Tag Archives: Marcellus shale

Will Virginia run roughshod over local zoning power to help gas drilling companies?

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Although Virginia’s 2017 General Assembly session is still more than three months off, fossil fuel interests will already be planning how to win more special favors from the legislature. In past years they’ve gotten subsidies or a relaxation of environmental safeguards. This year, it could be help dealing with pesky local governments that want to protect communities from fracking. Guest blogger Linda Burchfiel brings us the story.

Photo credit Virginia Sierra Club

Photo credit Virginia Sierra Club

Even in a Dillon Rule state like Virginia, where local governments have only the authority conferred on them by the state, localities have some authority over matters that affect the daily life of residents. Traditionally they have authority to enact zoning ordinances to maintain their sense of community. Recently, counties have started to use their authority to limit the ability of natural gas drilling companies to conduct fracking operations within their borders. Now the industry is pushing back—hard.

Indeed, any action that limits fracking sends the oil and gas industry into high gear. The industry is already working to undermine new state regulations governing disclosure of chemicals used in fracking operations. Based on the experience of other states, we expect to see the industry seek legislation in Virginia’s upcoming General Assembly Session to block local authority over fracking.

New forms of “unconventional drilling,” including hydraulic fracturing or “fracking,” make drilling for natural gas potentially profitable in parts of Virginia that have no history of oil and gas development. Fracking companies have been travelling to new areas, leasing acres of land and approaching local governments for permits. Before considering permits, some local governments have insisted on researching fracking and its consequences.

This happened in 2010 in Rockingham County, which sits in the Shenandoah Valley atop a sliver of the Marcellus Shale. When a Texas-based drilling company requested permits to conduct fracking operations there, county supervisors decided they had better educate themselves on the subject. A Republican board member took the lead, investigating the safety records of fracking companies in other states and sounding the alarm about his findings. Facing growing opposition and unwilling to wait, and with falling gas prices making fracking in the county less profitable, the drilling company eventually withdrew its request.

Fracking also threatens the Tidewater area, where the U.S. Geological Survey estimates the Taylorsville Basin may contain over a trillion cubic feet of shale gas in an area underlying parts of more than a dozen Virginia counties. (A map of the Taylorsville Basin can be found here.) But while the potential for industry profits may be good, the potential risks are much greater. This low-lying region is in the Chesapeake Bay watershed and contains the Potomac Aquifer, which supplies water for drinking, agriculture and industry for almost half of Virginia’s population. In recognition of these unique environmental challenges, the Virginia Oil and Gas Act includes special provisions to protect the Tidewater Region. Two such provisions are the requirement of an environmental impact assessment for a permit, and a prohibition of drilling for oil or natural gas within 500 feet of the Chesapeake Bay or any tributary.

To add further safeguards, the King George Board of Supervisors proposed an ordinance in August 2015 with specific restrictions intended to protect the community from the noise, traffic and environmental degradation of fracking. After the gas industry threatened to sue, the Board held a new public hearing this year, then passed the ordinance with only slight modifications. Restrictions include a prohibition on well drilling within 750 feet of a waterway or road or occupied building, limiting drill sites to four acres, prohibiting holes from being bored within 100 feet of a property line, and requiring each company interested in drilling to apply for a special exception permit and to submit extensive information.

Although the oil and gas industry had tried to influence the Board’s decision with the threat of long and expensive litigation, its legal theory is weak. A 2015 opinion by Attorney General Mark Herring affirms that municipalities have the authority to use zoning ordinances to restrict fracking, including authority to prohibit it entirely within a jurisdiction. His opinion overturned that of the previous Attorney General, Ken Cuccinelli, who had stated that localities could not “ban altogether” oil and gas exploration and drilling through zoning ordinances. Even Cuccinelli, however, had conceded that a county “may adopt a zoning ordinance that places restrictions on the location and siting of oil and gas wells that are reasonable in scope and consistent” with applicable state laws.

If the industry can’t win in court, though, it may attempt to use the legislature to pass legislation taking away local governments’ ability to limit fracking. Given the historic influence the fossil fuel industry has on Virginia’s General Assembly, this poses a serious threat to localities that want to control their own fate.

The industry has an ally in this effort: the American Legislative Exchange Council (ALEC), a lobbying organization heavily funded by the fossil fuel industry. ALEC counts many conservative Virginia legislators among its members, as well as utility giant Dominion Resources. ALEC members draft and share model state-level legislation that favors corporate interests. ALEC claims to support sending power back to the local level, but in fact it consistently favors unlimited fossil-fuel extraction and burning, regardless of ALEC’s ostensible principles. So if local governments want to restrict fracking, while state legislatures are less inclined to do so, ALEC will likely favor blocking local government restrictions.

