Fracking and environmental justice | New Report on Ecological Footprints | 3 in a series

Courtesy of Lauren Musiello

New report documents ecological footprint of
fracking

TOXIC WASTE IN THE BILLIONS OF
GALLONS

Devon G. Peña | Shoreline, WA |
October 7, 2013

Our last work in this series was posted on May 30
2013 and was an op-ed piece prepared by Dakota elder Faith Spotted Eagle in
which she discussed how the Keystone XL pipeline project as an example of how
“environmental racism clearcuts the way for American economic development”.  The indigenous call for an end to environmental
racism of the capitalist energy sector is all the more poignant in the light of
a new scientific report that analyzes the ecological impacts of fracking.

The report, which was released last Thursday
(October 3), was prepared by Environment America Research and Policy
Center  (EARPC) and is entitled, Fracking
by the Numbers. It is said to be “the first report to measure the
damaging footprint of fracking to date” but this claim is not necessarily
accurate. We reported earlier in this series on the estimates provided by the
EPA itself and its widely cited concern for the over-appropriation of and
potential toxic damage to ground and surface waters.

Some principal highlights of the EARPC report
include the following statistics:

• Fracking wells nationwide produced an estimated 280 billion gallons of
  wastewater in 2012, enough to flood all of Washington, DC, in a 22-foot deep
  toxic lagoon


• 450,000 tons of air pollution produced in one year


• 250 billion gallons of fresh water used since 2005 


• 360,000 acres of land degraded since 2005
  
  


• 100 million metric tons of global warming pollution since 2005


• This toxic wastewater often contains cancer-causing and even radioactive
  materials, and has contaminated drinking water sources from Pennsylvania to New
  Mexico.


• Scientists have linked underground injection of wastewater to
  earthquakes.


• In New Mexico alone, waste pits from all oil and gas drilling have
  contaminated groundwater on more than 400 occasions.

The public health concerns of Native American,
Latina/o, and other low-income communities have been a principal focus of the
anti-fracking movement. The report adds legitimacy to these concerns.  A report in Eco-Watch features David
Brown, a toxicologist who has reviewed health data from Pennsylvania. Brown
summarizes the profound public health implications of the report: “At health
clinics, we’re seeing nearby residents experiencing nausea, headaches and other
symptoms linked to fracking pollution…With billions of gallons of toxic waste
coming each year, we’re just seeing the ‘tip of the iceberg’ in terms of health
risks.”

The battle lines, as we have been reporting, have
been drawn largely against the myriad ways many local governments including
town councils, land use planning commissions, county commissions, and others
have engaged efforts to use home-rule to regulate fracking. However, these
efforts have largely failed whenever the approach emphasizes regulation of gas
and oil industries. The failure is due to the fact that the juridical order
currently has the Environmental Protection Agency (EPA) adopting what can only
be qualified as a neoliberal interpretation of the Safe Drinking Water Act,
which is that the law is flexible and allows the feds to defer regulation of
fracturing and drilling to the states. A very few localities that approach this
as part of land use planning powers granted local governments under home rule
have had some success controlling the sites for fracking pads, if not the
overall ecological footprints.

So, there is still a need for a more progressive
federal policy and a key front in such a legislative battle involves a proposed
bill that would significantly redefine federal regulatory policies for
fracking. The campaign seeks to revive authorization of a proposed Fracturing
Responsibility and Awareness of Chemicals Act (H.R. 1084, S. 587, a.k.a. FRAC
Act). According to Eco-Watch, this legislative proposal seeks to define
hydraulic fracturing as a federally regulated activity under the Safe Drinking
Water Act. “The proposed legislation would require the energy industry to
disclose the chemical additives used in the hydraulic fracturing fluid. The gas
industry opposes the legislation. Some communities are passing home-rule
resolutions calling on Congress to support and approve the FRAC Act.”

Due to geological location of fracking operations,
and the peculiarities of devolved state regulators, there are some obvious regional
concentrations in the distribution of more serious toxic spill events.
According to the report, Colorado, well before the new extensive pollution
associated with the damages posed by the floods of this past summer, has
reported approximately 340 leaks or spills that polluted groundwater over a
5-year period; In Pennsylvania, state regulators identified 161 instances in
which drinking water wells were impacted by drilling operations between 2008
and the fall of 2012; In New Mexico, state records show 743 instances of all
types of oil and gas operations polluting groundwater—the source of drinking
water for 90 percent of the state’s residents. This means fracking operations
are quickly damaging drinking water in a time of drought and climate change
without significant state sanctions or policies to protect water quality.

