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Protected: Petrochemical Toxics in the Ohio River Watershed

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Ongoing Safety Concerns over Shell’s Falcon Pipeline

Ohio River Valley Groups react to a new safety warning issued by federal regulators to Shell regarding the troubled Falcon Pipeline

Ohio, West Virginia, Pennsylvania Fracking Story Map

FracTracker’s aerial survey of unconventional oil & gas infrastructure and activities in northeast PA to southern OH and central WV

Ohio & Fracking Waste: The Case for Better Waste Management

Insights on Ohio’s massive fracking waste gap, Class II injection well activity, and fracking waste related legislation

Shell’s Falcon Pipeline Under Investigation for Serious Public Safety Threats

 

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Breaking News

The Falcon Ethane Pipeline System is at the center of major investigations into possible noncompliance with construction and public safety requirements and failing to report drilling mud spills, according to documents obtained from the Pennsylvania Department of Environmental Protection (PA DEP) by FracTracker Alliance. These investigations, which are yet to be released, also uncovered instances of alleged data falsification in construction reports and Shell Pipeline Company firing employees in retaliation for speaking up about these issues.

3/17/21 Press release: https://www.fractracker.org/falcon-investigation-press-release-fractraccker-alliance/

Key Takeaways

  • Shell’s Falcon Pipeline, which is designed to carry ethane to the Shell ethane cracker in Beaver County, PA for plastic production, has been under investigation by federal and state agencies, since 2019. The construction of the pipeline is nearing completion.
  • Allegations in these investigations include issues with the pipeline’s coating, falsified reports, and retaliation against workers who spoke about issues.
  • Organizations are calling on public agencies to take action to protect public welfare and the environment along the entire pipeline route through Ohio, West Virginia, and Pennsylvania.
  • These investigations reveal yet another example of the life-threatening risks brought on by the onslaught of pipeline construction in the Ohio River Valley in the wake in the fracking boom. They also reveal the failure of public agencies to protect us, as documents reveal the federal agency that oversees pipeline safety did not adequately respond to serious accusations brought to its attention by a whistleblower.
  • These new concerns are coming to light as people across the country are demanding bold action on plastic pollution and the climate crisis through campaigns such as Build Back Fossil Free, Plastic Free President, and Future Beyond Shell. On a local level, residents in the Ohio River Valley continue to shoulder the health burdens of the fracking industry, despite a recent ban on fracking in the eastern part of Pennsylvania, which a growing body of scientific evidence verifies. The Falcon Pipeline, which would transport fracked gas for plastic production, is directly at odds with these demands.

Shell’s attempts to cut corners while constructing this 98-mile pipeline, likely motivated by the increasingly bleak economic prospects of this project, present serious public safety concerns for the thousands of residents along its route in Pennsylvania, West Virginia, and Ohio.

These allegations are serious enough to warrant immediate action. We’re calling on the Pipeline and Hazardous Materials Safety Administration (PHMSA) to thoroughly examine these allegations and suspend construction if not yet completed, or, in the case that construction is complete, operation of the Falcon Pipeline. Furthermore, we call on state environmental regulators to fully investigate construction incidents throughout the entire pipeline route, require Shell Pipeline to complete any necessary remediation, including funding independent drinking water testing, and take enforcement action to hold Shell accountable. Read our letters to these agencies here.

These investigations were featured in a March 17th article by Anya Litvak in the Pittsburgh Post-Gazette.

3/18/21 update:

Additional coverage of this story was published in a Times Online article by Daveen Ray Kurutz, a StateImpact Pennsylvania article by Reid Frazier, and an Observer-Reporter article by Rick Shrum.

Pipeline workers speak out

According to documents obtained through a public records request, a whistleblower contacted PHMSA in 2019 with serious concerns about the Falcon, including that the pipeline may have been constructed with defective corrosion coating. PHMSA is a federal agency that regulates pipeline operation. The whistleblower also shared environmental threats occurring within the DEP’s jurisdiction, prompting the PA DEP and Pennsylvania Attorney General’s Office to get involved.

Many of the issues with the Falcon relate to a construction method used to install pipelines beneath sensitive areas like roads and rivers called horizontal directional drilling (HDD). Shell Pipeline contracted Ellingson Trenchless LLC to complete over 20 HDDs along the Falcon, including crossings beneath drinking water sources such as the Ohio River and its tributaries. FracTracker and DeSmog Blog previously reported on major drilling mud spills Shell caused while constructing HDDs and how public agencies have failed to regulate these incidents.

Falcon Pipeline Horizontal Directional Drilling locations and fluid losses

This map shows the Falcon Pipeline’s HDD crossings and spills of drilling fluid spills that occurred through 3/5/2020. To see the data sources, click on the information icon found in the upper right corner of the map header as well as under the map address bar.

View Map Full Sized | Updated 6/16/20

 

PHMSA’s incomplete investigation

Correspondence between the PA DEP and PHMSA from February 26, 2020 reveal the gravity of the situation. While PHMSA conducted an inquiry into the whistleblower’s complaints in 2019 and concluded there were no deficiencies, PA DEP Secretary Patrick McDonnell wrote that his agency felt it was incomplete and urged PHMSA to conduct a more thorough investigation. Secretary McDonnell noted the PA DEP “has received what appears to be credible information that sections of Shell’s Falcon Pipeline project in western PA, developed for the transportation of ethane liquid, may have been constructed with defective corrosion coating protection,” and that “corroded pipes pose a possible threat of product release, landslide, or even explosions.”

FracTracker submitted a Freedom of Information Act request with PHMSA asking for documents pertaining to this inquiry, and was directed to the agency’s publicly available enforcement action webpage. The page shows that PHMSA opened a case into the Falcon on July 16, 2020, five months after Secretary McDonnell sent the letter. PHMSA sent Shell Pipeline Company a Notice of Amendment citing several inadequacies with the Falcon’s construction, including:

  • inadequate written standards for visual inspection of pipelines;
  • inadequate written standards that address pipeline location as it pertains to proximity to buildings and private dwellings;
  • compliance with written standards addressing what actions should be taken if coating damage is observed during horizontal directional drill pullback; and
  • inadequate welding procedures

Shell responded with its amended procedures on July 27, 2020, and PHMSA closed the case on August 13, 2020.

Of note, PHMSA states it is basing this Notice on an inspection conducted between April 9th and 11th, 2019, when construction on the Falcon had only recently started. PHMSA has con­firmed its in­ves­ti­ga­tion on the Falcon is on­go­ing, however we question the accuracy of self reported data given to PHMSA inspectors should be questioned

The PA DEP also brought the matter to the attention of the US Environmental Protection Agency.

Timeline of events in the Falcon investigation

Public knowledge of these investigations is limited. Here’s what we know right now. Click on the icons or the event descriptions for links to source documents.

Ohio and West Virginia

The Falcon pipeline also crosses through Ohio and briefly, West Virginia. While we do not know how these states are involved in these investigations, our past analyses raise concerns about the Ohio Environmental Protection Agency’s (OEPA) ability to regulate the pipeline’s HDD crossings.