A recent news account revealed that ALEC and its local government affiliate, the American City-County Exchange (ACCE) are working to block local government action in states where the state legislature is more corporate-friendly than local governments. Thus we should be prepared to see ALEC insert itself in Virginia’s legislative process to try to block local restrictions on fracking.

Indeed, ALEC has already been working in other states to stop local governments from restricting fracking. This includes Texas, which passed a preemptive ban on local government efforts to stop fracking in 2015. In Florida, a similar ALEC-supported ban was defeated after opponents pointed out that the measure threatened localities’ traditional control over other local issues, such as education.

Linda Burchfiel is the Fracking Issues Chair for the Virginia Chapter of the Sierra Club.

Governor McAuliffe considers changes to Virginia fracking regulations, currently among worst in nation

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Over the past year, guest blogger John Bloom has been studying Virginia’s regulations governing hydraulic fracturing with horizontal drilling–fracking–and assessing the commonwealth’s readiness to welcome natural gas drilling companies into communities where they have never operated before. With the McAuliffe Administration preparing to address the issue for the first time with new regulations, I asked Bloom to take over the blog this week and tell us how things look. –I.M.

IMG_0634Proposed changes to Virginia’s gas drilling regulations are on their way to Virginia Governor Terry McAuliffe for review. If he approves, the revisions will go out for public comment. Public safety and environmental advocates generally welcome the changes, as far as they go. There’s just one problem: the changes fail to address many of the serious risks posed by fracking.

The dismal state of Virginia’s regulatory regime has become a pressing issue because, if the fossil fuel industry has its way, unconventional shale gas drilling – fracking[1] — will soon be a part of Virginia’s landscape. The gas industry sees opportunities to drill into the Marcellus Shale in western Virginia and the Taylorsville Basin in Tidewater Virginia, where 80,000 acres are under lease already.

Is Virginia ready for this kind of fracking? The fracking industry seems to think so, and Virginia’s Division of Mines, Minerals and Energy (DMME), the agency in charge of regulating gas drilling, seems to think its regulations just need a few tweaks to make fracking safe in Virginia.

Before deciding whether or not a few tweaks is all we need, let’s consider the views of a drilling industry insider. According to Louis Allstadt, Mobil Oil Corporation’s former head of oil and gas drilling in the Western Hemisphere, “making fracking safe is simply not possible, not with the current technology, or with the inadequate regulations being proposed.”[2] He warns that “the industry will tell you that fracking has been around a long time. While that is true, the magnitude of the modern technique is very new.” Fracking now requires 50 to 100 times more chemicals and water than older wells, according to Allstadt. “This requires thousands of trucks coming and going. It is much more a heavy industrial activity.” Further, he warns that methane, which is 86 times more potent as a greenhouse gas than carbon dioxide over a 20-year period, “is leaking from wells at far greater rates than were previously estimated.”

The health and environmental risks of fracking include a litany of short-term and long-term threats to air, water, land, and human and animal health. The risks come from many directions, including the drilling process, the fracking process, the chemicals used, which typically include potent carcinogens and endocrine disruptors, the handling and disposal of large quantities of toxic wastewater, potential earthquakes, the pipelines and compressor stations needed to transport the gas, and disruption of local communities with lights, noise, heavy truck traffic, and the constant prospect of disastrous explosions and other industrial accidents. For an excellent review of recent findings, check out A Compendium of Scientific, Medical, and Media Findings Demonstrating Risks and Harms of Fracking (Unconventional Gas and Oil Extraction), published by Concerned Health Professionals of New York in December 2014.

After carefully studying the risks, Maryland and New York recently declared statewide moratoriums on fracking. Like Allstadt, they found that the risks outweighed the benefits. Other states, such as Pennsylvania, Ohio and West Virginia, have embraced drilling and are learning the hard way that modern fracking – if it’s going to happen at all – requires much more careful regulatory oversight than traditional drilling.

Proposed Revisions to Virginia’s Drilling Regulations Are Grossly Inadequate

Virginia’s regulations start off in an embarrassing place. According to a 2013 survey of shale gas regulations across the country, using two different methodologies, Virginia had the least stringent regulations of all 31 states with actual or potential shale gas production.[3] Given that, and given the rapid pace at which other states are learning from mistakes and tightening regulations, you might expect Virginia to study the potential risks of modern fracking techniques carefully, as Maryland and New York did, before deciding whether to allow them. At the very least, you might expect Virginia to conduct a rigorous review and update of its regulations. Unfortunately, you would be wrong.

Instead of a thorough review, Virginia’s DMME conducted a controlled review intended to update only a few aspects of the regulations. A driving force behind the review seemed to be a request by the drilling industry for Virginia to join an industry-endorsed approach to disclosing fracking fluid ingredients while continuing to protect alleged trade secrets.

