A Barnett Shale Manifesto…From Austin

Downwinders' INHALER FIST 1 copySometimes it takes a perspective above the grind of trench warfare to give you a better sense of what the entire battlefield looks like. That's what UT Law Professor Rachel Rawlins has done for Barnett Shale activists with the recent publication of her article "Planning for Fracking on the Barnett Shale: Urban Air Pollution, Improving Health Based Regulation, and the Role of Local Governments" in the new Virginia Environmental Law Review. 

Don't let the academic title fool you. This is a call for a radically new approach to how communities in Texas regulate the risks of fracking, and every other type of heavy industry. We put the link up for the piece on our Facebook page on Saturday based on a quick reading of its commentary on the Flower Mound cancer cluster, but it's more, so much more than that. Among other things, it's a comprehensive rebuttal of every claim of safety and well-being ever issued by the industry or state authorities about the health of residents living in the Barnett Shale, of which the Flower Mound case is only one example. Rawlins has produced a one-stop catalog of each major air pollution health controversy in the Barnett since concerns began to grow in the last decade, with an almost 30-page review of why no industry or government-sponsored study of fracking pollution and its health effects is a satisfactory response to those concerns. Want to convince your local officials that fracking isn't as safe as it's touted? Here's the staggering blow-by-blow commentary to do it.

But all of that documentation is presented in service to making the point that current state and federal regulation of fracking is failing to protect public health, both in design and in practice.  Professor Rawlins' solution to this problem is not to give the state and federal government more power to regulate the gas industry. No, it's to turn the current regulatory framework upside down and give more power to local governments to do the things that the state and federal government should be doing.

In making this recommendation, she echoes the strategy that's been driving Downwinders since it was founded – that the best way to regulate pollution problems is at the local level where the most harm is being done, and it should be directed by the people being harmed. This is what drove our Green Cement campaign that closed the last obsolete wet cement kiln in Texas. This is what fueled our campaign to close down the trailer park-come-lead smelter in Frisco. And it's what was behind the recent Dallas fights over drilling. In each case, it wasn't Austin or Washington DC that was the instrument of change – it was local governments, pressed by their constituents, flexing their regulatory powers. The same thing is driving activists in Denton who are organizing the ban fracking petition drive and vote.

This strategy avoids battles where industry is strongest – in the halls of the state capitol and in DC, where citizens are outspent millions to one. Instead, it takes the fight to neighborhoods where the harm is being done or proposed, where people have the most to lose, where the heat that can be applied to elected officials is more intense. Citizens will still get outspent, but the money doesn't seem to buy corporations as much influence among those actually breathing the fumes of the drilling site, or smokestack.

Particularly now, with corporate-friendly faux-Tea Party types in control of state government and the House of Representatives in DC, there is little room for grassroots campaigns to make a difference by passing new legislation.  Even if by some miracle a few bills did pass, their enforcement would be up to the same state or federal agencies that are currently failing citizens. Local is more direct, and more accountable. Professor Rawlins agrees, and spends most of the rest of her 81-page journal article citing the ways in which local control of fracking in the Barnett Shale is hampered by the out-dated top-down approach to regulation, and what should be done to fix that.

Included in her recommendations are two long-term Downwinders projects: Allowing local governments to close the "off-sets" loophole for the gas industry that exempts them from having to compensate for their smog-forming pollution in already smoggy areas like DFW, and creating California-like local air pollution control districts that could set their own health based exposure standards and pollution control measures without having to go through Austin or DC. 

If there's a single major fault in Rawlins's analysis, it's that she believes more local control of pollution risks is itself dependent on action by an unwilling state government. But Downwinders and others have shown that isn't true. Our most significant and far-reaching victories – from the closing of the Midlothian wet kilns to the new Dallas drilling ordinance – have all taken place while Rick Perry was Governor and the state legislature was in the hands of our opponents. We did these things despite Austin, not because we had its permission. Local zoning laws, local permitting rules, local nuisance acts, and other local powers are under-utilized by both residents and their elected officials when it comes to pollution hazards.

