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Monday, February 27, 2012

NY Judge Backs Townspeople’s Right Banning Marcellus Shale Fracking

Decision Could Set National Precedent On How State Government Can Regulate Gas Drilling... by Jack Swint

“This case is about land-use authority; it comes down to whether a municipality that has land-use authority, such as a village, city or town, can determine where heavy industrial uses are allowed or if they are allowed.” Mahlon Perkins, Dryden New York City Attorney

For the first time since the natural gas drilling procedure became controversial, a New York State Supreme Court Judge has ruled local communities have the right to ban the use of fracking within their jurisdictions, even if the state has authorized it.

According to ProPublica, an independent non-profit journalism newsroom, the new decision could set a national precedent for how local governments can regulate gas drilling. The court ruled on February 24, 2012, that towns have the right to ban drilling despite a state regulation asserting they cannot. At issue was a zoning law in Dryden, a township adjacent to Ithaca and the Cornell University campus, where drilling companies have leased some 22,000 acres for drilling.

In August 2011, Dryden's town board passed a zoning law that prohibits gas drilling within town limits. The next month, Denver-based Anschutz Exploration Corp. sued the town, saying the ban was illegal because state law trumped the municipal rules. Lawyers representing Dryden countered that New York courts have allowed towns to ban mining and that the same prohibition should apply to fracking.

Mahlon Perkins, Dryden’s town attorney, says the case is not about fracking. “This case is about land-use authority,” he told the Ithaca Journal. “It comes down to whether a municipality that has land-use authority, such as a village, city or town, can determine where heavy industrial uses are allowed or if they are allowed.”

New York law promotes the development of oil and gas resources in the state. State Supreme Court Justice Phillip Rumsey addressed this point in his decision, writing…"Nowhere in legislative history provided to the court is there any suggestion that the Legislature intended, as argued by Anschutz to encourage the maximum ultimate recovery of oil and gas regardless of other considerations, or to preempt local zoning authority."

The Dryden case is merely the latest in a string of similar conflicts arising from Colorado to Pennsylvania that pit local communities against state oil and gas laws. It is common for local governments to zone industrial or commercial land, or to institute ordinances for noise or traffic. When it comes to the development of natural resources like oil and gas, the industry contends that local government shouldn't make those decisions.

In addition to the environmental and health concerns over fracking, basic fundamentalist have also been arguing for the rights of localities against state or federal laws. According to Eric Goldstein, a senior attorney for the Natural Resources Defense Council in New York, the right of local governments to determine their own land use has been guaranteed by the Constitution for over a century. "The argument is simple; New York state laws shouldn't override the authority of local governments to protect their constituents."
Anschutz's lawyer, Thomas West, said he was not sure whether the company would appeal the decision.

New York environmental attorney Joseph Heath claims that even if they do, “Tuesday's win could help set a precedent for other communities.” Despite the threat of similar lawsuits from a major corporation, local fracking bans and moratoriums have continued to grow in the last few years. “People are now concentrating on local governments because that's the best form of protection against fracking,”

Fracking Also Linked To Flammable Water Within Marcellus Shale
The controversial use of hydraulic fracturing to bolster natural gas drilling has also been linked scientifically to flammable drinking water in Northeastern PA and Southern New York.

In their published report in May 2011, Four Scientists from Duke University found that levels of flammable methane gas in drinking water wells increased to dangerous levels when those water supplies were close to natural gas wells. They also found that the type of gas detected at high levels in the water was the same type of gas that energy companies were extracting from thousands of feet underground, strongly implying that the gas may be seeping underground through natural or manmade faults and fractures, or coming from cracks in the well structure itself.

“Our results show evidence for methane contamination of shallow drinking water systems in at least three areas of the region suggest important environmental risks accompanying shale gas exploration worldwide,” the article states. The group tested 68 drinking water wells in the Marcellus and Utica shale drilling areas in northeastern Pennsylvania and southern New York State. Sixty of those wells were tested for dissolved gas. While most of the wells had some methane, the water samples taken closest to the gas wells had on average 17 times the levels detected in wells further from active drilling.

The group defined an active drilling area as within one kilometer, or about six tenths of a mile, from a gas well. The average concentration of the methane detected in the water wells near drilling sites fell squarely within a range that the U.S. Department of Interior says is dangerous and requires urgent “hazard mitigation” action, according to the study. Even though the researchers did not find that any of the chemicals used in fracking had contaminated the wells, they were alarmed by what they described as a clear correlation between drilling activity and the seepage of gas contaminants underground, a danger in itself and evidence that pathways do exist for contaminants to migrate deep within the earth.

“We certainly didn’t expect to see such a strong relationship between the concentration of methane in water and the nearest gas wells. That was a real surprise,” said Robert Jackson, a biology professor at Duke and one of the report’s authors.
It should be noted that also in 2011, The Center for Rural Pennsylvania released findings, saying there was no "major influence from gas well drilling or hydro fracturing on nearby water wells, when considering changes in potential pollutants that are most prominent in drilling." In this study, statistical analyses of post-drilling versus pre-drilling water "did not suggest major influences from gas well drilling or hydro fracturing (fracking) on nearby water wells, when considering changes in potential pollutants that are most prominent in drilling waste fluids."

When comparing dissolved methane concentrations in the 48 water wells that were sampled both before and after drilling, the research found no statistically significant increases in methane levels after drilling—and no significant correlation to distance from drilling. "However, the researchers suggest that more intensive research on the occurrence and sources of methane in water wells is needed.”

