EMLF: EMLF Update

In an effort to curb the effects of hydraulic fracturing, or fracking, environmentalists and private citizens in Arkansas have filed a series of potential class action law suits. Three of the complaints filed by private citizens seek compensatory and punitive damages of approximately $6 million. The complaints allege that companies such as BHP Billiton Ltd. and Chesapeake Energy Corp. are contaminating nearby groundwater, soil, water wells and air by their fracking methods.

Fracking is the process by which chemicals, water and sand are forced into rock formations under pressure to stimulate gas production. The allegations contend that flammable and noxious gasses such as methane and hydrogen sulfide have been seeping into their private water supplies. If the class action law suits are allowed to proceed, they would allow all Arkansas citizens who live within a three-mile radius of any bore holes, wellheads or other gas extraction operations to join the lawsuit.

While industry advocates claim that the fracking process is safe, the lawsuits allege that studies have documented the migration of the dangerous fracking chemicals into areas other than the specified fracking sites. A different lawsuit alleges that those living near the compressor stations are exposed to hazardous levels of noise and large amounts of methane and hydrogen sulfide, which are so dangerous that the compressor station operators are required to place wind socks on their property to alert employees to the direction the noxious gasses are traveling so as to avoid contact with the gasses.

An additional lawsuit that was filed alleges that two separate BHP injection wells caused hundred of earthquakes while a fifth suit seeks to discontinue oil and gas drilling in Arkansas’ Ozark National Forest and at Greers Ferry Lake until the environmental impacts are determined.

Ohio Senate Approves Bill Allowing Oil and Gas Drilling at State Parks

In preparation for a predicted shale gas drilling boom, the Ohio Senate recently approved a bill that will allow drilling on state park land. Opponents of the bill believe there are too many questions about hydraulic fracking methods and chemicals likely to be used. Proponents of the bill argue that the drilling will increase revenue for the state and allow for economic development and repairs at the state parks.

The bill creates a new Oil and Gas Leasing Commission that would oversee oil and natural gas exploration and drilling at the state parks, as no oil and gas drilling or exploration has ever occurred on state park property.

Texas Senate Approves Bill Requiring Fracking Chemical Disclosures

The Texas Senate passed a bill in May that requires drilling companies to publicly disclose the chemical contents of fluids used in hydraulic fracturing. The bill is set to return to Texas House of Representatives for approval of the Senate’s amendments. If approved, Texas would become one of the first states in the country to require disclosure of fracking chemicals. The proposed legislation would require reports to be filed with the Railroad Commission of Texas, which would then make the information for each well publicly available online.

Eight States Ask Court To Invalidate EPA’s GHG Regulations

Eight states petitioned the Court of Appeals for the District of Columbia Circuit to strike the Environmental Protection Agency’s (EPA) greenhouse gas (GHG) regulations, stating that the new regulations violate the Clean Air Act. Thirteen additional states are embroiled in the lawsuit on behalf of the EPA.

The petitioning states’ concern is that compliance with the new rules, all designed to reduce carbon emissions from vehicles and stationary sources, is cost prohibitive. In addition, they claim that EPA violated the Clean Air Act by not determining what concentration of greenhouse gases would endanger human health, and whether reducing greenhouse gas emissions will impact global warming.

Earlier this year, a group of trade associations and states sought to stay implementation of the rules, saying that EPA had not proven that harm was certain to occur. That motion was denied.

NY Fracking Ban Extended

The New York State Assembly recently extended the moratorium on new hydraulic fracturing from July of 2011 until June 2012, to provide more time to better understand the environmental impacts of fracking. The Assembly indicated that it needs more time to review a New York Department of Environmental Conservation study on the environmental impacts of fracking, expected to be released in the near future. The New York State Assembly’s biggest concern is that fracking could contaminate drinking water supplies, generate waste, harm community infrastructure and increase air pollution. However, the Independent Oil and Gas Association of New York argued that the extended moratorium will send thousands of drilling jobs and revenue of approximately $1 million to neighboring states.

NY Sues to Stop Fracking in Delaware River Basin

New York’s Attorney General Eric Schneiderman has filed a lawsuit against the United States in an attempt to force the US to require an environmental impact study of proposed natural gas drilling in the Delaware River Basin. New York decided to bring legal action after it became clear that the Army Corps of Engineers would not conduct such a study.

In December 2010, the Delaware River Basin Commission, which has the legal authority to approve or disapprove activities that may substantially affect water resources within the basin, proposed regulations that would allow fracking. Those proposed regulations would allow approximately 15,000 to 18,000 new gas wells to be drilled.

Schneiderman’s concern is that fracking, the method that will most likely be used to extract natural gas from the basin, could contaminate drinking water supplies, generate waste, harm community infrastructure and increase air pollution. Additionally, Schneiderman argues that not completing an environmental study would violate the National Environmental Policy Act, which stipulates that federal agencies must conduct a full review of actions that may cause significant environmental impact.