The same is true now of Downwinders' off-sets campaign aimed at the gas industry. We think we've found a way to avoid the "preemption" argument that would keep local governments from acting on smog pollution from gas sources by aiming the off-sets at Greenhouse gases – an area of regulation Texas is loathe to enter. By targeting GHG reduction, we also reduce a lot of toxic and smog-forming air pollution. It's a back door way, but it accomplishes the same goal. It's going to be up to Texas activists to sew similar small threads of change through an otherwise hostile political environment.

Even given that flaw, Professor Rawlins' introduction to her article is the most concise summary of the air pollution problems caused by gas mining and production in the Barnett, as well as the most credible call to action for a new way of doing business there. Here it is reprinted in full for your consideration:

In the last decade hydraulic fracturing for natural gas has exploded on the Barnett Shale in Texas. The region is now home to the most intensive hydraulic fracking and gas production activities ever undertaken in densely urbanized areas. Faced with minimal state and federal regulation, Texas cities are on the front line in the effort to figure out how best to balance industry, land use, and environmental concerns. Local governments in Texas, however, do not currently have the regulatory authority, capacity, or the information required to closet he regulatory gap. Using the community experience on the Barnett Shale as a case study, this article focuses on the legal and regulatory framework governing air emissions and proposes changes to the current regulatory structure.

Under both the state and federal programs, the regulation of hazardous air emissions from gas operations is based largely on questions of cost and available technology. There is no comprehensive cumulative risk assessment to consider the potential impact to public health in urban areas. Drilling operations are being conducted in residential areas. Residents living in close proximity to gas operations on the Barnett Shale have voiced serious concerns for their health, which have yet to be comprehensively evaluated. Given the complexityof the science, and the dearth of clear, transparent, and enforceable standards, inadequate studies and limited statistical analysis have been allowed to provide potentially false assurances. The politically expedient bottom line dominates with little attention paid to the quality of the science or the adequacy of the standards.

Determining and applying comprehensive health-based standards for hazardous air pollutants has been largely abandoned at the federal level given uncertainties in the science, difficulties of determining and
measuring “safe” levels of toxic pollutants, and the potential for economic disruption. Neither the state nor the federal government has set enforceable ambient standards for hazardous air pollutants.

Identifying cumulative air pollution problems that may occur in urban areas, the State of California has called upon local governments to identify “hot spots” and to consider air quality issues in their planning and zoning actions. In Texas, however, preemption discussions dominate the analysis. Any local government regulation that might provide protection from toxic air emissions otherwise regulated by the State must be justified by some other public purpose.

Texas should consider authorizing and encouraging local level air quality planning for industrial activities, similar to what California has done. Care should be taken to separate these facilities from sensitive receptors and “hot spots” that may already be burdened with excessive hazardous air emissions. Given the difficulty of the task, there is also an important role for the state and federal governments in working to establish ambient standards for hazardous air pollutants, as well as standards for health based assessment and public communication. The uncertainty inherent in any of these standards should be made clear and accessible to local governments so that it may be considered in making appropriate and protective land use decisions. Texas should consider allowing local governments to have the power to establish ambient air quality standards, emissions limitations, monitoring, reporting, and offsets for hazardous air pollutants, following the model applied to conventional air pollutants pursuant to the federal program.

Professor Rawlins' article provides Barnett Shale activists with a new map to guide them toward more effective action. We'd all do well to study it and pick local battles that promise to contribute toward its realization.

The EPA Loss in Court You Didn’t Hear About, But Could Affect You More in DFW

Let's face it, the EPA legal team has taken a bunch of hits lately. Losses in court over the Texas Flex permitting plan and national cross state pollution rules, among others, have gotten lots of headlines, but for various reasons may not be as awful as they first sound to environmentalists.