One of the focuses of the Pennsylvania DEP’s investigation is the failure to report drilling fluid spills that occur while constructing a HDD crossing. The PA DEP shut down all HDD operations in November, 2019 and forced Shell to use monitors to calculate spills, as was stated in permit applications.

 

A horizontal directional drilling (HDD) construction site for the Falcon Pipeline in Southview, Washington County, Pennsylvania. You can see where the drilling mud has returned to the surface in the top left of the photo. Photo by Cyberhawk obtained by FracTracker Alliance through a right-to-know request with the Pennsylvania Department of Environmental Protection.

 

 

The Falcon Pipeline’s HDD locations are often close to neighborhoods, like the HOU-02 crossing in Southview, Washington County, Pennsylvania. Photo by Cyberhawk obtained by FracTracker Alliance through a right-to-know request with the Pennsylvania Department of Environmental Protection.

 

To our knowledge, the OEPA did not enforce this procedure, instead relying on workers to manually calculate and report spills. Shell’s failure to accurately self-report raises concerns about the safety of the Falcon’s HDD crossings in Ohio, including the crossing beneath the Ohio River, just upstream of drinking water intakes for Toronto and Steubenville, Ohio.

Public water system wells, intakes, and Drinking Water Source Protection Areas nears the Falcon Pipeline Route

Public water system wells, intakes, and Drinking Water Source Protection Areas nears the Falcon Pipeline Route. Note, the pipeline route may have slightly changed since this map was produced. Source: Ohio EPA

 

The Shell ethane cracker

The Falcon is connected to one of Shell’s most high-profile projects: a $6 billion to $10 billion plastic manufacturing plant, commonly referred to as the Shell ethane cracker, in Beaver County, Pennsylvania. These massive projects represent the oil and gas industry’s far-fetched dream of a new age of manufacturing in the region that would revolve around converting fracked gas into plastic, much of which would be exported overseas.

Many in the Ohio River Valley have raised serious concerns over the public health implications of a petrochemical buildout. The United States’ current petrochemical hub is in the Gulf Coast, including a stretch of Louisiana known colloquially as “Cancer Alley” because of the high risk of cancer from industrial pollution.

Construction of the ethane cracker and the Falcon pipeline have forged forward during the COVID-19 pandemic. In another example of the culture of fear at the worksite, several workers expressed concern that speaking publicly about unsafe working conditions that made social distancing impossible would cost them their jobs. Yet the state has allowed work to continue on at the plant, going so far as to grant Shell the approval to continue work without the waiver most businesses had to obtain. As of December 2020, over 274 Shell workers had contracted the coronavirus.

Weak outlook for Shell’s investment

While the oil and gas industry had initially planned several ethane crackers for the region, all companies except for Shell have pulled out or put their plans on hold, likely due to the industry’s weak financial outlook.

A June 2020 report by the Institute for Energy Economics and Financial Analysis (IEEFA), stated that:

Royal Dutch Shell owes a more complete explanation to shareholders and the people of Pennsylvania of how it is managing risk. Shell remains optimistic regarding the prospects for its Pennsylvania Petrochemical Complex in Beaver County, Penn. The complex, which is expected to open in 2021 or 2022, is part of a larger planned buildout of plastics capacity in the Ohio River Valley and the U.S. IEEFA concludes that the current risk profile indicates the complex will open to market conditions that are more challenging than when the project was planned. The complex is likely to be less profitable than expected and face an extended period of financial distress.

Many of Pennsylvania’s elected officials have gone to great lengths to support this project. The Corbett administration enticed Shell to build this plastic factory in Pennsylvania by offering Shell a tax break for each barrel of fracked gas it buys from companies in the state and converts to plastic (valued at $66 million each year). The state declared the construction site a Keystone Opportunity Zone, giving Shell a 15-year exemption from state and local taxes. In exchange, Shell had to provide at least 2,500 temporary construction jobs and invest $1 billion in the state, giving the company an incredible amount of power to decide where resources are allocated in Pennsylvania.

Would the state have asked Shell for more than 2,500 construction jobs if it knew these jobs could be taken away when workers spoke out against life-threatening conditions? Will the politicians who have hailed oil and gas as the only job creator in the region care when workers are forced to hide their identity when communicating with public agencies?

States fail to regulate the oil and gas industry

The PA DEP appears to have played a key role in calling for this investigation, yet the agency itself was recently at the center of a different investigation led by Pennsylvania Attorney General Josh Shapiro. The resulting Investigating Grand Jury Report revealed systematic failure by the PA DEP and the state’s Department of Health to regulate the unconventional oil and gas industry. One of the failures was that the Department seldom referred environmental crimes to the Attorney General’s Office, which must occur before the Office has the authority to prosecute.

The Office of Attorney General is involved in this investigation, which the PA DEP is referring to as noncriminal.

The Grand Jury Report also cited concerns about “the revolving door” that shuffled PA DEP employees into higher-paying jobs in the oil and gas industry. The report cited examples of PA DEP employees skirting regulations to perform special favors for companies they wished to be hired by. The watchdog research organization Little Sis listed 47 fracking regulators in Pennsylvania that have moved back and forth between the energy industry, including Shell’s Government Relations Advisor, John Hines.

National attention on pipelines and climate

The Falcon Pipeline sits empty as people across the nation are amping up pressure on President Biden to pursue bold action in pursuit of environmental justice and a just transition to clean energy. Following Biden’s cancellation of the Keystone XL pipeline, Indigenous leaders are calling for him to shut down other projects including Enbridge Line 3 and the Dakota Access Pipeline.

Over a hundred groups representing millions of people have signed on to the Build Back Fossil Free campaign, imploring Biden to create new jobs through climate mobilization. Americans are also pushing Biden to be a Plastic Free President and take immediate action to address plastic pollution by suspending and denying permits for new projects like the Shell ethane cracker that convert fracked gas into plastic.

If brought online, the Falcon pipeline and Shell ethane cracker will lock in decades of more fracking, greenhouse gasses, dangerous pollution, and single-use plastic production.

Just as concerning, Shell will need to tighten its parasitic grip on the state’s economic and legislative landscape to keep this plant running. Current economic and political conditions are not favorable for the Shell ethane cracker: financial analysts report that its profits will be significantly less than originally presented. If the plant is brought online, Shell’s lobbyists and public relations firms will be using every tactic to create conditions that support Shell’s bottom line, not the well-being of residents in the Ohio River Valley. Politicians will be encouraged to pass more preemptive laws to block bans on plastic bags and straws to keep up demand for the ethane cracker’s product. Lobbyists will continue pushing for legislation that imposes harsh fines and felony charges on people who protest oil and gas infrastructure, while oil and gas companies continue to fund police foundations. Shell will ensure that Pennsylvania keeps extracting fossil fuels to feed its ethane cracker.

The Falcon pipeline is at odds with global demands to address plastic and climate crises. As these new documents reveal, it also poses immediate threats to residents along its route. While we’re eager for more information from state and federal agencies to understand the details of this investigation, it’s clear that there is no safe way forward with the Falcon Pipeline.

