Please note! This essay has been submitted by a student.
This paper will look at three states using Daniel Elazar’s model of political culture – Colorado (moralistic), Ohio (individualistic), and Virginia (traditionalistic) – and how they vary on laws pertaining to the regulation of hydraulic fracturing (fracking), and if they mirror the political culture they belong to. This paper will look at different aspects of fracking regulation: the distance required from public and residential buildings (setbacks), whether or not the state requires the list of chemicals used in the injection process, and wastewater disposal. It will also look at which counties, cities, or municipalities have banned the process or imposed moratoria.
I, in part, used the election results of the 2012 Presidential election for the selection of the states. I first separated them into three different groups based on Daniel Elazar’s political culture. I then used the election results from politico.com to determine which states were the closest and had the highest turnout rate. Along with this I found which states hydraulic fracturing is active in, and how much oil shale lies within their borders.
Colorado, as of February 2014 (for all states, see Active Oil and Gas Wells in the United States), has 84,367 wells drilled, and contains the Denver and Park Basins, the SW Colorado Coal Area, as well as parts of the Raton, San Jan, Piceance, Uinta, and Hannah-Carbon Basins. There was a 71% turnout rate with a 4.7% difference in the election results. (Politico)
On the eastern border of Ohio lies parts of the Central and Northern Appalachian Basins. There are 37,958 wells in the state. There was a 65.2% turnout rate with a difference of 1.9% in the election results. (Politico)
The western arm of Virginia barely touches the Central Appalachian Basin and contains 8,292 wells. There was a 66.9% turnout rate with a 3% difference in the election results. (Politico)
The issue of fracking is a polarizing issue in American politics. The research I have done reflects this greatly. The awareness of the issue has grown due to documentaries, such as Gaslands and Gaslands II, along with the film Promised Land. Both of these films are anti-fracking propaganda. Because of this polarization it is difficult to find sources with no bias; as most sources are anti-fracking.
Daniel Elazar’s model of Political Culture is based on people’s opinions towards government. He defined three different cultures: Moralistic, Individualistic, and Traditionalistic. Moralistic culture is mainly in the Northern states and emphasis the community, and government is seen as a positive force. Individualistic cultures, mostly in New England, view government as a means to an end, that is, government should encourage private initiative. Traditionalistic culture dominates the south, particularly the states that left the Union prior to and during the Civil War. These states view government as a way to keep things as they are, such as social classes.
Fracking is a method of hydrocarbon extraction that uses a slew of chemicals, water, and sand to break apart oil shale within the earth. Horizontal drilling is the most prevalent, as it allows for greater hydrocarbon extraction. In horizontal drilling a vertical shaft is drilled a certain depth and then the drill begins to curve until it has gone a certain length through the oil shale. After this a device is sent down to make holes in the pipeline so the fracking fluid can cause the fractures in the oil shale. Once it has been fractured the shale releases its contents which are pulled up through the pipeline and into an above-ground pipeline for refining.
Fracking has become a controversial topic due to no federal regulation under the “Halliburton Loophole.” This loophole was in the Energy Policy Act of 2005 under President Bush and exempted natural gas extraction from the Clean Air Act. (Kosnik, 2007) From this action the regulation fell to the states.
Fracking in the United States has a history going back to 1860 when artillery shells were used to break apart the hard rock formations to release the oil or gas. The “exploding torpedo” was replaced with nitroglycerin, a contact explosive, soon thereafter. The industry exploded in the 1950’s after non-explosive methods of fracking began to be used, and up to 3,000 wells a month were being fracked. (MacRae, 2012) Now there are 1,156,870 wells in the United States (See Active Oil and Gas Wells in the United States – February 2014 below).
A recent paper written by Sara Rinfret, Jeffrey Cook, and Michelle C. Pautz, entitled Understanding State Rulemaking Processes: Developing Fracking Rules in Colorado, New York, and Ohio, dealt with rulemaking in different states and the different parties associated with the creation of the laws. They based their selection on geography, rather than political culture. (Pautz, 2014)
There is another article entitled State Hydraulic Fracturing Disclosure Rules and Enforcement: A Comparison by Mathew McFeely, which looks at how the states differ in rules and regulations regarding fracking. He concludes that fracking regulation at the state level is inadequate as it stands, and companies use loopholes within the laws to prevent disclosure. (McFeeley, 2012)
I have included images at the end of the paper so the reader can get a sense of how prevalent this issue is in the states I selected. It helps to see how many wells are in each state, the area which they are located, and how close they are to each other. Also included is a list of the active oil and gas wells in the US as of February 2014, as well as a diagram of how fracking works, and a map of the oil shale in the United States.
In one sense the regulation of fracking is a continuation of the “devolution revolution” began by the Reagan administration in the 1980’s. The devolution revolution, simply stated, is state governments taking more control, in terms of policy enactment, from the federal government. This revolution devolves further, with regards to fracking. This paper will talk about Colorado further on, where different cities and counties have moved to ban the practice, and there is a potential bill in the works not to ban fracking in the state, but to allow cities and counties to decide for themselves.