But there was a recent ruling that did hit home for metropolitan areas like DFW that are a) already in "non-attainment" of the federal ozone, or smog, standard, and, b) host lots of urban gas and oil drilling. You probably didn't hear about it, but it may have more of an impact on your air here because it once again left a large loophole in current law that allows the oil and gas sector to escape emissions "off-setting."

According to the Clean Air Act, every large industry that comes to set up shop in a non-attainment area like DFW must decrease as much pollution as it estimates it will increase. This is required so that new pollution doesn't just take the place of pollution that's been reduced from industries already operating in the area. Otherwise, there would be a large imbalance between new industries and established ones that would put air quality progress in peril.

And that's exactly what's happening in DFW.

For a decade now, gas mining in the Barnett Shale has added tons and tons of new air pollution to the North Texas airshed that has not had to be off-set with reductions. While emissions from this industrial sector grew, pollution from local cars, power plants and cement kilns actually decreased. Based on past experience DFW should be making headway toward cleaner air. But we're not. For the last two years, DFW air quality progress has stagnated and even begun rolling backwards. This year we already have five monitors out of compliance with a 1997 ozone standard, compared to just one in 2010.

So why aren't gas emissions subject to Clean Air Act  "off-sets" just like a power plant or cement kiln? Because nobody writing the Clean Air Act in 1970, or its amendments in 1991, anticipated urban drilling on the scale we're experiencing it in DFW these days. Nobody foresaw the establishment of a huge gas patch in a large metropolitan area with connected, but widely diffused sources of emissions spread out over hundreds of square miles.  They were thinking about "stationary sources" of pollution like coal-fired power plants, refineries and the like. The amounts needed to trigger off-setting are all oriented toward these massive facilities, not lots of smaller sources that eventually equal or surpass their output. As a result, there's a huge loophole that keeps the oil and gas industry from being regulated like any other industry in a non-attainment area.

EPA has recognized this loophole and tried to close it by ruling that facilities connected by process in the gas field may be treated as one large source of pollution – the term is "aggregate." And this is the definition that a court recently shot down in a Michigan case:

"The Cincinnati, Ohio-based 6th U.S. Circuit Court of Appeals held yesterday that EPA had no basis to find that the natural gas sweetening plant and sour gas production wells owned by Summit Petroleum Corp. in Rosebush, Mich., are "adjacent" under the statute and therefore a single source just because they shared some similar functions.

It is an important case for the oil and gas industry because it is the first appeals court ruling to address a recent EPA move seeking to more aggressively "aggregate" various nearby sources of air pollution at oil and gas facilities for permitting purposes.

The court ordered EPA on a 2-1 vote to consider again whether the facilities, spread over a 43-square-mile area, are "adjacent" under the "plain-meaning of the term," which focuses only on physical proximity."

Just in case there was any doubt about why the gas industry was challenging the EPA policy of aggregating, the next sentence of the article makes it clear:

"Industry groups object because it can bring the individual sources under the umbrella of more stringent Clean Air Act permitting requirements."

Now, of course adjacent in common law means next door. But what does it, or should it mean, in environmental law? The collective air pollution being generated by that 43 square mile complex could very well be "adjacent" to your lungs a short distance downwind. But the court didn't see it that way.

That means that going into the next clean air plan for DFW – one that will, at least theoretically be aimed at the new 75 parts per billion ozone standard –  EPA will not be able to "off-set" the large amounts of air pollution generated by gas mining and processing in the North Texas non-attainment area.

And that's why we have to do it ourselves, one city and one county at a time. Starting in Dallas. Starting now.

As part of the larger re-writing of the Dallas gas drilling ordinance, a very large and impressive coalition of homeowners groups, neighborhood associations, and environmental organizations have all endorsed the idea of Dallas requiring local off-sets for any pollution released by new gas facilities within the city limits. A company would have to pay for projects that would reduce as much pollution as it was estimated to release every year. Dallas would be the first city in the country to adopt such a policy, but it probably wouldn't t be the last. And it wouldn't take that many before you started seeing an impact on industry's emissions.

