The long shadow of a decade of loose enforcement

Report from Pennsylvania speaks to local fracking bans across U.S.

Nadia Steinzor

Pennsylvania and Colorado may be a nation apart, but they’re side-by-side when it comes to having recently seen explosive increases in oil and gas development, specifically through the use of hydraulic fracturing in shale formations that are often drilled horizontally. Findings from a report from Earthworks — a nonprofit working to protect communities and the environment from the adverse effects of oil and gas development — that examined the oversight and the operational record of wells in Pennsylvania sheds light on the concerns people in Colorado express when it comes to oil and gas development.

The situation in Pennsylvania sounds all too familar — a governor who encourages drilling and fast-tracking the approval of drilling permits, a history of wells going uninspected and fines going unissued. A set of rules on the books that, no matter how weak or strong they might appear, fall prey to lenient or even nonexistent enforcement.

“No matter how good or bad the rules are, it’s the resources and policies and attitude of the enforcement agency that matters, because if you don’t have the proper resources and attitude, the public’s agent enforcing the law as opposed to being the industry’s facilitator, then it doesn’t matter what the rules are,” says Alan Septoff, strategic communications director for Earthworks. “That’s universal and it’s been found by the [Government Accountability Office] of the EPA and I believe the BLM, it’s been found by us and others in Pennsylvania and in Texas and in Colorado.”

The report, Blackout in the Gas Patch: How Pennsylvania Residents are Left in the Dark on Health and Enforcement, found that the Pennsylvania Department of Environmental Protection routinely “prioritizes development over enforcement,” at the cost of considering cumulative effects on air and water quality.

“There’s a national crisis in fracking oversight,” Bruce Baizel, director of Earthworks’ Oil and Gas Accountability Project, said in a press release from Earthworks. “This report focuses on Pennsylvania, but it easily could have been written about Ohio, or the federal Bureau of Land Management, or Denton, Texas. Blackout illustrates why many residents across the United States have given up on the idea that regulators can manage the oil and gas boom, and are working so hard to stop fracking.”

In a July interview with Boulder Weekly, Baizel said, “I think a bit the industry has been sort of short sighted in fighting regulation over the last decade, and now they’re paying for it with these bans. They always say ‘No no no,’ instead of ‘Yes, we recognize we need a regulatory framework.’” A failure to regularly inspect the majority of the wells in the state was among the concerns cited in Pennsylvania and shared by those who oppose fracking in Colorado. More to the point, though, Septoff says, is that even when inspections are being performed and inspectors find problems, they aren’t always issuing formal violations.

“There’s too much discretion in the hands of inspectors, in Colorado, in Pennsylvania, everywhere we’ve looked,” Septoff says. “Inspectors make arrangements with the operators on the spot in a way that makes it almost impossible for the public to know that the violation happened and for other operators to know that the cop is on the beat.”

A different system of justice seems to apply for the oil and gas industry, he says, and it doesn’t look much like the standard criminal justice system, which would take your behavior and past record into account and sanction a lawbreaker. Oil and gas companies, he says, more often get the equivalent of a slap on the wrist.

Earthworks found in the 2012 report Colorado Oil and Gas Conservation Commission: Inadequate Enforcement Means Current Colorado Oil and Gas Development is Irresponsible, that inspections were inadequate and violations not consistently or adequately assessed, reported and tracked. They found an increasing number of oil and gas operator spills, up from 257 in 2004-05 to 516 in 2010-11. The report said a potential cause for the increase in spills could be that there’s no incentive for operators to prevent them. Fines are rarely issued, and aren’t high enough to be considered significant. The COGCC went so far that year as to issue an “Outstanding Operator Award” to Noble Energy, which had more spills than any other operator in 2010 and 2011 — 126 in total, 81 of which affected groundwater and six affected surface water.

“There’s a connection between the lack of faith the public has in the COGCC’s oversight and the fracking initiatives,” Septoff says. “The COGCC is perceived as being an ally of industry, not an ally of the public, and for all too long that perception has been reality. That’s why even in Colorado, where oil and gas development has a long history, people are seriously considering bans. … That is the lesson and it’s a lesson across the country. It’s happening everywhere.”