The Gas Menagerie

Josh Fox’s documentary “Gasland” triggered a groundswell of opposition to fracking, the technology driving America’s gas-drilling boom. Now, as the industry hits back, Fox and other Columbians are digging in.

by Paul Hond Published Summer 2012
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“People have basic property rights under the Fifth Amendment and the Fourteenth Amendment,” Kraham says. “Those rights can be limited by zoning under very old federal law, to the extent that zoning is adopted to protect the public health and welfare. If I own property in a residential neighborhood and the municipality tells me I can’t put in a metal-plating facility, that’s because keeping that kind of facility away from a residential area protects the public health. It’s been understood that that is an acceptable restriction on private-property rights. The state of Pennsylvania has now impacted people’s private-property rights. But has it done so on the basis of public health and safety? We would say no. Putting a compressor station or a drilling rig three hundred feet from a public school or three hundred feet from my house affects my property rights in ways that don’t protect the public health.

“The question is, does the state have the authority to do this? It undercuts everything we’ve come to understand about zoning and local authority.”

The state’s argument, according to Kraham, is that the legislature has the authority to determine policy statewide, and has decided that the development of natural gas is in the state’s interest, and that the municipalities’ authority can be restricted.

But, Kraham says, “Pennsylvania’s constitution has a provision giving people the right to a safe and clean environment. One of our claims is that the state is preventing municipalities from exercising their obligation to protect the environment. Another claim is that, under the Pennsylvania constitution, the legislature can’t adopt what is called a special law, meaning that you can’t adopt a law that applies to just one person or just one industry. Every other industry in Pennsylvania is subject to zoning. This one isn’t.”

Meanwhile, law students in the clinic have traveled to towns like Towanda in north-central Pennsylvania to see drilling operations and their effects firsthand. Andrew Kirchner ’09CC has been examining fluid-disposal issues, specifically, the enormous wastewater pits that have bloomed on farms and fields. Of the two to eight million gallons of fluid pumped into a well for a frack job, about half flows back up.

“These wastewater impoundments are being used in ways that are hazardous to the environment and human health,” Kirchner says. “Some impoundments have no fences. There are ripped liners and liners held down by bags of concrete, and conditions where the water table rises above the base of the impoundment and takes on polluted water. Frack water is really noxious. If you live within a thousand yards of it, you can smell it, and it can give you nosebleeds and make you dizzy.

“One of the most dramatic things we saw was an impoundment in the backyard of a house. This is a populated area. You see house, drilling operation, house, drilling operation. There are compressor stations, well pads with five to ten trucks, huge derricks. At dusk, they bring in floodlights, and the drilling is really loud. People can’t sleep.

“There is pipeline activity everywhere: bulldozers clear wide swaths for the pipelines. These are state forests, state game lands, and they’ve been cut up. This is a beautiful part of the country, and the amount of industrialization is hard to believe.

“But the big shock for all of us was the truck traffic. Every other vehicle is a tanker truck. The trucks go from the impoundment to the well site back and forth, day and night. They suck up water from ponds and streams, they drive to injection sites in Ohio to get rid of the waste. They have created such deep grooves in the road that the bottom of our car was scraping the road and got stuck.”

Yet for all this physical evidence, it was a section of Act 13 that really drove the message home for Kirchner.

11) If a health professional determines that a medical emergency exists and the specific identity and amount of any chemicals claimed to be a trade secret or confidential proprietary information are necessary for emergency treatment, the vendor, service provider, or operator shall immediately disclose the information to the health professional upon a verbal acknowledgment by the health professional that the information may not be used for purposes other than the health needs asserted and that the health professional shall maintain the information as confidential. The vendor, service provider, or operator may request, and the health professional shall provide upon request, a written statement of need and a confidentiality agreement from the health professional as soon as circumstances permit.

“It’s brazen,” Kirchner says. “Limiting what a doctor can discuss with a patient or other doctors — that’s beyond everything for us.” 

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