We have a model in the successful Green Cement Campaign of the last half decade, that also started in the Dallas City Council chambers with a first-in-the-nation vote. All it took was a dozen cities and counties passing green cement procurement ordinances to get the cement industry's attention. As of 2014, something like 300,000 tons of air pollution a year will have been eliminated because there are no more dirty wet kilns in North Texas.

We can do it again. This time with gas patch pollution. We have to. Nobody else is going to do it for us.

It’s a Wonderful Fight: Downwinders Wins First-Ever Green Source Environmental Leadership Award

From the tragically ridiculous, to the sweet sublimity of community…..Only hours after being kicked-out of Dallas City Hall, Downwinders Director Jim Schermbeck showed up at the first annual Green Source Environmental Leadership Awards dinner and ceremony to accept the honor, and terribly heavy piece of sculpture, that goes with winning in the Grassroots Organization category. For hours before then, he’d been in exile, watching on a computer screen as the Dallas Gas Task Force disassembled the progress he and others thought they had made over the last 6 month of work. He had lots of time to reflect on when he’d ever even come close to getting thrown out of a meeting before…..More than 12 years now, during an clean air planning session in Arlington with former Collin County Judge Harris presiding. Back then he and Downwinders members were trying to to tell officialdom that the Midlothian cement plants really did contribute to DFW smog, should be included in these clean air plans, and should be required to put on new controls. Crazy talk like that. Schermbeck would not shut up from his seat on the outside of the decision-making circle that the state was purposely underestimating the bad impact of the cement plants’ pollution. He and Harris almost took it out in the Hall. As it turns out, that same pair would later collaborate on the best clean air plan DFW ever cobbled together, and yes, as a matter of fact it did include new controls for those cement plants. So here Schermbeck was in 2012, taking on the gas industry juggernaut as it nudges its way into the City of Dallas. Adopting the crazy stand that allowing natural gas mining in Dallas without better controls will make already bad air worse, and put residents in harms way. That city Park land should not be Gasland. Openly quarreling with traditional allies. Going out on an unpopular limb – again. Schermbeck believed he’d done the right thing at City Hall in so publicly standing up against the last-minute roll back that was going on, but as an organizer, one always keeps a seed of doubt alive. Coming directly from the very late and frustrated ending of the Task Force into the Awards party already on-going at the new Eco-op near White Rock Lake, that seed of doubt withered. Beekeepers. Worm Ranchers. Eco-friendly event planners. Old-fashioned Hell-Raisers. Community icons. People who’ve been doing this for 30 years that you haven’t seen in 20. People you’re meeting for the first time but already have three friends in common. Approximately 120 of DFW’s most ardent green folk and activists were gathered together – and it wasn’t even an Earth Day event! And the crowd looked like Dallas itself does these days, with a more diverse collection of skin tones. And here they were in their own space, a real-life mortar and bricks expression of a commitment to needed infrastructure in the regional environmental scene. It was an overdue celebratory meeting of the tribe. When Downwinders’ name was read as the winner in its category, Schermbeck had a “It’s a Wonderful Life” moment. The enthusiasm of the reception caught him off-guard. He’s not used to being that popular in public, and of course, he’d just been so unpopular in public he was escorted out of City Hall. Even more than the title, or the award itself, it was that rousing reception from peers and comrades that turned out to be the biggest prize anybody could ever take home. And for that especially, the Staff and board of Downwinders at Risk sincerely thank the Memnosyne Foundation, Green Source DFW, and everyone who attended and voted for us for what we’ll take as a right-in-the-nick-of-time fateful affirmation of our mission to get out front and lead, even if that means occasional friction with the status quo, and alternative seating arrangements.