putting a price on sacrifice

December 7, 2013

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Fly fishing in unfractured Garrett County.//photo by Crede Calhoun

Sacrifice zone.

The words shot out into the room like a fracked well flaring, leaving onlookers startled and wary but signifying not much out of the ordinary to the drillers.

A compensation fund “is important if we want [fracking] to move ahead … allowing people to have a level of comfort if they find themselves in a sacrifice zone,” said Shawn Bender, member of the state’s Marcellus Shale Safe Drilling Advisory Commission and Garrett County Farm Bureau president. For those who are “scared to death” and hearing “horror stories,” such a fund might assuage fears sufficiently to raise support for fracking in the county, Bender said at the commission’s November meeting. Bender is also a division manager of Beitzel Corp., which operates heavy equipment and prepares sites for fracking in neighboring Pennsylvania and West Virginia.

Earlier during the meeting, Bender and Commissioner William Valentine had offered some benefits from fracking and pipelines: People get more access to the forest. The access roads to the old, conventional gas wells in Accident created open areas for hunters, hikers and bikers, they said. “Lots of animals are drawn to the grass around the wells,” Bender said, and once the fracking is completed, “it opens things back up. We would love to have some nice wells to have nice access.”

Paul Roberts, the citizen representative on the commission, asked incredulously: “So, more wells, more turkey, more deer, more money?”

And never mind that forests serve a purpose beyond providing a backdrop for hunters and hikers. Or that clean rivers hold more than a good fishing spot. Or that clear air is more than a grand view. Or that this extreme energy extraction requires extraordinary measures to compensate those who fall along the way. The fossil fuel industry has made its billions on a bull-in-the-china-shop romp over this Earth, trampling ecosystems and leaving sacrificed communities in its path. In fact, we now know that just 90 companies (with Chevron topping the list) caused two-thirds of the world’s industrial CO2 and methane emissions that have us in this climate-change fix. So the entire planet, turns out, is a giant sacrifice zone. (One legal scholar even says: “A clear formula now exists for allocating at least a significant percentage of the costs of climate change to those companies that benefited most … .”)

fracking rig by mike bagdes-canning

A fracking operation in Butler County, PA.
//photo by Mike Bagdes-Canning

Brigid Kenney, senior policy adviser at the Maryland Department of the Environment (MDE), broached discussion of a compensation fund at the meeting, asking commissioners for guidance on how the community as well as individuals could be compensated for the “disadvantages” or “burdens” of fracking. In a 2011 report from MDE and the Department of Natural Resources, the commission had endorsed several mechanisms, including a severance tax, to compensate individuals who sustained a loss that didn’t qualify as a legal claim, Kenney said. But the severance tax didn’t pass in the last General Assembly session, and commissioners had, in the meantime, signaled they wanted to direct such a pool of money for environmental damage that couldn’t be traced to a particular company.

A compensation fund might cover someone who claims harm from drilling on nearby property, such as the “noise kept me awake,” Kenney said. These would be harms that didn’t “rise to the level of a lawsuit,” she said. “I’m not sure you want to take Chevron into small claims court.” Several comments submitted on the best management practices suggested such a fund, along the lines of the fund created after the 2010 BP oil disaster in the Gulf of Mexico or the fund after the 9/11 terrorist attacks, when people waived their rights to sue the airlines, she said.

But where would the money come from, Kenney asked, and who would distribute it?

“I think this is a really important conversation to have,” Roberts said. But he asked to table the topic until the next meeting, because he had had no warning and wasn’t prepared with ideas. Roberts has said that the state’s proposal to cluster fracking wells under Comprehensive Gas Development Plans (CGDPs) to try to reduce the land affected has paradoxically increased concern about sacrifice zones. In his recently released comments about the state’s proposed best management practices, he called the CGDPs “an experimental strategy” for an “experimental technology.” Citing an Environmental Protection Agency admission that fracking creates pathways for gas to migrate to the shallow aquifers, he said, “If water resources in the immediate vicinity of these industrial parks are contaminated — highly likely, due to the intensive volume of activity, and given that communication between horizontal ‘legs’ at fractured wells has been documented — we must logically assume that such contamination would not respect planned borders, creating ‘sacrifice zones,’ ” Roberts wrote. A key part of making this risk acceptable, he also said, would be a fund to adequately “compensate innocent bystanders.”