DMME convened a review panel that notably lacked anyone from the Virginia Department of Health (VDH) or anyone else with public health expertise, despite the major public health issues involved in fracking. DMME staff led the panel through a handful of issues. The panel came up with exactly what was intended: piecemeal updates when a broader effort was badly needed. When environmental groups proposed a more thorough regulatory review, they were told their proposals were simply beyond the scope of what DMME would consider.

So what are the shortcomings of the proposed revisions? There are many, and the devil is in the details. Here are just a few examples:

  • The regulations would continue to allow drilling wastewater to be disposed of by spreading it on roadways, agricultural and forest land. Other states have correctly concluded that this is simply not a safe way to dispose of fracking waste.
  • The regulations would continue to allow the industry to use open pits to store toxic wastewater, while other states such as Pennsylvania now require closed tanks to avoid leaks, spills, and harm to wildlife.
  • The regulations authorize disposing of wastewater at an “offsite facility,” yet water treatment plants in Virginia cannot effectively process fracking waste. This would result in toxins passing through untreated, damaging Virginia’s waterways. How toxic wastewater will be tracked and disposed of needs to be more clearly spelled out and regulated, as it is in other states.
  • In western Virginia, drilling companies would still be allowed to bury drilling muds and cuttings (drilling waste products) at the well-site instead of hauling them offsite for safe disposal. This practice can result in heavy metals, radioactive materials, and other toxins leaching into the groundwater and contaminating soils. That practice is now forbidden in Tidewater Virginia, reflecting a growing double-standard between protections offered to eastern versus western parts of the state. Is western Virginia somehow less worthy of protection?
  • Virginia’s regulations contain no testing requirements or limits on hazardous air pollution and methane emissions from gas drilling operations, despite the recognition of methane as a potent greenhouse gas. Federal regulations may provide a floor in this area, but Virginia should enact higher standards.
  • Virginia regulations contain only a single setback requirement that wells be at least 200 feet from an occupied building – literally a stone’s throw. Other states have developed much more protective siting requirements taking into account floodplains, public water supply watersheds, fisheries, special lands, schools, hospitals and other important considerations. Virginians should have similar protections spelled out in regulations.

Correcting these deficiencies, and many other suggestions made by the Sierra Club and other environmental groups, were rejected as beyond the scope of DMME’s review.

Now It’s Up to Governor McAuliffe

Three actions are needed at this point, and all of them fall squarely within the authority of Governor McAuliffe. The Governor should:

  1. Direct his Administration to conduct a broad study of the health, environmental, economic and other risks and benefits of unconventional shale fracking in Virginia, so that a considered decision can be made about whether these new forms of fracking should be allowed, and if so, what regulations are needed.
  2. Direct DMME to conduct a thorough regulatory review that takes into account the findings of the Administration’s study and the extensive lessons learned from other states.
  3. Direct that no permits for unconventional shale drilling be approved until the first two steps have been completed.

As long as he takes the steps outlined above, it doesn’t matter much what the Governor does with the weak piecemeal regulatory revisions currently under his review. They could be folded into the broader regulatory review or enacted separately. The important thing is that the Governor isn’t fooled into thinking that these revisions are an adequate response to the threat fracking poses to Virginia’s health, safety and environment.

Taking these three steps should not be difficult for Governor McAuliffe. It would put into practice precisely the position on fracking that he took as a candidate in 2011:

“We should not do any of these techniques here in Virginia until everyone is 100 percent – 100 percent – sure of safety as it relates not only to the watershed but everything that comes off of that, as it relates to uranium, natural gas fracking… Let’s look at all the alternatives. Wind is clean, wind is safe. Solar is clean, solar is safe. So let’s get everything moving forward (while) studying these other things.”[4]

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John Bloom, a public interest consultant, is chair of public health issues for the Virginia Chapter of the Sierra Club and serves on the Executive Committee of the Sierra Club’s Mount Vernon Group.

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[1] As used here, “fracking” and “unconventional drilling” refer to newer forms of high volume hydraulic fracturing, or similar forms of well stimulation using liquid nitrogen or other materials, combined with horizontal drilling.

[2] Allstadt was referring to draft regulations in New York, which were much more stringent than Virginia’s. See Brian Neering, Albany Times-Union, April 22, 2014, “Former Mobil Oil exec urges brakes on gas fracking,” available online at http://www.timesunion.com/business/article/Former-Mobil-Oil-exec-urges-brakes-on-gas-fracking-5422292.php.

[3] Nathan Richardson et al, The State of State Shale Gas Regulation, at pages 18, 20 (June 2013), available at http://www.rff.org/rff/documents/RFF-Rpt-StateofStateRegs_Report.pdf.

[4] Terry McAuliffe, in an interview with Jan Paynter, Host, Politics Matters, September 2011. Available online at https://www.youtube.com/watch?v=EFvDrh92xpM.