Waterboarding Nature: Fracking in Maryland

It’s been a very strange process since Governor O’Malley issued his Executive Order in 2011 to begin the development of fracking regulations in Maryland. If you look closely at the announcements and wording, it doesn’t seem as though his office or administration ever thought an outright rejection or ban was needed – or possible. Much of the same logic, however, he applied to oppose oil drilling off the Atlantic Coast applies to fracking in Western Maryland. It’s the precautionary principle which New York State applied so simply and powerfully on December 17th, just three weeks after the Governor’s Green Light.

Some thoughts on incoming Governor Hogan and the new Dept. of the Environment head in MD, Benjamin Grumbles as well….


February 9, 2015

TITLE 26, Department of the Environment
Subtitle 19 Oil and Gas Resources
Chapter 01 Oil and Gas Exploration and Production
(COMAC: 26.19.01)
Maryland (Public) Register, Vol. 42, Issue 1, Friday, Jan. 9, 2015 (pp. 94-116).

Dear Ms’s. Kenney & Conn, and Mr. Fretwell:

Please accept these comments from a citizen of Maryland since 2005, who is currently a resident of Frostburg, Maryland, in western Allegany County.

I appreciate all the work that has gone into these regulations from scientists, environmental professionals and citizens. However, I believe because of the current “contexts,” and the nature of fracking itself, that this method of extraction for natural gas cannot be safely done, violates the elementary good sense of the precautionary principle, and also sadly, and by the very title of the process initiated by Governor O’Malley’s Executive Order in 2011, probably was slanted towards a “green light” from the very beginning. That’s the same, almost permanent “green light” that has hovered over the “boom and bust” mentality of American economic life since colonial times, and which shone so brightly, in a very tragic way, at the end of “Daisy’s dock” in F. Scott Fitzgerald’s “The Great Gatsby.”

I also believe that the process was extremely cumbersome and difficult for the average citizen to follow, unless these citizens in a difficult economic climate were inclined to abandon their daytime jobs and devote themselves to full time reading, digesting and commenting upon the many confusing reports, and attending all the public meetings. And in the end, with a few powerful sentences at a cabinet meeting in Albany, New York on December 17, 2014, just three weeks after Governor O’Malley’s “green light” in Maryland, Dr. Howard Zucker, the New York state Health Commissioner, cast all Maryland’s seeming hard work into doubt by saying “‘the potential risks are too great. In fact, they are not even fully known.’” New York State, then, under Democratic Governor Andrew Cuomo, chose to hang a red light at the end of Daisy’s home state dock, not a green one.

I mentioned just above that there were many important contexts to this whole Maryland process of examining whether fracking can be safely done in Maryland, or anywhere else. Let me now begin to explain those contexts.

The first ones are personal. In my former professional life, I was the Director of Conservation for New Jersey Audubon Society, handling policy and lobbying in Trenton and Washington, from 1989 until June of 2001. I can confidently say I participated in and/or monitored many winding and convoluted public environmental processes initiated by the state’s Department of Environmental Protection, including the evolution of the “watershed approach” to regulations, but I’ve never seen one as herky-jerky, or as hard to follow as this one in Maryland, especially from the vantage point of the average citizen – which in a democratic republic ought to be the point of the process, right, even with all due allowance to the science involved? Well, maybe not any longer.

I also lived for almost a decade on a farm of 67 acres in the New Jersey Highlands, the physiographic and geologic equivalent of the western Maryland mountains where fracking is projected to first occur. The mountains of the NJ Highlands are not as high as the ones of Maryland, but they still have lots of steep slopes, streams and lakes, and offered a great opportunity for this hiker and walker to study the behavior of water flows on steep gradients. Therefore I’ve heard lots of arguments about the “safe buffer” distances between “development” and water resources. And the answer from my career was: the safest buffer of all is not to place inappropriate developments in watershed areas in the first place, and NJ actually put that idea into force with its Highlands Commission in 2004-2005, perhaps the entire nation’s last and toughest land and water regulatory program, a surprise to all deep into our historical era of “Market Utopianism,” and the accompanying anti-regulatory, anti-government biases. And one, I might add, which is being undone by hostile appointments and attitudes via the administration of Governor Chris Christie, the same Chris Christie who did the cameo introduction of incoming Maryland Governor Larry Hogan on snowy Inauguration Day in Annapolis – live and onstage. Agreeable and bi-partisan was the message from the Governor of the Garden state – never sacrificing principles of course – they would be the ones of conservative ideology – but all in all, a reasonable man presenting himself. Too bad he’s been on an anti-environmental rampage in New Jersey all this time. Maryland does not want to copy his actions in our environmental agencies.