What the report does not fully examine are the
legal nuances posed by the peculiarities of water law in the Western states
where fracking is expanding at such an alarming rate. In Colorado and New
Mexico, the neoliberal ideology of “hands-off, let the industry self-regulate” is
to some extent not just a function of the interlocking relationships between
regulators and the regulated industries but also of how state laws there – mistakenly
thought to derive solely from the doctrine of prior appropriation – erroneously
encourage water judges and lawyers to separate consideration of water quantity
(ownership issues) from water quality (impact assessment issues).

Thus, for example, in a manner that likely violates
another state law – the 2009 Colorado Acequia Recognition Law (HB1233-09) – the
application, or better said, manipulation, of the prior appropriation rules has
allowed one fracking operation in Las Animas County, outside Trinidad, to take
water from a historic acequia and use it for “augmentation” purposes in the
shale gas extraction operation, dozens of miles from the farm land. The
withdrawal of this water is affecting the ability of the remaining landowners
who irrigate with this acequia from managing their irrigating cycles and
meeting the needs of the balance of water use rights on a community ditch.
These are the vagaries of the ability for fracking corporations to hide behind
18^th century laws that privilege private property rights, even in an
environment where older (more senior) community water rights exist.

U.S. Energy Information Administration map of natural gas pipielines

The report presents a detailed and troubling
summary of the damage to America’s natural heritage (pages 14-16) but does not
pause to consider the damage to our cultural heritage including the harm done
to mostly people of color communities of land-based peoples, including acequia
farmers and Native Americans. This includes damage done to the cultural
landscapes and ecological services associated with traditional sustainable
land- and water-based livelihoods.

The report offers a set of policy recommendations
(pages 27ff) that appeal to changes in both state and federal laws. These
include what I consider to be very some very good ideas for environmental
self-determination as well as some rather tepid liberal proposals. One
excellent, although highly unlikely, proposal is for state-level changes in
home rule laws: “At a minimum, state officials should allow cities, towns and
counties to protect their own citizens through local bans and restrictions on
fracking”. A more realistic idea – one clearly inspired by the environmental
justice movement – is a proposal for “states bordering on the fracking boom
[to] … bar the processing of fracking waste”. This way “they will not become
dumping grounds for fracking operations next door”. One example of progressive
state law is the State of Vermont, which has already banned fracking and its
waste.

The report also focuses on changes in federal law
and specifically calls on the closing of loopholes that exempt fracking from
key provisions of our federal environmental laws. For example, fracking
wastewater, which often contains cancer-causing and even radioactive material,
is exempt from our nation’s hazardous waste laws. Another interesting proposal
is the idea that the feds “should protect treasured open spaces and vital
drinking water supplies from the risks of fracking”. This comes close to the
arguments we have made for the protection of the traditional cultural
landscapes of acequia and other Native American farmers since these also
provide ecosystem services and support economic amenities like the tourism
industry. This could be done through “Payment for Ecosystem Services” and this
can generate comparable millions in positive economic impacts. 

Photo courtesy of Lauren Musiello

The report further notes how in 2011, the Obama
administration’s science advisory panel on fracking recommended the
“[p]reservation of unique and/or sensitive areas as off limits to drilling and
support infrastructure.”  (page 27)
Thus, “dirty fracking should not be allowed near our national parks, national
forests or in watersheds that supply drinking water.”

Despite this advice, the Obama Administration has
not done much to contain the development of fracking and use the existing
regulatory powers of the EPA to control some of the more pernicious effects of
the industry. Fracking is being allowed to initiate a new era of toxic racism
that will haunt rural residents for hundreds of years and more and more
drinking water is polluted beyond use.

The report, without attribution, further
illustrates the need for a federal environmental justice act that can provide
citizens and communities with more powers to avert and control their own
ecological futures against the social and environmental impacts of fracking.

Finally, I would like to suggest some additional “variables”
for future modeling of the ecological impacts of fracking. We need to include
estimates of the damages associated with structural violence and historical
trauma.