All 50 States Sued by Environmental Groups over GHG Emissions

The United States and all 50 states were sued recently on the principle that the public trust doctrine required them to reduce carbon dioxide emissions and implement reforestation programs to battle climate change. The environmental groups who jointly filed the actions stated that the federal government and the Obama administration are not doing enough to curb greenhouse gas emissions, so they are hoping that judges will force the government to do more.

The named plaintiffs in the various lawsuits are all children, young adults or parents, asking for a six percent reduction in carbon dioxide emissions every year globally, as well as widespread global reforestation. The plaintiffs contend that the public trust doctrine has been applied to protect water and land and should be extended to protect the atmosphere, because the welfare and survival of future generations is at stake.

EPA Rules Force AEP To Close Five Coal Plants

American Electric Power Co. Inc. (AEP) will be closing five coal-fired power plants in Ohio, Virginia and West Virginia to maintain compliance with proposed Environmental Protection Agency (EPA) regulations. AEP claims that the compliance timeline in EPA’s proposals is unrealistic and left the company with no alternative other than the premature closure of almost 25% of AEP’s current coal fired generating capacity.

According to AEP, closing the five plants will cost 600 jobs and deprive the local communities of significant tax revenue. Shutting down the five plants will also reduce AEP’s electricity output by 6,000 megawatts, potentially increasing the price of consumer electricity by 35 percent. AEP plans to also invest $6 billion to $8 billion to refit other coal plants and build new natural gas plants.

EPA asserts that the benefits of the proposal outweigh the estimated annual costs of $2.8 billion. According to EPA, the proposed rule would yield up to $290 billion in annual health and welfare benefits in 2014, prevent 36,000 premature deaths, prevent 26,000 hospital and energy room visits, and prevent 240,000 cases of aggravated asthma.

Supreme Court Rejects Public Nuisance Lawsuit Against Electric Utility Greenhouse Gas Emission

On June 20, 2011, the United States Supreme Court threw out a lawsuit brought by several states, which targeted the five largest emitters of carbon dioxide in the United States: American Electric Power Co., Duke Energy Corp., Southern Co. Inc., Xcel Energy Inc., and the Tennessee Valley Authority. The suit sought to have the courts impose restrictions on greenhouse gas emissions from the electric utilities, arguing that they constitute a public nuisance.

In an 8–0 ruling (Justice Sotomayor did not participate), the Court held that regulation of greenhouse gases should be left to the Environmental Protection Agency (“EPA”), rather than the federal courts, noting that the Clean Air Act and the action the Act authorizes the EPA to take displace any federal common-law right to seek abatement of carbon dioxide emissions from fossil-fuel fired power plants. Justice Ruth Bader Ginsburg, who wrote the opinion, said the EPA was "best suited to serve as primary regulator of greenhouse gas emissions. The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions.''

The opinion, American Electric Power, Inc., et. al v. Connecticut, et. al, is available online at: http://www.supremecourt.gov/opinions/10pdf/10-174.pdf

Treating Brine in Wastewater Treatment Plants Not an Option, According to Ohio EPA

The Ohio Environmental Protection Agency recently announced that cities can't treat wastewater from natural gas wells in their sewage plants, cutting off a substantial source of potential revenue for local governments.

The agency says it is concerned that the wastewater poses a pollution risk and could negatively impact drinking water.

The decision announced yesterday to the public and in letters to both state and local officials directly impacts the communities of East Liverpool and Warren, both of which had hoped to reap significant financial rewards from the treatment of industry wastewater.

In January 2011, the Ohio EPA authorized the city of Warren, in connection with a joint agreement with Patriot Water Treatment, a Lisbon, Ohio based company, to accept and treat as much as 100,000 gallons of wastewater generated by natural gas production. According to the company’s president, the company had already hired 45 people and invested $3,000,000.00 in order to begin the process of transporting wastewater to the Warren facility.

Ohio EPA, in an abrupt about face now states that it will not renew Warren’s authorization to accept the wastewater when its permit comes up for renewal next year.

"It's a complete surprise," said Andrew Bloksom, president of Patriot. "If this was their intent, we wouldn't have spent all the money that we've invested or have all of these families who are relying on our business."

Tom Angelo, director of Warren's waste water treatment plant, had hoped to charge as much as $150,000 a year to take the brine. He stated that after 4 1/2 months of operation there have been no demonstrated impacts to the environment or the treatment plant resulting from the acceptance of the wastewater.

The Ohio EPA's letter states that the options for disposing of brine resulting from oil and gas production are expressly limited by statute to injection wells, road surface application, enhanced recovery operations, and “other methods approved by the ODNR [Ohio Department of Natural Resources], Chief of Mineral Resource Management for testing or implementing a new technology or method of disposal. According to Ohio EPA, “disposing directly into a surface water body, either directly or via a Publicly Owned Treatment Works (POTW)” is not an option.