Green cru­sade hit­ting red lines

The Washington Times Weekly - - National - BY VA­LERIE RICHARD­SON

DEN­VER | Even be­fore a fed­eral court rul­ing threw out the Obama ad­min­is­tra­tion’s hy­draulic frac­tur­ing rule last week, foes of frack­ing were strug­gling to dig their way out of a hole af­ter a string of pol­icy and reg­u­la­tory re­ver­sals.

Other en­vi­ron­men­tal cru­sades tar­get­ing the oil and gas in­dus­try show signs of progress, but “frac­tivists” have ab­sorbed a se­ries of po­lit­i­cal and le­gal de­feats that call into ques­tion whether the tac­tic once viewed as a sure­fire gusher will ever amount to more than fool’s gold.

The lat­est set­back was de­liv­ered by U.S. District Court Judge Scott Skav­dahl of the District of Wy­oming, who ruled last Tues­day that the In­te­rior Depart­ment ex­ceeded its author­ity with its 2015 rule gov­ern­ing hy­draulic frac­tur­ing, a widely used ex­trac­tion tech­nique used to sep­a­rate oil and nat­u­ral gas from rock. States have been the pri­mary reg­u­la­tors.

The process has rev­o­lu­tion­ized world en­ergy pro­duc­tion pat­terns but has faced de­ter­mined re­sis­tance from en­vi­ron­men­tal groups ar­gu­ing that frack­ing is ei­ther un­proven or un­safe.

“Congress’ in­abil­ity or un­will­ing­ness to pass a law de­sired by the ex­ec­u­tive branch does not de­fault author­ity to the ex­ec­u­tive branch to act in­de­pen­dently, re­gard­less of whether hy­draulic frac­tur­ing is good or bad for the en­vi­ron­ment or the cit­i­zens of the United States,” Judge Skav­dahl wrote in his 27-page opin­ion.

The judge, ap­pointed to the bench by Pres­i­dent Obama in 2011, had placed a hold on the reg­u­la­tions pend­ing the outcome of the law­suit brought by in­dus­try groups and four Western states: Colorado, North Dakota, Utah and Wy­oming.

“For the past year, we’ve suc­cess­fully made the case that these rules un­law­fully in­ter­fere with Colorado’s sov­er­eign right to re­spon­si­bly and safely reg­u­late the oil and gas in­dus­try,” Colorado At­tor­ney Gen­eral Cyn­thia H. Coff­man said. “This case is another un­for­tu­nate ex­am­ple of fed­eral bu­reau­crats over­step­ping their author­ity.”

The White House char­ac­ter­ized the frack­ing rul­ing as a tem­po­rary and iso­lated set­back and noted that the 10th U.S. Cir­cuit Court of Ap­peals is also re­view­ing the case.

“We ob­vi­ously be­lieve that we’ve got a strong ar­gu­ment to make about the im­por­tant role the fed­eral gov­ern­ment can play in en­sur­ing that hy­draulic frac­tur­ing that’s done on pub­lic lands doesn’t threaten the drink­ing wa­ter of peo­ple who live in the area,” White House spokesman Josh Earnest said. “It’s a pretty sim­ple propo­si­tion.”

The de­ci­sion sideswiped a move­ment still reel­ing from another sting­ing court de­feat. Six weeks ear­lier, the Colorado Supreme Court struck down frack­ing bans passed by two lo­cal­i­ties — Fort Collins and Long­mont — rul­ing that state law reg­u­lat­ing the in­dus­try trumps city and county or­di­nances.

Not even the En­vi­ron­men­tal Pro­tec­tion Agency has proved to be a re­li­able ally. In a long-awaited as­sess­ment on frack­ing and wa­ter qual­ity re­leased June 4, the EPA con­cluded that U.S. frack­ing ac­tiv­i­ties are “car­ried out in a way that have not led to wide­spread, sys­temic im­pacts on drink­ing wa­ter re­sources.”

Food & Wa­ter Watch, a lead­ing an­tifrack­ing group, ac­cused the EPA of “in­ject­ing pol­i­tics” into the study by do­ing the bid­ding of the fos­sil fuel in­dus­try.

“The frack­ing in­dus­try and big banks have huge stakes in pro­mot­ing frack­ing, and we be­lieve their in­flu­ence ex­plains why EPA chose to run with the con­tro­ver­sial and un­sup­ported head­line,” Food & Wa­ter Watch se­nior re­searcher Hugh MacMil­lan said in a June 14 state­ment. “Now, the EPA has some ex­plain­ing to do.”

Kath­leen Sgamma, Western En­ergy Al­liance vice pres­i­dent for gov­ern­ment and pub­lic af­fairs, said the anti-frack­ing move­ment’s prob­lem isn’t a lack of friends in the Obama ad­min­is­tra­tion but rather over­reach.

