A new report
offers compelling evidence that fracking for natural gas is killing domestic
animals like horses, cattle, goats, and 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 numerous 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, Maryland, 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.
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