Royal Dutch Shell has been exerting control over people through the extraction of their natural resources ever since it began drilling for oil in Dutch and British colonies in the 19th Century. What will it take to end its reign?

 

References & Where to Learn More

Topics in this Article

Health & Safety | Legislation & Politics | Petrochemicals & Plastics | Pipelines

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Mapping intersectionality: Empowering youth addressing plastics

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Overview

A new collaboration between FracTracker Alliance and Algalita is aiming to help middle school and high school students understand the connection between plastics and fracking and the wide ranging implications for climate change, environmental injustice, and human health.


Most young people today understand that plastics are problematic. But, there is still often a disconnect between the symptom of plastics in our oceans, and the root causes of the problem. Algalita’s mission is to empower a new generation of critical thinkers to shift the broken and unjust systems that are causing the plastic pollution crisis. Algalita’s strategy is creating educational experiences directly with the movement’s diverse leaders, and this new project with FracTracker is a perfect example. 

Specifically, Algalita and FracTracker have been working together to add new lessons to Algalita’s brand-new online, gamified, action platform: Wayfinder Society. Through this program, students can guide their own exploration of the complexities of the plastics issue, and can take action at their own pace and scale, by completing lessons and action-items (called Waymarks) based on difficulty, topic, and type of impact. 

The first of two FracTracker Waymarks outlines the connection between fracking and plastic production. Students explore a map showing the full plastics production process from fracking pads, to pipelines, to ethane crackers, and packaging factories. 

In a second Waymark that builds off of the first, students explore the massive petrochemical buildout on the Gulf Coast and in the Ohio River Valley. The map allows students to analyze the greenhouse gas emissions predicted for this buildout using the data point pop-up boxes. They can also examine the effects of climate change on communities amongst the buildout by viewing the coastal flood zone areas in Texas and Louisiana. Beyond that, students can investigate how facilities are impacting their peers in schools close to massive ethane cracker facilities. Finally, students are introduced to the movement’s #PlasticFreePresident Campaign, giving them a direct action to apply their new knowledge. 

Mapping Fracking’s Link to Plastic Production

This StoryMap was created by FracTracker for Wayfinder Society, a program by Algalita. Learn more at Algalita.org. Place your cursor over the image and scroll down to advance the StoryMap and explore a series of maps charting the fracking-for-plastic system. Click on the icon in the bottom left to view the legend. Scroll to the end of the StoryMap to learn more and access the data sources.

View Full Sized Map | Updated 11/20

 

Algalita is excited about this partnership for so many reasons. For one, GIS is a critical skill for young people to learn. These two Waymarks pose an accessible and non-intimidating introduction to ArcGIS by using simple maps and StoryMaps like the one above. The maps let students get comfortable with GIS concepts and capabilities like layers, data attribute tables, measuring tools, and filters. Allowing students to explore how plastics are produced through a geographical lens provides a unique visual and interactive experience for them. The goal is for students to be able to connect petrochem buildout, with the plastics, climate and justice issues that they are focusing on often separately. Our aim is that by putting this part of the story in context of real physical space they will more easily make those connections. We hope these lessons spark some students’ interest in mapping, geography, and GIS, providing a new generation of changemakers with GIS in their toolbox. 

On top of that, we are stoked to be building this partnership with FracTracker because the success of our collective movement depends on strong, clear communication and synergies between the nodes of the movement’s network.  The FracTracker Waymarks give our Wayfinders direct access to real-time data, visualizations, and expert insights that they can then use to level-up their actions and stories around their activism. And, they connect the dots not just for students, but also for educators and movement partners like us at Algalita we are all for this powerful lever for change!

Check out Wayfinder Society here. Access the FracTracker Waymarks here and here but you’ll need to be logged in. If you’re a student, get started by creating a profile, and then start earning Cairns (points)! If you’re an educator, parent or mentor, and interested in exploring the site, email us here for the guest login. 

By Anika Ballent, Education Director, Algalita

Algalita empowers a new generation of critical thinkers who will shift the broken and unjust systems that are causing the plastic pollution crisis.  We do this by offering educational experiences created directly with the movement’s diverse leaders.

Anika has been working in the movement against plastic pollution for ten years, studying microplastics in benthic and freshwater environments. She brings together her science background and creativity to educate young changemakers through hands-on experiences in schools, Algalita’s International Youth Summit, and online programs.


References & Where to Learn More

Algalita.org

Data Sources:

ATEX Pipeline: EIA

Railroad: Selection from ArcGIS online

Process information: Houston Chronicle

Falcon Pipeline: Shell/AECOM and FracTracker Alliance

Mariner East 2 Pipeline: PA DEP

Greenhouse gas emission increases: Environmental Integrity Project. (2020, November 30). Emission Increase Database. Retrieved from https://environmentalintegrity.org/oil-gas-infrastructure-emissions.

All other data points were mapped by FracTracker Alliance referencing various online sources. While this map is based on actual infrastructure, it is intended as a model of the fracking-for-plastic lifecycle and certain steps may vary in real life.

Topics in This Article

Petrochemicals & Plastics


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Utica and Marcellus shale plays in the Appalachian Basin map

Fracking Waste in the Appalachian Basin – A Story Map

 

The production of fracking waste in the Appalachian Basin puts public health and safety at risk.

 

Fracking produces more than just oil and gas — billions of gallons of highly toxic waste are also created in the process. Regulatory loopholes have led to limited oversight into how this waste is tracked and treated, putting public health and safety at risk.

The maps below explore issues related to fracking waste from the Marcellus and Utica Shale regions of Pennsylvania, Ohio, New York, and West Virginia.

We suggest viewing this map fullscreen (click the link to do so)

View the map fullscreen

 

This mapping platform is an evolving tool based on available data — yet the opaqueness of the fracking industry limits our ability to map and analyze the full scope of the problem of fracking waste in the Appalachian Basin.

Unfortunately, even after sifting through thousands of data points, we’re left with many outstanding questions — what are the chemical components of the waste created? Where is it all sent? Where are its byproducts sent? What facilities are being planned and proposed? How much illegal dumping occurs?

The production of fracking waste in the Appalachian Basin will continue to create environmental and public health threats for decades after the industry leaves the region. Wells can continue to generate wastewater for years and contaminated equipment sent to landfills will leach toxins into the environment. Furthermore, with the industry’s history of failing to restore land after it has been used for oil and gas operations, we can expect abandoned fracking sites to become an increasing source of pollution in the Appalachian Basin in the coming decades. It’s imperative that the public have access to accurate and detailed data on fracking waste to protect the health of workers and residents.

By Erica Jackson, Community Outreach & Communications Specialist, FracTracker Alliance

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FracTracker in the Field: Building a Live Virtual Map

 

August 19, 2020 Update:

The virtual story map is live!


In this special one-day fundraiser event, two intrepid FracTracker teams will build and share a live virtual map as we travel throughout the Ohio River Valley Region documenting oil, gas, and its effects on our health, climate, and environment.

How many sites can we visit in one day? What will we find?