“By at­tempt­ing to stop or make frack­ing more dif­fi­cult, ei­ther through re­dun­dant reg­u­la­tion or bal­lot ini­tia­tives, anti-fos­sil-fuel forces ran into re­al­ity. States are safely reg­u­lat­ing frack­ing and pro­tect­ing the en­vi­ron­ment, and cit­i­zens in­creas­ingly un­der­stand that bal­ance,” said Ms. Sgamma. “En­vi­ron­men­tal­ists thought their typ­i­cal scare tac­tics could work and the pub­lic would buy it, but this year has shown that calmer heads are pre­vail­ing.”

Los­ing ground

The anti-frack­ing move­ment hit its peak in 2014 when New York Gov. An­drew Cuomo, a Demo­crat, is­sued a statewide ban two years af­ter Ver­mont out­lawed the prac­tice.

Since then, the move­ment has lost ground even as other en­vi­ron­men­tal cam­paigns score points at the ex­pense of in­dus­try.

The Keep It in the Ground ef­fort has suc­cess­fully de­layed sev­eral fed­eral min­eral-lease sales, and the coal in­dus­try has been hit hard by the Obama ad­min­is­tra­tion’s tough emis­sions reg­u­la­tions in what crit­ics call a “war on coal.”

The di­vest­ment cam­paign notched a win last month af­ter per­suad­ing the Uni­ver­sity of Mas­sachusetts to sell off its di­rect hold­ings in fos­sil fuels, although in­dus­try sup­port­ers point out that most in­sti­tu­tions have lit­tle or no such di­rect in­vest­ments, but rather hold shares in pooled funds.

Against that back­drop, the anti-frack­ing move­ment has emerged as some­thing of a weak link. A bright spot ap­peared this month when vot­ers passed a frack­ing ban in Butte, Cal­i­for­nia, a town with lit­tle or no oil and gas ex­plo­ration but an ac­tive pro­gres­sive elec­torate.

In­deed, the anti-frack­ing move­ment’s best mo­ments have been at the bal­lot box in lib­eral col­lege towns where an­ti­in­dus­try sen­ti­ment runs high.

In Mon­terey, Cal­i­for­nia, vot­ers are slated to de­cide on an anti-frack­ing mea­sure in Novem­ber. Mon­terey does have oil and gas ac­tiv­ity, although the ini­tia­tive would ap­ply only to “new waste­water in­jec­tion wells and waste­water ponds,” not the more than 1,500 oil and gas wells al­ready op­er­at­ing.

In Colorado, frac­tivists are mov­ing to over­ride the state Supreme Court’s de­ci­sion with a pair of pro­posed state bal­lot mea­sures. Ini­tia­tive 75 would al­low lo­cal­i­ties to make their own frack­ing rules, and Ini­tia­tive 78 would re­quire 2,500-foot set­backs be­tween in­dus­try op­er­a­tions and “ar­eas of spe­cial con­cern,” which would ef­fec­tively ban oil and gas devel­op­ment on about 95 per­cent of the sur­face area in the five most ac­tive pro­duc­ing coun­ties.

The prob­lem is whether the Colorado move­ment has the fi­nan­cial and po­lit­i­cal mus­cle to reach the bal­lot, given the staunch op­po­si­tion of Repub­li­cans and top Democrats. Although Democrats have called for ac­tion to com­bat cli­mate change, that hasn’t trans­lated into or­ga­nized op­po­si­tion to frack­ing.

In Cal­i­for­nia, a re­fusal by Gov. Jerry Brown, a Demo­crat, to sup­port frack­ing bans has made the is­sue a non­starter. Another Demo­crat, Colorado Gov. John Hick­en­looper, has made life dif­fi­cult for the move­ment with his strong sup­port for the oil and gas in­dus­try.

Two years ago, Mr. Hick­en­looper ef­fec­tively turned frac­tivists into po­lit­i­cal per­sonas non grata by per­suad­ing Rep. Jared Po­lis, a Demo­crat, to pull his fi­nan­cial back­ing for a statewide anti-frack­ing bal­lot ini­tia­tive. Since then, the move­ment has strug­gled to find sup­port among top Democrats, while the pro-in­dus­try group Pro­tect Colorado has ac­tively fought to keep such pro­pos­als off the bal­lot.

This year, Yes for Health and Safety Over Frack­ing has raised about $85,000 to place the two mea­sures on the bal­lot. About $50,000 came from a sin­gle donor, Pa­tri­cia Ol­son of Boul­der, ac­cord­ing to state cam­paign fi­nance re­ports.

The In­te­rior Depart­ment de­clined to an­nounce im­me­di­ately whether it would ap­peal the judge’s rul­ing but de­scribed it as un­for­tu­nate “be­cause it pre­vents reg­u­la­tors from us­ing 21st cen­tury stan­dards to en­sure that oil and gas op­er­a­tions are con­ducted safely and re­spon­si­bly on pub­lic and tribal lands.”

The Sierra Club re­sponded with a state­ment say­ing that the Bureau of Land Man­age­ment “has the author­ity to safe­guard our health and our en­vi­ron­ment from the dan­gers of frack­ing.”


U.S. District Court Judge Scott Skav­dahl ruled last week that the In­te­rior Depart­ment ex­ceeded its author­ity with its 2015 rule gov­ern­ing hy­draulic frac­tur­ing, hand­ing another de­feat to frack­ing foes.

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