, for the terrific sneaky preview. And, for what it’s worth, in my preliminary opinion you’re doing a crackerjack job of fulfilling your mission—to enable the gas industry, despite the facts or good scientific method. 

–Steve Coffman  7/23/13

Thanks Steve, for uncovering and writing about this and offering it to our website.