On Shale and NPR, All Things Considered

Earlier this week, I participated in a great conversation as a guest on NPR’s Diane Rehm Show, where I was joined by Coral Davenport of National Journal and Michael Brune, the executive director of the Sierra Club. The topic, as you might expect, was hydraulic fracturing, with heavy emphasis on so-called “local control” and zoning ordinances aimed at restricting shale development on private land.

The segment began with a point-counterpoint format between a lawyer from Earthjustice (arguing on behalf of using local control to stifle development) and a representative from the Joint Landowners Coalition of New York (JLCNY). The lady from Earthjustice recited the same talking points we hear so often from opponents, most notably the suggestion that local entities should be empowered to regulate land use, which apparently includes hydraulic fracturing. Her statement was a defense of a recent New York appeals court decision.

It’s worth noting right now, though, that the push for “local control” is essentially a ruse. Remember, the same groups who have been pushing relentlessly for the federal government, via U.S. EPA, to regulate hydraulic fracturing are now claiming that authority should instead rest with city councils and township commissioners.

How is such a clear contradiction possible?

Break down the “local control” issue, reduce it to its irreducible parts, and what you find is that it’s not really about local control at all. Opponents of shale development haven’t all of a sudden dropped their philosophy that the federal government knows best. They’ve simply recalibrated their approach: taking their message to every level and authority of government that exists (even school boards!) to find the one that’s most hostile to oil and gas. Once identified, they then worked backwards from there to argue why that level – in this case, the county or city government – is the ideal place for regulating oil and gas, irrespective of whatever experience (or lack thereof) that particular office may have.

Of course, the one level of government in the United States that actually has demonstrated leadership and expertise in the realm of oil and gas regulation is the states. They’re the ones that have more than a hundred years’ worth of experience, which is why even federal agencies typically grant states primacy to apply and enforce applicable federal laws. It’s also why the head of EPA’s drinking water division was quoted suggesting that states are doing a “good job” regulating hydraulic fracturing.

But the problem for opponents is that these same state regulatory agencies — no doubt because they are actually experienced in this field — have roundly and near-categorically rejected their claims and allegations. From hysterical accusations of hydraulic fracturing contaminating groundwater, to the suggestion that emissions from shale development are unregulated and uncontrolled, state regulators have investigated every aspect of development and found the reality to be completely different from what opponents have alleged.

Undaunted by the push-back from state regulatory agencies, activist groups have decided to take a page directly from the playbook used by some in the legal community: “venue shopping.” Activists can’t get the federal government to ban fracking; they can’t get the states to ban it; and they can’t get local communities that actually exist in proximity to oil and gas wells to ban it either.

Their recourse? Get places like Vermont to ban the practice, even though there’s zero oil and gas activity in the state. Send attorneys in from back east to Mora Co., N.M. to do the same. Sure, there’s not a single well operating in that county – and no shale either. But folks in the media don’t know that – hey, it’s New Mexico, after all! For activists, that’s mission accomplished, even though their efforts stopped not one single well from being drilled.

On her show this week, Ms. Rehm asked National Journal correspondent Coral Davenport if she believes we will see more attention on bans and “local control” in the coming months. Davenport’s response:

 “We will if the federal government doesn’t step forth on this.”

In other words, according to Davenport, the only thing that can prevent environmental groups from venue shopping anti-fracking resolutions to local governments is if the federal government itself decides to regulate hydraulic fracturing?

Of course, to suggest that only the feds can prevent local bans from advancing is to suggest those who are not equipped to regulate the process in any conceivable way are somehow destined to regulate it anyway. Federal regulation would also be contrary to literally decades of established law, premised on the fact that state regulatory agenices are, in fact, the best equipped.

This raises a series of questions.

First of all: who do we want as regulators: governments that actually have the history and expertise to do so, or governments that do not? Remember: it was none other than former EPA administrator Lisa Jackson – appointed by President Obama in 2009 – who said:

 “Let me speak really plainly…There is no EPA setup that allows us to oversee each and every well that’s drilled.”

Is that who we want in charge of regulating hydraulic fracturing? Will that solve anything?

Jackson has also said:

 “We have no data right now that lead us to believe one way or the other that there needs to be specific federal regulation of the fracking process.”

Second of all, let’s revisit what “local control” is really all about: halting development. The groups behind it — Food & Water Watch, NRDC, Sierra Club, Earthjustice, Earthworks, et al. – have been working for years to stop energy production. They know that a patchwork of regulations – and the prospect that a handful of commissioners or town council members can decide on a whim (aka “at the urging of air dropped activists in that region”) to ban or restrict drilling – would prevent the industry from having any investment certainty. Sold as a “local control” issue, the so-called “greens” are pushing for a ban under a different name.

Lest you think this is just about preserving simplicity for the industry, the reality is that all states have to provide some level of consistency for any commercial or industrial process. To give just one analogy, should each county – indeed each town – be empowered to create its own driver’s license? Its own driving tests, its own specific rules and requirements? Its own uniquely frustrating DMV? Heck, maybe even its own vehicle permitting requirements, including emissions tests and safety inspections? Just to drive across the state you’d need a wallet bigger than George Costanza’s, not to mention an investment of time and energy that I doubt anyone legitimately has.

The argument for federal regulation of hydraulic fracturing, at its core, rests on the assumption that the states are not doing their jobs, and that those failures are significant enough to warrant an additional layer of regulation on top of everything else. That argument is not a factual one, but rather an emotional one designed to secure talking points. It’s a position of convenience, not one of seeking to improve any existing system.

If anything, by placing authority in the hands of officials who do not have as much expertise, we would likely be making the situation worse.

As issues like “local control” gain more media attention, it’s important we all recognize not just THAT states are the primary regulators of oil and gas development, but WHY that is and remains the case. It’s not because the federal government has skirted its responsibilities, and it’s not because of some grand conspiracy to keep local municipalities shut out of the process. It’s because, when it comes to oil and gas, experience matters.


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