 

 

 

We’ll share our findings to build awareness about the plight of this region—and so many other places victimized by this rogue industry. Plus, viewers will gain a firsthand understanding of how FracTracker turns data into real-world impact.

Proceeds will benefit the ongoing work of FracTracker to decarbonize our economy and promote environmental justice.

 

Whether you are able to contribute financially at this time or not, we hope you’ll join us on this virtual journey. You’ll see regular video updates along the way as we share our progress, and watch as a story map is updated throughout the day.

Join our team of explorers in spirit and pledge your support! We’re excited to share this journey with you.

 

 

Trends in Proposed State Legislation to Weaken Environmental Regulations

As the oil and gas industry feels pressure from former allies and see lending windows from their most loyal banking partners begin to dry up, they will be forced to cut costs elsewhere, and cut corners everywhere. This will come in the form of more industry-friendly regulations on the federal level under the current administration, as well as less stringent oversight at the state level. These trends are explicit manifestations of their desperation and influence.

The state-level laws the oil and gas industries are advocating for can easily fly under the radar. Most people just don’t have the bandwidth to educate themselves on the quiet development of these bills, nor to advocate against them. Much of the public’s attention is understandably focused on the COVID-19 pandemic, mass unemployment, and racial inequality. And, much of the critical attention around oil and gas legislation has correctly focused on the critical infrastructure legislation and related policy proposals we focused on in Part I of this series.

Below, we outline current attempts to weaken environmental regulations in Ohio, North Dakota, and Michigan. It is important to note that this is not an all-inclusive outline, but rather the bills we are aware of through our network of frontline and nonprofit contacts.

Ohio’s House Bill 545

 A bill that would be hazardous to the health of all Ohioans, HB 545, intended to “Establish conditions for sale of brine as a commodity,” was introduced by first-term State Representative Adam Holmes, and second-termer Craig Riedel of Western Ohio. This bill would charge the Ohio Department of Natural Resources’ (ODNR) Division of Oil and Gas Resources Management with establishing “conditions and requirements for the sale of brine from oil or gas operations as a commodity, and to exempt that commodity from requirements otherwise applicable to brine.” What could possibly go wrong? The dangers of potentially highly radioactive fracking waste have been known for years, and were recently detailed in great reporting by Justin Nobel for Rolling Stone. Countless others have spent years crying out against radioactive fracking waste being produced, transported, and disposed of all across the Appalachian regions of Ohio, Pennsylvania, and West Virginia.

So, quite a bit could – and likely would – go horribly wrong if we allow ODNR to put lipstick on this fracking waste pig, as it were. The worst part about this is that Representative Holmes knows, (or at least should know), better, given that he lives in Nashport, roughly two miles south of a very active Class II Salt Water Disposal Well, and just a couple more miles from nearly a dozen more injection wells (Figure 1).

 

Figure 1. Existing and Pending Ohio Class II Salt Water Disposal Injection Wells and Proposed Fracking Waste Docks.Existing and Pending Ohio Class II Salt Water Disposal Injection Wells and Proposed Fracking Waste Docks

 

In Ohio, it isn’t just about legislation. As part of the Division of Oil & Gas Resources Management’s ongoing Five Year Rule Review, a change was made to the Ohio Administrative Code (OAC) that went into effect last October. This change permits a saltwater disposal well owner to submit “on or before the fifteenth day of February of each calendar year … a statement of the volume of brine injected in the well for the immediately preceding calendar year.”

This change from quarterly to annual reporting will have profound implications for what little monitoring citizens are permitted. Clearly, the state has little interest or money to conduct monitoring.

An example of how great the lag could be, and how annual data will essentially be useless for any real-time concerns and/or incidents, the current year’s brine volume data will not be available until February 2021, and even then, the operator will have chances to revise the data. FracTracker has been compiling this data quarterly for years, and we will continue to make data that does exist publicly available.

One has to ask who prompted the demand for this change, and who exactly is on The Oil & Gas Division’s review committee. From the vantage point of most Ohioans concerned about this issue, this reporting change is going in the opposite direction of where a state with primacy over its Class II Wells should be going. When the US EPA has primacy over a state’s wells, as it does in Pennsylvania and Virginia, disposal volumes and pressures are reported annually, but the data are at least broken out monthly. (Note: More on Class II Well primacy and the language that allows states to maintain primacy will come in a future piece.)

As Buckeye Environmental Network Executive Director Teresa Mills and matriarch of the Ohio environmental watchdog community told me, “We have less and less and less information. While Pennsylvania’s website has its problems, it is 150% better than what citizens have access to in Ohio.”

Michigan’s Senate Bill 0431

Michigan’s Senate Bill 0431, introduced by Senate Democrat Adam Hollier in August 2019, was quickly reassigned to the Transportation and Infrastructure Committee in Lansing, after being originally introduced in the Natural Resources Committee. This is just the next step in taking away local control from communities. The language of the bill on Line ten states unapologetically that:

“A local unit of government shall not, by ordinance or otherwise, prevent, prohibit, or deny a permit, approval, or other authorization for the extraction, by mining, of natural resources from any property, by a person with property, possessory, or contractual rights to do so … if … The natural resources are valuable …[and] Very serious consequences would not result from the extraction of the natural resources … For purposes of this section, a consequence is very serious if it substantially exceeds the ordinary impacts of customary mining operations, and poses an actual and unnecessary risk to public health, safety, or welfare that cannot be avoided or ameliorated through the imposition of reasonable controls or conditions on the mining operations.”

If you ask residents of towns like Ludington and South Rockwood, Michigan, what it is like to live next to silica sand mines, they’ll tell you they have very little faith in the recently rebranded Michigan Department of Environment, Great Lakes, and Energy (DEGLE), formerly the Department of Environmental Quality (DEQ). This is the same DEQ that was responsible for the Flint water crisis, in which several of its employees plead no contest to misdemeanors related to their actions during the crisis.

When I called Senator Hollier’s office and asked what the motivation for this bill was, his staffer told me that in their eyes, if a mine proposal were to meet or exceed the rigorous requirements of DEGLE, then they felt it was important that no further hurdles be placed in the proposal’s way moving forward.

Another concern of Michiganders that I have spoken to about this bill, and silica sand mining in general, is this stipulation regarding bonding and reclamation:

“The amount of financial assurance shall be the product of $1,500.00 multiplied by the number of acres disturbed by mining operations, but not yet reclaimed, excluding roadways, plant sites, and open water areas that will remain after completion of reclamation … Reclaiming slopes of the banks of the excavation not exceeding one (1) foot vertical to three (3) feet horizontal, measured from the nearest setback line into any area disturbed by mining operations.”

Most folks believe: A) A bond of $1,500 is way too low, considering all the long-term damage from surface mining; B) The carving out for roadways, plant sites, and open water areas leaves a tremendous amount of any mine’s remaining footprint devoid of any chance of reclamation, and ensures potential environmental and human health hazards in perpetuity, and; C) The one foot rise over three feet run threshold leaves a vast amount of any mine’s footprint extremely unstable.

