3 Ways Laws Are Stacked to Favor Fracking Companies -- And How We Can Change That

A new report offers compelling evidence that fracking for natural gas is killing domestic animals like horses, cattle, goats, sheep. The dead animals provide a strong warning that fracking can harm humans -- something the fracking industry has consistently denied.

"Fracking" is short for "hydraulic fracturing" -- a well-drilling process that pumps water, sand and toxic chemicals a mile or so below ground to release natural gas trapped in rocks. If all goes well, the deep rocks shatter, releasing gas, which is piped directly to the surface where it becomes part of the nation's energy supply or is exported. If all doesn't go so well, some of the fracked gas and toxic chemicals start moving around through cracks and fissures below ground, where they sometimes mix with underground water supplies, perhaps ruining a valuable aquifer forever.

The new report, "Impacts of Gas Drilling on Human and Animal Health," by Michelle Bamberger and Robert Oswald appeared in New Solutions (Jan. 2012). Bamberger is a practicing veterinarian and Oswald a professor of pharmacology in the Cornell College of Veterinary Medicine. The two spent a year evaluating all available fracking-related reports on sick or dying animals. Secrecy surrounds the fracking industry, but a few "natural experiments" have provided powerful evidence that fracking can harm animals. On one farm, 60 cows were pastured near a creek where fracking fluids had reportedly been dumped; another 36 cattle were pastured without access to the creek. Of the 60 cows, 21 died and 16 more failed to produce calves the following spring. Among the 36 not exposed, health problems were absent.

A second natural experiment occurred on another farm where 140 cows were exposed to fracking wastewater after an impoundment liner failed. Of the 140 exposed cows, about 70 died and there was a high incidence of stillborn and stunted calves. Some 60 other cows from the same herd were held in a separate pasture free from toxicants. None of them developed any health or reproductive problems.

In the Energy Policy Act of 2005, Congress gave fracking a green light by exempting it from the Clean Water Act and the Safe Drinking Water Act. At the bidding of the oil and gas industry, Congress basically said, "We want this gas out of the ground by any means necessary." Now, six years later, some 450,000 fracking wells have been drilled in 31 states. Already 30 percent of all U.S. natural gas comes from fracking. The practice started in the west -- Colorado, Oklahoma, New Mexico, Texas, Wyoming. Then it went south -- Arkansas, Alabama, Louisiana. Now it's moving east to Ohio, Pennsylvania and New York. If the fracking industry continues to have its way, tens of thousands more fracking wells will be drilled and billions of gallons of water mixed with industrial poisons will be pumped underground.

If you've seen the Oscar-nominated documentary film Gasland, you'll never forget those flames shooting out of Marsha Mendenhall's kitchen faucet in Weld County, Colorado. Or the Fox-31 News report on KDVR-TV (Denver) showing flames shooting from a faucet inside the home of Jesse and Amee Ellsworth in Fort Lupton, Colo. -- accompanied by gas frackers offering straight-faced denials that they've ever seen any proof that fracking has contaminated water.

That's the root of the problem. The fracking industry claims there's no scientific proof (only "anecdotal evidence") that their technology has ever caused "unreasonable" harm, and until such proof exists, they have a legal right to frack away. To ordinary people, flaming faucets and dead animals make it obvious that fracking can contaminate water with chemicals that can kill. Indeed, in December, U.S. Environmental Protection Agency issued a draft report concluding that fracking has contaminated underground drinking water supplies in Wyoming. It looks like an open-and-shut case, but it's not because of the way our laws work.

As legal scholar Joseph Guth has shown, the U.S. legal system is strongly biased in favor of economic growth -- even growth that is acknowledged to harm human health and the natural environment. This is why the environmental movement, despite decades of really hard work, has not been able to turn back the tide of destruction. U.S. environmental law commonly presumes that all economic growth is safe and that it is "reasonable" until someone can prove otherwise. Citizens who file a lawsuit to prevent harm from frackers typically must prove that 1) a chemical or activity will cause harm; and 2) the harm is "unreasonable." The test of what's "reasonable" is a cost-benefit analysis to show that the costs (harms) outweigh any benefits to society.

Government regulators face exactly the same hurdle. Before they can regulate an activity like fracking they must show that the benefits of regulation outweigh the costs. Proving that fracking causes harm is just the beginning for plaintiffs and regulators. Even if the law acknowledges that substantial harm is caused by fracking, that horses and cattle and sheep are getting sick, and very likely humans too, the economic benefits are still assumed to outweigh the costs. As far as the law is concerned, such costs may be regrettable, but they are a "reasonable" price to pay for economic activity until a cost-benefit analysis shows otherwise. There are three bed-rock legal principles at work here:

(1) The fracking industry does not have to prove that fracking is safe or that its benefits outweigh its harms -- the law presumes that both are true and it's up to the public to prove otherwise. This means that considerable damage must occur before anyone can prove causation and then begin to ask whether the harm is "reasonable" by a cost-benefit test. This is especially true if the activity is exempt from federal statutes and people who are harmed must rely on the courts.

(2) Industry is not required to provide information that might enable the public to prove that fracking causes harm or that the harms of fracking outweigh the benefits. Claiming "trade secrets," industry can stonewall, and it does. In 2011, a government investigation found that, between 2005 and 2009, fracking companies pumped at least 94 million gallons of 279 products into the ground containing at least one chemical that the manufacturers deemed proprietary or a trade secret.

(3) The industry (and any agencies that regulate the industry) do not have to show that frackers are fulfilling the nation's energy needs in the least-harmful way possible -- that question simply never comes up. The law presumes that economic activity has a net social benefit and therefore should continue as-is, unquestioned. That legal presumption prevents society from searching for the least damaging way to live on the earth. As a result, harms multiply.

Given these three legal principles, it's obvious that a few simple changes in the law could turn things upside down and finally make it possible to protect the environment and people's health. The law could be changed to:

(1) require energy companies to produce full information about their operations;

(2) make them show that their energy production methods are safe and that they are meeting the nation's energy needs in the least harmful way possible (thus forcing a detailed comparison to biofuels, coal, geothermal, oil, nuclear, solar, tidal, and wind); and

(3) at the very least make them offer proof that the benefits they provide outweigh the harms they cause. No data, no fracking. No safest method, no fracking. No maximum net benefit, no fracking.

These kinds of legal reforms are not pie in the sky. They are happening in the real world, especially in Europe. In the United States, these simple but revolutionary changes are unthinkable so long as private money is sloshing around in our elections. Therefore, getting private money out of elections is the necessary first reform -- the reform that would make all other reforms possible.

Until then, we'll have the best Congress that money can buy and the frackers will continue to have their way with us.   

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