Commission, residents discuss gas drilling protections
Pocahontas County doesn't have a gas drilling problem. It has a democracy problem.
That was the premise of a presentation Monday morning before Pocahontas County Commissioners and members of the public by Ben Price, of the Community Environmental Legal Defense Fund, based in Carlisle, Pennsylvania.
Price was invited by the commission to discuss steps the county could take to protect human and environmental health with the prospect of natural gas interests angling to tap into the Marcellus shale that underlies much of the Northeast and Mid-Atlantic region.
More than 20 county residents packed into the County Commission room at the courthouse to hear Price speak and to voice their own concerns about gas drilling in Pocahontas County. Of particular concern to many is the practice of hydraulic fracturing, or hydrofracking, used to release natural gas from the Marcellus shale. The process can require millions of gallons of water for a single well and involves a mixture of industrial chemicals in the injection process. In many cases, large ponds are constructed at well sites to contain the mixture of used water and chemicals on the land's surface.
Industry representatives contend the practice poses no threat to groundwater, as the Marcellus shale lies thousands of feet below drinking water aquifers. However, a recent study by Duke University on drinking water wells located near gas wells has raised concerns about the potential for contamination to migrate through cracks in the bedrock or well casings. In that study, explosive levels of methaneﾗa component of natural gasﾗwere found in some drinking water wells. Not surprisingly, gas industry representatives have questioned the methodology of the Duke University study.
An outcrop of Marcellus shale occurs in the eastern part of Pocahontas County, running northeast to southwest.ﾠ The shale layer quickly dives underneath the surface to the west and north.ﾠ At Marlinton the Marcellus shale is more than a mile below the surface.ﾠ According to data from the West Virginia Department of Environmental Protection, the layer of Marcellus shale under Pocahontas County is 60 to 80 feet thick.ﾠ
Price said the CELDF has worked with municipalities and community groups to help them gain control of issuesﾗsuch as hydrofrackingﾗthat would have direct local impact. With the growing interest in tapping the gas reserves trapped in the Marcellus shale in the past three years, Price said CELDF's phone has been ringing off the hook.
Rather than vilify the gas industry or those who choose to sign potentially lucrative gas leases, Price pointed to state and federal laws that have given priority to industrial interests over the rights of individuals and authority of local governments.
ﾓPeople would come to us and say the attorney for their municipality has told their elected officials that they are preempted (by state law)ﾗthey can't do anything,ﾔ Price said. ﾓThe best they can do is to zone.ﾔ
Price acknowledged that Pocahontas County has no zoning ordinances in place.
ﾓEven if you had it, the theory of zoning isn't that you get to say 'no' to projects that might be harmful to your community,ﾔ said Price. ﾓYou get to say 'where.'ﾔ
ﾓYou get to say, through zoning, we'll sacrifice this part of our community and save this part,ﾔ he continued.
In communities that are grappling with potential environmental and health threats through zoning, Price described the proposed zoning ordinances he sees as ﾓterms of surrender.ﾔ If a community makes those terms too strong, it may risk a lawsuit from industry interests, Price added. Faced with the threat of a lawsuit, Price has seen local officials in Pennsylvania rescind or water down the protections they initially put forth for their communities.
ﾓDeciding on the best deal you can get is something short of self-governing, and it's something short of consent of the governed,ﾔ Price said.
ﾓIf the industry is determined by the community itself to pose a threat greater than what they're willing to allow their children, their property values, their natural environment to be exposed to, and then they're told they have no authority to stop it, this is the context of the consent of the governed being denied,ﾔ Price continued. ﾓThis is the context for local self-governanceﾗas a right of peopleﾗbeing denied.ﾔ
The difficulties of communities seeking to block potentially harmful industries from setting up shop have been compounded by the conventional approach of many environmental groups, Price said.
The usual approach has been to scrutinize the permit applications and procedural actions for a proposed project and find the deficiencies and any failures to follow state regulatory law. This approach might be effective at overturning permits and halting an operation for a time, but in the end, Price noted, many industrial interests simply refile their applications with the necessary revisions.
The effect is that environmental groups have been providing a free legal service for the projects they oppose, Price said, by scrutinizing the applications so thoroughly. The industry interests can then file air-tight applications that follow the letter of state and federal laws and regulations.