The general sentiment among Michigan nonprofit organizations is summed up by a note I received from Michigan Environmental Council (MEC) President & CEO Conan Smith, stating:

“I believe this bill is part of an intrigue that we’ve been monitoring as two very rich political donors fight over a proposed gravel mine [in] Metamora Township … one who owns the proposed mine, one who neighbors it and is opposed.

We are, as you might imagine, opposed to this bill. The exemption of local control and [the] presumption that an extractive operation is so necessary as to preempt other local concerns and priorities is in itself sufficiently egregious for us. However, this legislation would also leave the extractive industry almost entirely free of citing regulation, as there is no detailed process at the state level either.

The philosophical challenge we face here, as in many cases, is the tension between private property rights and public health, safety, and welfare. With this bill, the sponsors want a presumption that any activity on private land is reasonable, unless it results in a ‘very serious consequence,’ (a term which has basis in current law that this bill also erases). The new definition of seriousness would essentially be something that is not a normal part of the extractive action. Thus, for example, hundreds of trucks rolling down a dirt road might not be a very serious consequence because that’s just part of normal operations …”

In a sign of how quickly support for legislation shifts, and how elected officials will use crises like COVID-19 to push what Naomi Klein calls “Shock Doctrine,”[1] policy designed to facilitate a frictionless transition to “disaster capitalism,” MEC’s Policy Director Sean Hammond told us on May 21st of this year that, “Without the environmental community or local governments changing their positions, I see it very unlikely that this will move anywhere.” But just nine days later, MEC’s President and CEO emailed a group of those concerned about this bill, saying: “Bad news, friends. We learned yesterday that this bill has sudden new life and may be getting a hearing soon … We could certainly use help to dissuade lawmakers from taking this up.”

But much of the above has come from those at the policy level, living a healthy distance from Michigan’s mines. For the perspective of someone who actually lives next to a mine, I turned to a close friend and hero of mine, Doug Wood, and his wife Dawn, residents of South Rockwood in Monroe County, just a couple miles southwest of Detroit (Figures 3 and 4). Doug and Dawn sent me the following text regarding SB 0431:

“Ever since frac sand mining came to my community, the mine has expanded and accelerated, crushing silica 12 hours a day, right next to homes. It has been a constant battle to get the local government and the quarry to install air monitoring. Now the AGGREGATE industry is pushing to pass this law, Senate Bill 0431, which takes away all the local community’s controls, including [the control of] fugitive dust. I feel that if this law passes, it will be the end of a healthy, livable community.”

 

Figure 2. Current and Potential Silica Mining Activity, South Rockwood, Michigan, with Dawn and Doug Wood’s property in the southwest corner of the Light Green US Silica and Sylvanian Minerals Potential Polygon.

 

Figure 3. The Sylvanian Minerals/US Silica frac sand mine in South Rockwood, Michigan, in August 2017 (top) and June 2020 (bottom), with the Wood’s house to the left/west.

North Dakota’s Senate Bill 2344

North Dakota’s Senate Bill 2344 was first introduced to the Energy and Natural Resources Committee on January 21st of this year by Senators Jessica Unruh (R), Dwight Cook (R), and Donald Schaible (R). The North American oil and gas industry knows it has a massive waste issue that it can’t seem to get its collective head around, and in North Dakota, it has countered this structural uncertainty by claiming that landowners do not own the “subsurface pore space” beneath their property, and that this pore space entitles an operator to inject waste into such voids, without compensating landowners.

As Dakota Resource Council Executive Director Scott Skokos told me, “What I’ve heard from attorneys is that this is a taking. Prior to the law change, the porous ground beneath you was part of your property rights, but now it is the government’s … The reason is that it is a taking without compensation! At the legislative hearings, I’ve never seen so many ranchers and mineral owners at the legislature. They thought that because they are a privileged class they would be listened to, and they weren’t. When they got railroaded, they said, ‘What? The government doesn’t work for me?’” Many that are following this bill and associated legal efforts to challenge it think it has a good chance to make it all the way to the US Supreme Court, because it renders the state’s Oil and Gas Production Damage Compensation Act toothless.

Skokos went on to tell me that in “a prior world, where landowners actually had agency over their property in North Dakota, the state’s Century Code clearly stated in Section 38-11.1-04 that landowners were entitled to damages equivalent to ‘lost land value’ and/or ‘lost use of and access to the surface owner’s land.’”

In Mosser v. Denbury Resources, Inc.[2] in 2017, “Use of Pore Space,” and by association, SB 2344, began to percolate as a topic actually up for debate. The Mosser family did not contest the right of Denbury to dispose of fracking waste within their unitized area. This is only because they were hoping to get fair market value for waste disposal, if they would eventually have to incur the costs of damage to their property.

They alleged “claims for nuisance, for trespass and for damages under the Oil and Gas Production Damage Compensation Act.” Judge Charles Miller ruled in favor of the Mossers and stated clearly that surface owners did in fact own pore space; surface owners are entitled to the above damages resulting from pore space use; the surface owner does not have to demonstrate they are using the pore space; and most importantly, compensation per barrel that others are paying for fracking waste disposal may be used by landowners to determine damages.

This ruling was not to the industry’s liking, and they were determined to have the last word, so they worked with the aforementioned Republican Senators to write SB 2344, which contains tons of language regarding the use of pore space for natural gas and CO2 storage, as well as for Enhanced Oil Recovery (EOR) purposes. Senator Jessica Unruh, when not working on behalf of the good people of North Dakota’s District 33, is the Environmental Manager at Coyote Creek Mining Company. Also, it is important to note that Donald Schaible is the sole sponsor of HB 1426, mentioned earlier, that increased penalties for riot offenses.

The most jaw-dropping component of SB 2344 is that it would add a new definition to the state’s Century Code for the term “land,” to be defined as the solid material of earth – regardless of ingredients – but excluding pore space! Yes, those little voids in the rock beneath North Dakotans homes, or maybe up to and including cracks in the soil during dry summers, would not be classified as land, and ipso facto would not entitle landowners to damages if such voids were to be filled in with, say, radioactive fracking waste!

One can only hope that the “get off my land,” fiercely independent, and at times, Libertarian facade North Dakotans like to display will roar when this bill gets traction. I mean after all, isn’t the motto of Tea Party enthusiasts and Second Amendment zealots “Don’t Tread on Me?”

This is Part II of a two-part series on concerning legislation related to the oil, gas, and petrochemical industries. Part I focuses on repressive “critical infrastructure” bills intending to criminalize environmental protestors. Such legislation has already been passed in 11 states.

By Ted Auch, PhD, Great Lakes Program Coordinator

[1] Ms. Klein’s website describes the “Shock Doctrine” as the following: “It is a story about violence and shock perpetrated on people, on countries, on economies … [The Shock Doctrine] explodes the myth that the global free market triumphed democratically, and that unfettered capitalism goes hand-in-hand with democracy. Instead … it has consistently relied on violence and shock, and reveals the puppet strings behind the critical events of the last four decades.”

[2] For a helpful summary of what Mosser v. Denbury Resources, Inc. means to North Dakota landowners and the legal world more broadly, the reader can refer to pages eight to 11 of the University of North Dakota School of Law’s April 2019  “Energy Law Symposium”.