“My initial reaction is it is not a workable idea,” said Commissioner Jeff Kupfer of Chevron. “If people have legitimate legal claims, there is a process to deal with it.” Being inconvenienced, though, is another matter. If a developer closes a road for a year to build an apartment complex, “am I going to the developer to claim an inconvenience? There are certain things people should be compensated for … but the idea that people [who] are bothered should be compensated” is not workable, he said.

Several commissioners noted the expense and near impossibility of challenging a multinational corporation in court, what Pennsylvania attorney and Commissioner Harry Weiss labeled “a resource imbalance.”

“I had to wait five minutes and was late to the dentist,” Oakland Mayor Peggy Jamison said. “What should I get? … I don’t know how you would ever do that. It may be worth $100 to you but $1,000 to me.” How would that compensation be determined, she asked.

“I don’t think people are concerned about being inconvenienced,” said Roberts, who grows grapes and owns a winery and has grave concerns about damage to his business from fracking. “You are not facing the prospect of losing the value of your property.” He suggested that those who favor fracking ought to endorse such a fund. Without it, fracking “won’t have broad public support because [there is] no confidence in it.”

“I think this [compensation fund] would be totally unworkable,” said Valentine, who is also an Allegany County commissioner. People would take advantage of the fund, he said, whether they had a blocked view or were stuck behind a truck. “If someone is injured in some way, there is a legal method,” he said.

People who haven’t leased their land are more likely “to be injured and have a tough time,” said Weiss, the attorney. Nevertheless he cautioned the commission about “ad hoc” solutions when “there are still protections on the table to fill gaps that we haven’t fully fleshed out.” Later, however, he noted that Alaskan residents get an annual check for oil drilled in their state: “You could have a sacrifice zone fee for every permit,” shared by everyone in the area, rather than try to make judgments on each “level of frustration.”

“What I hear all of us confirming … is that there are going to be claims as a result of this activity …  which all of the other programs that we are trying to set up don’t address, “ Roberts said.

Kenney mentioned declines in property values. “There is currently no mechanism” she said, to compensate owners if, for example, a crematorium is built next door. But, she asked, “Are we going to single out one industry and make them pay for diminution of property value if what they are doing is legal and they aren’t causing pollution?”

“We’re not worrying about a runaway development of crematoriums,” Roberts said. “We’re talking about [gas wells]. Your analogy doesn’t stand up.”

During the time allotted for public comment, landowner Ruth Yoder of Grantsville told the commissioners: “I’m scared. …This is not going to be a level playing field if something happens to my property. I love where I live. … I hope and pray my view shed and water aren’t harmed. I’m scared.”

A brief silence ensued, followed by a bit of barely audible joking from Commissioner and state Sen. George Edwards about the county’s best fishing holes and other small talk. No one responded to Yoder.

Earlier in the meeting, Commissioner Nick Weber had said he disclosed some key fishing holes for mapping to be incorporated in the state’s proposed “tool box” for drillers. The idea is to keep drill sites from recreational sites. But Weber, a former chairman of Mid-Atlantic Trout Unlimited, also emphasized that the number of people fishing along a stream is not the only measure of its value. A stream is a resource beyond “how many cars drive up and is there a parking lot,” he said.

Roberts is holding two meetings next week with residents in Garrett County about a compensation fund. “It is paramount that county residents, as innocent bystanders to the industrialization that gas-drilling causes, not be pitted in court against the most powerful corporations in the world,” Roberts said in an announcement on CitizenShale. “This [compensation] program would level the playing field. Though I question whether this industry can ever be effectively regulated, those who want drilling should recognize a common interest we all share: People I’ve talked to who fear or oppose drilling would tolerate some, if it is controlled and properly regulated — and that’s also what proponents say they want.”

Risky business: Because the state has been unwilling to pay for an independent risk assessment of fracking, CitizenShale, Chesapeake Climate Action Network and Garrett County’s largest municipality, Mountain Lake Park, are paying for a study. “Nick Weber and Paul Roberts, for over a year, have asked for a risk assessment through this process,” said Eric Robinson of CitizenShale at the commission meeting. The state decided instead to do its own study, so the organizations hired Ricardo/AEA, the British firm that conducted a risk analysis in 2012 for fracking for the European Union. “It is imperative that our state’s decisions about whether to allow gas-drilling be examined by experts qualified to make impartial determinations about the risks,” Robison said in a press release about Mountain Lake Park’s assistance. “A study like this, before such an important decision, ought to have been automatic.”

–elisabeth hoffman

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