The CELDF, while it had a strong track record of having permit applications halted or permits themselves overturned during its first three years of operation, found itself in this same situation, Price said.
ﾓThe fact was, we didn't accomplish our mission,ﾔ he explained. ﾓOur mission was to help people implement the policies and protect their communities in the way that self-governance should be authorized to do.ﾔ
Around 1998, Price said, CELDF adjusted its approach.
For Pocahontas County Commissioners, who have been wrestling with the prospect of Marcellus shale gas extraction, Price outlined three possible courses of action: do nothing, work to improve existing state laws and regulations, or adopt an ordinance that asserts the rights of county citizens.
The first two options, Price contended, would do little or nothing to protect community health from the potential effects of gas extraction and the current practice of hydraulic fracturing.
ﾓIf you do nothing, you'll get fracked,ﾔ Price said. ﾓIf you try to use existing rules and regulations, you'll get fracked, because to regulate is not to say 'no' to the destruction. It's to regulate the rateﾗhow fast it happens. That the best you can do.ﾔ
Even if a local government and industrial go to court over the regulatory issues, the scope of their arguments is limited, Price explained.
ﾓWhen you go to court under regulatory law, you're going to be hiring your expert witnesses, and the industry hires their expert witnesses,ﾔ said Price. ﾓYou're going to argue about things like how many parts per million of toxin 'x' really would be a threat. Is a 500-foot set-back enough, or should it be 1,000 feet? Should the fence around the drilling rig be seven feet tall or 10 feet?ﾔ
ﾓThe experts get to argue and the citizens, again, are orphaned,ﾔ Price continued. ﾓTheir interests and their rights are not invited into the room.ﾔ
ﾓWe all have the right to health, safety and welfare, to life, liberty and the pursuit of happiness,ﾔ Price said. ﾓHowever, there is no process or mechanism for asserting those rights. To the contrary, we have an administrative process in place that guarantees you never get a chance to assert those rights in a venue where it mattersﾗwhere the outcomes will be changed, based on you asserting your rights.
The third option of adopting an ordinance such as a ban or community bill of rights that addresses hydrofracking takes a different legal route, said Price.
ﾓIt sets up a different playing field that says, if you want to sue to turn over this ordinance, you make the argument that says the people in this community do not have these rights, and on the other hand a corporation does have these rights,ﾔ he said. ﾓAnd that's getting to the core of the issue... you don't have a fracking problem; you have a democracy problem.ﾔ
County Commission President David Fleming told Price he would like to see a draft copy of the CELDF's community bill of rights ordinance.
If the county adopted such an ordinance and it was challenged in court, Price said the CELDF could offer free legal services or consultations to aid in defending the ordinance.
When the meeting was opened for public comment, Price was praised by several in the room for his presentation. Others had questions for Price about various legal aspects concerning land in the county already leased for gas drilling, such as liability for damage to a neighbor's property, the legality of ﾓforced poolingﾔ of landowners who have refused to sign mineral leases, and how a landowner could get out of a lease if they believe they didn't have informed consent.
Price, who is not an attorney, declined to address the legal questions specifically, but he said there are several cases working their way through the legal system that will set the precedent for how these questions are handled.
ﾓWe really need more information,ﾔ said Ginger Must, of Hillsboro, ﾓAnd the people who have already leased really need more information.ﾔ
Must said she knows several landowners who signed leases who are now trying to figure out how they can protect their rights and property, in light of the documents they may have signed two or three years ago.
ﾓPeople feel a little betrayed,ﾔ Must added. ﾓThings were really misrepresented to them. They thought it was their grandfathers' drilling.ﾔ
John Leyzorek, of Indian Draft, suggested the county draft a ﾓmodel leaseﾔ for landowners who choose to sign gas leases. For those who adopt the model lease, the county could then provide legal assistance when needed, he said.
While much of the discussion focused on landowners who live in the county, County Commissioner Martin Saffer said he was concerned about the prospect of drilling on land owned by federal and state agencies, which accounts for more than two thirds of Pocahontas County.
ﾓWe don't know what their intent is to allow drilling in state and national forest land,ﾔ Saffer said. ﾓThey have to be brought into the conversation with the other part of the communityﾗthose 9,000 of us that actually live here.ﾔ