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Foreign Trade Zone Sign Feature

Industry Targets Peaceful Protest via “Critical Infrastructure” Legislation

By Ted Auch, PhD, Great Lakes Program Coordinator and Shannon Smith, Manager of Communications & Development

The oil and gas industry continues to use rhetoric focusing on national security and energy independence in order to advocate for legislation to criminalize climate activists. Backlash against protestors and environmental stewards has only increased since the onset of COVID-19, suggesting that industry proponents are exploiting this public health crisis to further their own dangerous and controversial policies.[1]

Industry actors contributing to the wave of anti-protest bills include American Petroleum Institute (API), IHS Markit, The American Fuel & Petrochemical Manufacturers (AFPM), and most effectively, the American Legislative Exchange Council (ALEC), by way of its primary financial backer, Koch Industries (Fang, 2014, Shelor, 2017).

ALEC is the source of the model legislation “Critical Infrastructure Protection Act” of 2017, intended to make it a felony to “impede,” “inhibit,” “impair,” or “interrupt” critical infrastructure operation and/or construction. Close approximations – if not exact replicas – of this legislative template have been passed in 11 hydrocarbon rich and/or pathway states, and 8 more are being debated in 4 additional states.

The “critical infrastructure” designation in ALEC’s “Critical Infrastructure Protection Act” is extremely broad, including over 70 pieces of infrastructure, from wastewater treatment and well pads, to ports and pipelines. However, along with the 259 Foreign Trade Zones (FTZ) (Figures 1 and 4) supervised by US Customs and Border Protection (CBP), security is of such importance because over 50% of this infrastructure is related to oil and gas. According to our analysis, there are more than 8,000 unique pieces of infrastructure that fall under this designation, with over 10% in the Marcellus/Utica states of Ohio, West Virginia, and Pennsylvania. See Figure 1 for the number of FTZ per state.

Regarding FTZ, the US Department of Homeland Security doesn’t attempt to hide their genuine nature, boldly proclaiming them “… the United States’ version of what are known internationally as free-trade zones … to serve adequately ‘the public interest’.” If there remains any confusion as to who these zones are geared toward, the US Department of Commerce’s International Administration (ITA) makes the link between FTZ and the fossil fuel industry explicit in its FTZ FAQ page, stating “The largest industry currently using zone procedures is the petroleum refining industry.” (Figure 2)

 

Figure 1. Number of Foreign-Trade Zones (FTZ) by state as of June 2020.

Figure 2. Foreign-Trade Zone (FTZ) Board of Actions in Zones 87 in Lake Charles, LA, 115-117 in and around Port Arthur, TX, and 122 in Corpus Christi, TX. (click on the images to enlarge)

 

Foreign-Trade Zone (FTZ) Board of Actions in Zone 87 in Lake Charles, Louisiana

Foreign-Trade Zone (FTZ) Board of Actions in Zone 87 in Lake Charles, Louisiana

Foreign-Trade Zone (FTZ) Board of Actions in Zones 115-117 in and around Port Arthur, Texas

Foreign-Trade Zone (FTZ) Board of Actions in Zones 115-117 in and around Port Arthur, Texas

Foreign-Trade Zone (FTZ) Board of Actions in Zone 122 in Corpus Christi, Texas

Foreign-Trade Zone (FTZ) Board of Actions in Zone 122 in Corpus Christi, Texas

 

Much of the oil, gas, and petrochemical industries’ efforts stem from the mass resistance to the Dakota Access Pipeline (DAPL). Native American tribes and environmental groups spent months protesting the environmentally risky $3.78 billion dollar project, which began production in June 2017, after Donald Trump signed an executive order to expedite construction during his first week in office. The Standing Rock Sioux tribe also sued the US government in a campaign effort to protect their tribal lands. The world watched as Energy Transfer Partners (ETP), the company building the pipeline, destroyed Native artifacts and sacred sites, and as police deployed tear gas and sprayed protesters with water in temperatures below freezing.

ETP’s bottom line and reputation were damaged during the fight against DAPL. Besides increasingly militarized law enforcement, the oil and gas industry has retaliated by criminalizing similar types of protests against fossil fuel infrastructure. However, the tireless work of Native Americans and environmental advocates has resulted in a recent victory in March 2020, when a federal judge ordered a halt to the pipeline’s production and an extensive new environmental review of DAPL.

Just days ago, on July 6, 2020, a federal judge ruled that DAPL must shut down until further environmental review can assess potential hazards to the landscape and water quality of the Tribe’s water source. This is certainly a victory for the Standing Rock Sioux Tribe and other environmental defenders, but the decision is subject to appeal.

Since the DAPL conflict began, the industry has been hastily coordinating state-level legislation in anticipation of resistance to other notable national gas transmission pipelines, more locally concerning projects like Class II Oil and Gas Waste Injection Wells, and miles of gas gathering pipelines that transport increasing streams of waste – as well as oil and gas – to coastal processing sites.

 

The following “critical infrastructure” bills have already been enacted:

STATE BILL TITLE DATE PASSED
West Virginia HB 4615 NEW PENALTIES FOR PROTESTS NEAR GAS AND OIL PIPELINES 3/25/20
South Dakota SB 151 NEW PENALTIES FOR PROTESTS NEAR PIPELINES AND OTHER INFRASTRUCTURE 3/18/20
Kentucky HB 44 NEW PENALTIES FOR PROTESTS NEAR PIPELINES AND OTHER INFRASTRUCTURE 3/16/20
Wisconsin AB 426 NEW PENALTIES FOR PROTESTS NEAR GAS AND OIL PIPELINES 11/21/19
Missouri HB 355 NEW PENALTIES FOR PROTESTS NEAR GAS AND OIL PIPELINES 7/11/19
Texas HB 3557 NEW CRIMINAL AND CIVIL PENALTIES FOR PROTESTS AROUND CRITICAL INFRASTRUCTURE 6/14/19
Tennessee SB 264 NEW PENALTIES FOR PROTESTS NEAR GAS AND OIL PIPELINES 5/10/19
Indiana SB 471 NEW PENALTIES FOR PROTESTS NEAR CRITICAL INFRASTRUCTURE 5/6/19
North Dakota HB 2044 HEIGHTENED PENALTIES FOR PROTESTS NEAR CRITICAL INFRASTRUCTURE 4/10/19
Louisiana HB 727 HEIGHTENED PENALTIES FOR PROTESTING NEAR A PIPELINE 5/30/18
Oklahoma HB 1123 NEW PENALTIES FOR PROTESTS NEAR CRITICAL INFRASTRUCTURE 5/3/17

 

There are an additional eight bills proposed and under consideration in these six states:

STATE PENDING TITLE DATE PROPOSED
Louisiana HB 197 NEW PENALTIES FOR PROTESTS NEAR CRITICAL INFRASTRUCTURE 2/24/20
Minnesota HF 3668 NEW PENALTIES FOR PROTESTS NEAR GAS AND OIL PIPELINES 2/24/20
Mississippi HB 1243 NEW PENALTIES FOR PROTESTS NEAR CRITICAL INFRASTRUCTURE 2/19/20
Alabama SB 45 NEW PENALTIES FOR PROTESTS NEAR GAS AND OIL PIPELINES 2/4/20
Minnesota HF 2966 NEW PENALTIES FOR PROTESTS NEAR OIL AND GAS PIPELINES 1/31/20
Minnesota SF 2011 NEW PENALTIES FOR PROTESTS NEAR GAS AND OIL PIPELINES 3/4/19
Ohio SB 33 NEW PENALTIES FOR PROTESTS NEAR CRITICAL INFRASTRUCTURE 2/12/19
Illinois HB 1633 NEW PENALTIES FOR PROTESTS NEAR CRITICAL INFRASTRUCTURE 1/31/19

 

Desperate Backlash Against Peaceful Protest

Activists and organizations like the American Civil Liberties Union (ACLU) are framing their opposition to such legislation as an attempt to stave off the worst Orwellian instincts of our elected officials, whether they are in Columbus or Mar-a-Lago. On the other hand, industry and prosecutors are framing these protests as terroristic acts that threaten national security, which is why sentencing comes with a felony conviction and up to ten years in prison. The view of the FBI’s deputy assistant director and top official in charge of domestic terrorism John Lewis is that, “In recent years, the Animal Liberation Front and the Earth Liberation Front have become the most active, criminal extremist elements in the United States … the FBI’s investigation of animal rights extremists and ecoterrorism matters is our highest domestic terrorism investigative priority.”

It shocked many when last week, two protesters in the petrochemical-laden “Cancer Alley” region of Louisiana were arrested and charged under the state’s felony “terrorist” law. Their crime? Placing boxes of nurdles – plastic pellets that are the building blocks of many single-use plastic products – on the doorsteps of fossil fuel lobbyists’ homes. To make matters more ridiculous, the nurdles were illegally dumped by the petrochemical company Formosa Plastics.[2] This is outrageous indeed, but is the sort of legally-sanctioned oppression that fossil fuel industry lobbyists have been successfully advocating for years.

American Fuel & Petrochemical Manufacturers (AFPM) stated in a letter of support for ALEC’s legislative efforts:

“In recent years, there has been a growing and disturbing trend of individuals and organizations attempting to disrupt the operation of critical infrastructure in the energy, manufacturing, telecommunications, and transportation industries. Energy infrastructure is often targeted by environmental activists to raise awareness of climate change and other perceived environmental challenges. These activities, however, expose individuals, communities, and the environment to unacceptable levels of risk, and can cause millions of dollars in damage … As the private sector continues to expand and maintain the infrastructure necessary to safely and reliably deliver energy and other services to hundreds of millions of Americans, policymakers should continue to consider how they can help discourage acts of sabotage … Finally, it will also hold organizations both criminally and vicariously liable for conspiring with individuals who willfully trespass or damage critical infrastructure sites.”

Those organizations deemed ‘criminally and vicariously liable’ would in some states face fines an order of magnitude greater than the actual individual, which would cripple margin-thin environmental groups around the country, and could amount to $100,000 to $1,000,000. The AFPM’s senior vice president for federal and regulatory affairs Derrick Morgan referred to these vicarious organizations as “inspiring … organizations who have ill intent, want to encourage folks to damage property and endanger lives …”

Oklahoma Oil & Gas Association (OKOGA) wrote in a fear-mongering letter to Oklahoma Governor Mary Fallin that such legislation was necessary to “protect all Oklahomans from risk of losing efficient and affordable access to critical services needed to power our daily lives.”

One of the most disturbing aspects of this legislation is that it could, according to the testimony and additional concerns of ACLU of Ohio’s Chief Lobbyist Gary Daniels, equate “‘impeding’ and ‘inhibiting’ the ‘operations’ of a critical infrastructure site” with acts as innocuous as Letters to the Editor, labor strikes or protests, attending and submitting testimony at hearings, or simply voicing your concern or objections to the validity of industry claims and its proposals with emails, faxes, phone calls, or a peaceful protest outside critical infrastructure that raises the concern of site security. Mr. Daniels noted in his additional written testimony that the latter, “may prove inconvenient to the site’s staff, under SB 250 they would be an F3 [Third Degree Felony], and that is without someone even stepping foot on or near the property, as physical presence is not required to be guilty of criminal mischief, as found in/defined in Sec. 2907.07(A)(7) of the bill.”

RISE St. James

Figure 3. A rally held by the Louisiana-based nonprofit RISE St. James.

This connection, when enshrined into law, will have a chilling effect on freedom of speech and assembly, and will stop protests or thoughtful lines of questioning before they even start. As the Ohio Valley Environmental Coalition (OVEC) put it in their request for residents to ask the governor to veto the now-enacted HB 4615, such a bill is unnecessary, duplicative, deceitful, un-American, unconstitutional, and “will further crowd our jails and prisons.”

To combat such industry-friendly legislation that erodes local government control in Ohio, lawmakers like State Senator Nikki Antonio are introducing resolutions like SR 221, which would, “abolish corporate personhood and money-as-speech doctrine” made law by the Supreme Court of the United States’ rulings in Citizens United v. FEC and Buckley v. Valeo. After all, the overarching impact of ALEC’s efforts and those described below furthers privatized, short-term profit and socialized, long-term costs, and amplifies the incredibly corrosive Citizen’s United decision a little over a decade ago.

 

Further Criminalization of Protest, Protections for Law Enforcement

Simultaneously, there is an effort to criminalize protest activities through “riot boosting acts,” increased civil liability and decreased police liability, trespassing penalties, and new sanctions for protestors who conceal their identities (by wearing a face mask, for example).

 

The following bills have already been enacted:

STATE BILL TITLE DATE PASSED
South Dakota SB 189 EXPANDED CIVIL LIABILITY FOR PROTESTERS AND PROTEST FUNDERS 3/27/19
West Virginia HB 4618 ELIMINATING POLICE LIABILITY FOR DEATHS WHILE DISPERSING RIOTS AND UNLAWFUL ASSEMBLIES 3/10/18
North Dakota HB 1426 HEIGHTENED PENALTIES FOR RIOT OFFENCES 2/23/17
North Dakota HB 1293 EXPANDED SCOPE OF CRIMINAL TRESPASS 2/23/17
North Dakota HB 1304 NEW PENALTIES FOR PROTESTERS WHO CONCEAL THEIR IDENTITY 2/23/17

 

In addition, the following bills have been proposed and are under consideration:

STATE PENDING TITLE DATE PROPOSED
Rhode Island H 7543 NEW PENALTIES FOR PROTESTERS WHO CONCEAL THEIR IDENTITY 2/12/20
Oregon HB 4126 HARSH PENALTIES FOR PROTESTERS WHO CONCEAL THEIR IDENTITY 1/28/20
Tennessee SB 1750 NEW PENALTIES FOR PROTESTERS WHO CONCEAL THEIR IDENTITY 1/21/20
Ohio HB 362 NEW PENALTIES FOR PROTESTERS WHO CONCEAL THEIR IDENTITY 10/8/19
Pennsylvania SB 887 NEW PENALTIES FOR PROTESTS NEAR “CRITICAL INFRASTRUCTURE” 10/7/19
Massachusetts HB 1588 PROHIBITION ON MASKED DEMONSTRATIONS 1/17/19

 

All the while, the Bundy clan of Utah pillage – and at times – hold our public lands hostage, and white male Michiganders enter the state capital in Lansing armed for Armageddon, because they feel that COVID-19 is a hoax. We imagine that it isn’t these types of folks that West Virginia State Representatives John Shott and Roger Hanshaw had in mind when they wrote and eventually successfully passed HB 4618, which eliminated police liability for deaths while dispersing riots and unlawful assemblies.