I also had plenty of opportunity to hear about NJ’s Superfund sites, which decades after their corporate “founders” had left the scene were still leaking toxic fluids into underground “plumes” which were always surprising their scientific monitors, and the GIS geeks with their wayward and unpredictable paths. Indeed, NJ’s experience was a difficult one, with those “surprising” groundwater flows causing considerable expense and troubles to two of our most famous highways, Route 78 in the western Highlands, and Route 287 in the same formation on the eastern side of the state. (Editor’s Note: the problem in the road cuts through the mountains was the appearance of ground water in large amounts in unexpected cases, not toxic plumes, just to be clear. In the winter at Musconetcong Mountain, aka known as “Jug Town Mtn.” the cascading water down the mountain cuts freezes in giant icicles, like small glaciers, giving an Alpine appearance to mundane old NJ).

And last, but not least, I had the chance in 2014 to do some research on fracking incidents in Maryland’s neighboring states, in West Virginia and Pennsylvania, states which have yet to recover fully from the environmental damage of their coal age “experiences,” but yet which have, out of economic desperation, gone “all in” on the latest carbon binge brought to their table. What I learned was that the explosions, fires, spills and leaks came in some cases from outright and seemingly illegal corporate practices and carelessness, as when neither a drill pad nor the workers had gas leak monitors.

But I also learned that even when everything was done carefully and legally, there was something inherently dangerous and unpredictable in the process of extraction, transfer and processing that can perhaps be reduced, but never eliminated. And which can occur at any stage of the process, and has. Given the nature of the process, and the vast range of surface operations which are inherent in the operations, and these are 24/7 operations, even if I believed in the regulations before us, these are activities which never should be allowed in watershed, water supply areas – with their springs, recharge zones and surface reservoir features. Even with buffers of a mile, and the best of the proposed ones on the table are only 2/5’s of that, if the operations are upslope, the resources cannot be protected. And formal buffers won’t help if a truck carrying “secret” chemicals fractures and spills its load into a feeder stream, maybe in the middle of the night. Maybe it will be that a good and alert driver will only swerve to, understandbly out of unthinking reflex action, avoid a deer – or, in this region a bear, or maybe a bobcat. And then there are the rumored West Virginia mountain lions…all worth hitting the brakes for…

There is something, however, much more basic and troubling to the whole fracking enterprise, or adventure, perhaps that’s the better word, and it has been there from the beginning. This comes from an industry that tried to shield its basic processes and even what chemicals it uses, including very toxic ones, from existing and relevant national laws, especially in 2005. Some curious and pushy public critics have had some tough questions for incoming Secretary of the Environment Grumbles about his proximity to those events, but he’s shaken them off. Political adjustments over and outside the regulatory agencies. Hmm. Let’s keep that in mind, shall we? I’m troubled by this industry’s desire to shield its basics from even land-owners with whom it “contracts,” and from medical personnel as well. It’s a strong clue that there is something very wrong and very dangerous with the whole premise and operations. Nothing I have since learned about what has unfolded in West Virginia and Pennsylvania has altered my initial gut response to the nature of fracking: it is a violent and dangerous operation from A to Z and not worth it.

But let’s get to the unknowns and the precautionary principle.

“When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically. In this context the proponent of an activity, rather than the public, should bear the burden of proof. The process of applying the precautionary principle must be open, informed and democratic and must include potentially affected parties. It must also involve an examination of the full range of alternatives, including no action.”Wingspread Statement on the Precautionary Principle, Jan. 1998

The fracking industry claims that because what it injects has its targets many thousands of feet below the level of underground aquifers, 4,000 to 6,000 feet, the fluids it injects are not a threat, even though 50-75%, or even higher will remain underground. We know, of course that the process of drilling and “sealing” does offer good and likely pathways into aquifers and wells, but it is what we are learning about the high pressure fracking process itself that causes my worries over the long term safety of the processes, which will have to be secure for hundreds of years, maybe thousands. Yet we now know that the high pressures and volumes of the horizontal fracking wells cause many small earthquakes which transmit their pressure waves, and damages, upwards. Remember, that by intent, the process is opening up many new fractures, as well as hoping that there are no natural ones unmapped in the areas of operations, and unknown fault lines as well.

We know however, that we can’t be aware of all the existing unmapped fractures and faults, that’s just a fact of geologic life. So how do we know that new pathways to underground water supplies are not opened up by the process itself, to show up in…how many years later? Well, we don’t have any idea or handle on what the time frames are. In reality, the procedure proposed have to be safe for good, for thousands of years perhaps. And citizens don’t have any right to know what has been injected. That speaks “volumes” about the nature of the risks and the industry that asks us to “trust them.” For me, reading and digesting the PA and WVA experiences, that trust evaporated a long time ago.

Why would any sensible person “vote” for these unknown and unmeasurable risks, ones which will have a time frame of hundreds or even thousands of years?

They wouldn’t, and I don’t accept them, good regulations or not. And come to think of it, they really haven’t had a chance to vote on it, unless one considers Governor Hogan’s election as a ratification of this process.