1987 EPA Reports Fracking Related To Water Contamination In Ripley WV
As far back as 1987, the EPA warned Congress of its findings in tests conducted on the well water of James and Ruth Parsons that led them (EPA) to declare that high levels of pollutants and contaminates were discovered. And that they believed the chemical pollutants were associated with the gas well that had been fracked within 600 feet of his well causing Parsons water to no longer be suitable for drinking. (Report linked below) The EPA claims that WV authorities knew as far back as 1984 when the department of mines performed water well inspections on the Parsons property due to the oil and gas well that was drilled in October 1982 by Delaware Company of Kaiser Exploration and Mining. The report states that the Kaiser gas well was “hydraulically fractured.”

The 1984 report claims contamination problems in the water were “first noticed about a year and a half after the Kaiser gas well was hydrofracted and that from the outset, the state suspected that the nearby gas well was the cause of the water contamination problems.” A final report by the WV Department of Energy, Oil and Gas Division on August 7, 1985 states that an inspector went out to the Parsons water well 3 years after it was drilled and more than a year after the pollution was found. He found adequate cement strength in that well and adequate fresh water casing.

This is significant because in alleged cases of water pollution from fracturing, the industry often says that there was a failure of the well casing. The report also said that more than a year after pollution had first shown up in the Parsons water well, the inspector of the gas well found no signs of surface or underground pollution. (Reports linked below)

Five analyzed laboratory test results by the WV Health Department on Parsons well water all conclusively found contaminants that were a “gel” and a “sealant.” They reported that the water smelled like hydrocarbons, which is part of the makeup of natural gas. (Hydrocarbon gases)

The State Of West Virginia Refuses Financial Help To Parsons
A November 8, 1984 letter from M.S. Chief James E Rosencrance with the WV Environmental Health Services Lab to the Jackson County Health department states that the county had taken at least 3 samples that conclude Mr. Parsons well water was contaminated from what they believe was caused by “gelatinous materials” found in their tests that were directly the result of the fracking nearby.

Then in April, 1985 Rosencrances office notified Mr. Parsons by letter that his well water was never again fit for human consumption. He also explained that there were no funds available from the state of WV to assist Parsons in correcting the problems.

The “ superfund programmed administered by the Environmental Protection Agency is restricted on any assistance which they may provide relative to oil and gas drilling operations affecting the quality of your well.” In 1986, Parsons filed suit against Kaiser Exploration And Mining Company who drilled the oil and gas production well in 1982 after leasing an 85 acre track from the Parsons. The Health Department also advised the Parsons that “no treatment or process will solve their problem of contamination and that a new water source will have to be found to safely supply water” to their home.

More recently, According to a news article in the West Virginia Record by Lawrence Smith in 2010, Dennis and Tamera Hagy of Jackson County filed suit against four oil and gas companies for contaminating their drinking water. They say their water had "a peculiar smell and taste." The parents, as well as their two children, are suffering from neurological symptoms. Also in 2010, Jeremiah Magers of Marshall County reported that "As soon as they 'fracked' those gas wells, that's when my water well started getting gas in it." He also lost all the water in his well.

In Wetzel County, Marilyn Hunt reported to the EPA in 2010 that: "frac drilling is contaminating the drinking water here." Residents report health symptoms, such as rashes and mouth sores, as well as illness in their lambs and goats, which they suspect is linked to drinking water contamination.

Requiring Companies To Disclose Chemicals Used During Fracking 
In February, 2012 Texas became the latest state to require companies to disclose the types of chemicals used in hydraulic fracturing Adopted by the state legislature last year, the new rule has been heralded by environmentalists and industry as an important step in transparency for the controversial drilling method. In addition to disclosing the name of each chemical ingredient applied during fracking, the regulation calls for the information to be posted on a national website, FracFocus. Four other states, Wyoming, Louisiana, Montana and Colorado have also adopted chemical-fracking disclosure rules.

Other states considering the adoption of their own set of rules include Alaska, West Virginia and Oklahoma.

In Closing

The Marcellus Shale natural gas exploration is the hottest ticket right now in state politics. Everyone is claiming that this will bring thousands of jobs and give lifeblood to the communities involved and the entire state. Lawmakers want to tie up and control every aspect of this industry which then, won’t allow local communities to have any say-so period.

The recent New York ruling gives communities the right to ban the use of fracking within their jurisdictions, even if the state has authorized it. To date, the majority of companies actually doing the drilling are from out of state and so are the workers themselves.

West Virginians already know the results of energy extraction techniques from mountaintop removal coal mining. You can see those results everyday while driving throughout WV looking at what’s left of the mountains that were once known as being majestic and grand. Now, as the fracking boom makes its way here, residents face a whole new set of problems including this industry pumping the states streams excessively low or dry. And the laxed State regulations will allow them to do this.

Fracking-related activity is already the suspect culprit in a toxic algae bloom that wiped out thousands of fish, mussels and other aquatic life in 35 miles of Dunkard creek which flows in Monongahela County WV and Green County Pennsylvania, which is one of the most biologically diverse creeks in both states.

WV residents and state officials don’t need to allow these drilling companies to come in so quickly and set up shop to rake in their billions at our expense. Yes, it’s a boom for the economy and will put money in the pockets of landholders who sign lease agreements. But, there are so many scientific red flags of the long lasting potential hazards that come with this industry.

Lawmakers need to step back and watch what other states are doing before allowing this industry to just bust lose in WV. Listen to the voices of the citizens in New York and that recent court ruling that gives communities the right to ban the use of fracking within their jurisdictions, even if the state has authorized it.

End Of Story...

Jack Swint-Publisher

West Virginia News
E-Mail: WestVirginiaNews@gmail.com
Website: http://WVNewsOnline.com
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