Contrarily, South Dakota’s SB 189, or “Riot Boosting Act,” was blocked by the likes of US District Judge Lawrence L. Piersol, who wrote:

“Imagine that if these riot boosting statutes were applied to the protests that took place in Birmingham, Alabama, what might be the result? … Dr. King and the Southern Christian Leadership Conference could have been liable under an identical riot boosting law.”

 

 

Dangerous Work

FracTracker collaborated with Crude Accountability on a report documenting increasing reprisals against environmental activists in the US and Eurasia. Read the Report.

 

A Wave of Anti-Protest Laws in the COVID-19 Era

Despite Judge Piersol’s ruling, South Dakota (SB 151) joined Kentucky (HB 44) and West Virginia (HB 4615) in passing some form of ALEC’s bill since the COVID-19 epidemic took hold of the US. This is classic disaster capitalism. As former Barack Obama Chief of Staff Rahm Emanuel once said, “You never want a serious crisis to go to waste, and what I mean by that is it’s an opportunity to do things you think you could not do before.”

Foreign-Trade Zone Sign

Figure 4. Photo of US Treasury Department signage outlining the warning associated with BP’s Whiting, IN, oil refinery designated a Foreign Trade Zone (FTZ). Photo by Ted Auch July 15th, 2015

In all fairness to Mr. Emanuel, he was referring to the Obama administration’s support for the post-2008 bipartisan Wall Street bailout. However, it is critical that we acknowledge the push for critical infrastructure legislation has been most assuredly bipartisan, with Democratic Governors in Kentucky, Louisiana, and Wisconsin signing into law their versions on March 16th of this year, in May of 2018, and in November of 2019, respectively.

According to the International Center for Not-for-Profit Law, 11 states have passed some version of ALEC’s bill, with the first uncoincidentally being a series of three bills signed in February of 2017 by North Dakota Governor Burgum, targeting “Heightened Penalties for Riot Offences” (HB 1426), “Expanded Scope of Criminal Trespass” (HB 1293), and “New Penalties for Protestors Who Conceal Their Identity” (HB 1304), with at least one member of ALEC’s stable of elected officials, Rep. Kim Koppelman, proudly displaying his affiliation in his biography on the North Dakota Legislative Branch’s website. Mr. Koppelman, along with Rep. Todd Porter out of Mandan, also cosponsored two of these bills.

Related Legislation in Need of Immediate Attention

In Columbus, Ohio, there are several pieces of legislation being pushed in concert with ALEC-led efforts. These include the recently submitted HB 362, that would “create the crime of masked intimidation.” Phil Plummer and George F. Lang sponsor the bill, with the latter being the same official who introduced HB 625, a decidedly anti-local control bill that would preempt communities from banning plastic bags. Most of the general public and some of the country’s largest supermarket chains have identified plastic bag bans as a logical next step as they wrestle with their role in the now universally understood crimes plastics have foisted on our oceans and shores. As Cleveland Scene’s Sam Allard wrote, “bill mills” and their willing collaborators in states like Ohio cause such geographies to march “boldly, with sigils flying in the opposite direction” of progress, and a more renewable and diversified energy future.

With respect to Plummer and Lang’s HB 362, two things must be pointed out:

1) It is eerily similar to North Dakota’s HB 1304 that created new penalties for protestors who conceal their identity, and

2) The North Dakota bill was conveniently signed into law by Governor Burgum on February 23rd, 2017, who had set the day prior as the “deadline for the remaining [DAPL] protesters to leave an encampment on federal land near the area of the pipeline company’s construction site.”

So, when elected officials as far away as Columbus copy and paste legislation passed in the aftermath of the DAPL resistance efforts, it is clear the message they are conveying, and the audience(s) they are trying to intimidate.

Plummer and Lang’s HB 362 would add a section to the state’s “Offenses Against the Public Peace,” Chapter 2917, that would in part read:

No person shall wear a mask or disguise in order to purposely do any of the following:

(A) Obstruct the execution of the law;

(B) Intimidate, hinder, or interrupt a person in the performance of the person’s legal duty; or

(C) Prevent a person from exercising the rights granted to them by the Constitution or the laws of this state.

 

Whoever violates this proposed section is guilty of masked intimidation. Masked intimidation is a first degree misdemeanor. It was critical for the DAPL protestors to protect their faces during tear gas and pepper spray barrages, from county sheriffs and private security contractors alike.

At the present moment, masks are one of the few things standing between COVID-19 and even more death. Given these realities, it is stunning that our elected officials have the time and/or interest in pushing bills such as HB 362 under the thin veil of law and order.

But judging by what one West Virginia resident and former oil and gas industry draftsman,[3] wrote to us recently, elected officials do not really have much to lose, given how little most people think of them:

“Honestly, it doesn’t seem to matter what we do. The only success most of us have had is in possibly slowing the process down and adding to the cost that the companies incur. But then again, the increase in costs probably just gets passed down to the consumers. One of the biggest drawbacks in my County is that most, if not all, of the elected officials are pro drilling. Many of them have profited from it.”

The oil, gas, and petrochemical industries are revealing their weakness by scrambling to pass repressive legislation to counteract activists. But social movements around the world are determined to address interrelated social and environmental issues before climate chaos renders our planet unlivable, particularly for those at the bottom of the socioeconomic ladder. We hope that by shining a light on these bills, more people will become outraged enough to join the fight against antidemocratic legislation.

This is Part I of a two-part series on concerning legislation related to the oil, gas, and petrochemical industries. Part II focuses on bills that would weaken environmental regulations in Ohio, Michigan, and South Dakota.

By Ted Auch, PhD, Great Lakes Program Coordinator and Shannon Smith, Manager of Communications & Development

[1] See Naomi Klein’s concept of the Shock Doctrine for similar trends.

[2] The community-based environmental organization RISE St. James has been working tirelessly to prevent Formosa Plastics from building one of the largest petrochemical complexes in the US in their Parish. Sharon Lavigne is a leading member of RISE St. James, and is an honored recipient of the 2019 Community Sentinel Award for Environmental Stewardship. Read more on Sharon’s work with RISE St. James here.

[3] This individual lives in Central West Virginia, and formerly monitored Oil & Gas company assets in primarily WV, PA, NY, VA, MD & OH, as well as the Gulf Coast. Towards the end of this individual’s career, they provided mapping support for the smart pigging program, call before you dig, and the pipeline integrity program.

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