Even if these regulations were entirely adequate, there is much more to say about the contexts in which they would operate. I know something about those contexts from my professional environmental life in New Jersey. And my participation on Governor O’Malley’s Transition Team for “Smart Growth,’ for which I wrote about a quarter of the final report. Regulations are only as good as the tenacity and commitment of those who will oversee and administer them, their commitment to the public common good, and of course, the resources they will have at their disposal to monitor the key processes. Let me say this from first-hand experience: despite its reputation, Maryland has never had the land-use or water resource protections that New Jersey has and I could tell from the mood and signals of the Transition Team I worked on that Maryland wants low key and industry deferential regulators, not regulatory tigers.

Let’s face the historical facts, citizens and regulators. We are still living in the age of neoliberalism, deeply so, what I like to call the age of Market Utopianism. From the declared values of the Republican Right, and you could hear this in Governor Larry Hogan’s Inaugural and State of the State addresses, the outlook will be anti-government and anti-regulatory, to get the state out of the pockets and off the backs of the people of the state, and especially the entrepreneurs upon which it is said all modern life revolves, including the oil and gas industry. And this program is anti-tax as well; how will the Maryland regulators get the new personnel, equipment and financing to carry out the regulation of the proposed activities? I

f the career and past public pronouncements of the incoming head of the Department of the Environment, Benjamin Grumbles, is any clue, and he has provided us many of them in his various roles since 2004, when he went to the federal EPA, there will be no tough negotiations with the industry: there will be low key compromises and voluntary compliance protocols. And even if I am underestimating the stiffness of Mr. Grumble’s backbone, he will not have the final say: that will reside firmly in the Governor’s office.

And let me add this additional context about the nature of environmental regulation since the rise of Market Utopianism in the US, since the election of Ronald Reagan in 1980. We have renewed none of our most cherished and important environmental founding laws from the earlier decade, they are all immersed in the very type of ideological gridlock that Larry Hogan says he wants to avoid in Maryland. But as he will soon find out, the gridlock is inherent in the ideas behind the ideology of the market Uber Alles which both the Right, incoming Governor Hogan, and the center, Departing Governor Martin O’Malley, stand for. And that is because, as we saw in the failure of many, many layers of financial regulation which were still in place prior to the great financial crisis of 2007-2008 (and to be sure, many had been weakened or repealed), the very standing and self-conception of the roles of regulators, governmental regulators, had been shrunken over the years to the point where they dared not stand up to the desires and schemes of the private sector. Titles and salaries they had under the regime of Market Utopianism; standing they did not have in all the informal ways their roles had changes between 1980 and 2007. And those who did make a stand, an Alamo stand, like Brooksley Born, were subject to ferocious attacks and driven from office, which I remind you, occurred under former Democratic President Bill Clinton and the “Committee to Save the World”: Alan Greenspan, Larry Summers and Robert Rubin. And my sense of Benjamin Grumbles is this: you’re no Brooksley Born, Mr. Grumbles. I hope I am wrong, very wrong, on that count, but as I’ve said, it may not matter because the final power does not reside in his department.

For all these reasons, I oppose the proposed regulations, ones which are likely to be greatly weakened by Governor Hogan, and underfunded as well. I believe the best chance the citizens of Maryland have to protect their health and their fragile natural resources, especially their water resources in Allegany and Garrett Counties, is to enact the legislative Moratorium in Annapolis, the Protect Our Health and Communities Act (SB 409;HB-0449).

And one final, ironic word on these proposed fracking regulations. I would be articulating the positions I have just laid out even if there was not one more additional context which must be considered to make sense out of our 2015 moment. And that is that waterboarding the earth via fracking for the very last dregs of remaining hydro-carbons makes no environmental sense given that the efforts will certainly push us over the acceptable limits of C02, triggering irreversible and perhaps catastrophic climate events. That is what extracting and burning these last remnants of the carbon age will do, James Hansen has told us, and I’ve been following his thinking since 1988. We are living in an era, however, when these are not our only choices.

Alternative energy sources are here now, and I can see 13 of them on my Frostburg horizon, standing alongside Mountain Ridge High School and looking west, that historically beckoning American direction. They are turning in the wind. And the wind, it seems, never stops blowing here in Frostburg. A huge energy source if we can get decent citing protections in place. And the legislature should push Maryland further down this very different path by passing the Clean Energy Advancement Act (HB 377/SB 373).

Wind Power Contracts

Heading down the dangerous fracking path is only going to delay the alternative energy future, and cede even more of it to Germany and China, our economic rivals. If Governor Hogan really wants to promote jobs in Maryland, backing this Clean Energy bill is a far better way to do it than waterboarding nature in Western Maryland. And if he pushes fracking there, he may well bury some good green entrepreneurs who form one of the few existing job “streams” we have out here. So fracking, even regulated fracking, makes no sense to me, given the risks and the very viable alternatives.


William R. Neil
Frostburg, MD

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