In Colorado they have different setback laws for each area, and the laws fall into four different categories:
Buffer Zone (How far a well must be from a “…Residential Building Unit; and every five thousand (5,000) square feet of building floor area in commercial facilities or every fifteen thousand (15,000) square feet of building floor area in warehouses that are operating and normally occupied during working hours.”): 1,000 feet
High Occupancy Building Unit: within 1,000 feet. High Occupancy unit is defined as any operating Public School, Nonpublic School, Nursing Facility, Hospital, Life Care Institutions, Correctional Facility, or Child Care Center.
Outside Activity Area: 350 feet. Outside Activity Area is defined as “an outdoor venue or recreation area, such as a playground, permanent sports field, amphitheater, or other similar place of public assembly owned or operated by a local government…” and “…place of public assembly where ingress to, or egress from the venue could be impeded in the event of an emergency condition at an Oil and Gas Location less than three hundred and fifty (350) feet from the venue due to the configuration of the venue and the number of persons known or expected to simultaneously occupy the venue on a regular basis.” (Colorado Oil, 2012)
Ohio is much different. The laws are more uniform, requiring a distance of between 100-150 feet from any place. This changes when an occupied dwelling is concerned, in which the distance required increases to 200 feet, and when mandatory pooling is used. Mandatory pooling, in Ohio, is a measure used when a company cannot drill within their current location without breaking the distance laws. This allows them to gain access to land needed without the express permission of the owner. When land is acquired with mandatory pooling the distance decreases to 75 feet for tank batteries. The final exemption to the 100-150 rule are new wells that may be “…no closer than 50 feet to a public road or railroad track… 50 feet to a tank battery, or 100 feet to another well.” New wells can be closer than 100 feet to another well if “it will reduce impact to the landowner or to the immediate surface environment.” (ODNR, 2011)
Setback laws in Virginia are uniform. They have three different sections (520, 600, 700) based on conventional or Class II injection wells, coalbed methane wells, and coreholes. Each law has the same wording (the exemption being the changing of ‘well’ to ‘corehole’ in 700): “No permit shall be issued for any well to be drilled closer than 200 feet from any inhabited building unless site conditions as approved by the director warrant the permission of a lesser distance and there exists a lease or agreement between the operator and the owner of the inhabited building. A copy of the lease or agreement shall accompany the application for a permit.” (Virginia General Assembly, 2013)
The process of fracking requires hundreds of chemicals to be mixed with water and sand to break apart the shale formations that lie beneath the earth. The aforementioned article by Matthew McFeely goes into more depth on this subject. The article examines several different aspects of disclosure, such as disclosure of chemicals, the surrounding environment, giving
notice of fracking, the fluid used in the process, and pre-chemical disclosure, and trade secret exemption. An integral part of disclosure are the chemicals used, and they are separated in two different categories: products and additives. Products have one or more chemicals in them and have a trade name and a description of use. Additives are the individual chemicals in the products and usually have a Chemical Abstract Service number (CAS). Another key aspect of fracking is the proppant used. A proppant is a material used to stop the fractures from closing.
Colorado is one of two states that require companies to inform landowners before they begin to frack the area, but it is not required to inform them of the chemicals being used. They are also required to identify nearby water wells and abandoned oil and gas wells. Colorado requires that CAS numbers be given, but in the language lies a loophole. They require a maximum concentration number be given, not the actual concentration, which allows for leeway of the actual concentration used. Colorado requires the amount of base fluid used to be reported, as well as the type of fluid used for the base. All of the chemicals used in the proppant are required to be disclosed. Colorado is one of three states that provides a way for the public to challenge the trade secret exemption, but the companies don’t have to submit any factual numbers to gain this protection. (McFeeley, 2011)
In Ohio companies are not required to notify landowners of fracking, or the chemicals used. They are required to identify all geological formations the well goes through. Nearby water wells are required to be identified only when certain wells are being drilled. It is the only state that requires companies to keep track of water quality in nearby sources, but only for certain wells, and it isn’t required if the area is refractured at a later time. Ohio also requires CAS numbers, but they are similar to Colorado in that only the maximum concentration is required, and this allows for the same loopholes. Companies are required to report the maximum pressure used during the process. Again, like in Colorado, Ohio requires the amount of base fluid and the type of fluid used to be reported, as well as all of the chemicals used in the proppant. Ohio is the second of three states that allow for the public to challenge the trade secret exemption, but, as in Colorado, companies don’t have to submit factual information to gain the exemption. (McFeeley, 2012)
As of 2012 Virginia had no fracking disclosure laws. The Department of Mines, Minerals, and Energy said they will expand disclosure laws in January of 2014. (Nicholson, 2014)
Once again the article by McFeely provides excellent information on the subject. Once the fracturing is complete the fluid used in the process comes back up. It contains the chemicals used in the process, as well as high levels of salts, hydrocarbons, metals, and radioactive material. These wastes are exempt from federal laws dealing with hazardous waste (Resource Conservation and Recovery Act (rCrA), 42 u.s.C. § 6921 (b)(2)(A)) so it falls to the states to regulate this. Of the three states chosen only Ohio requires the amount of waste-fluid, process of disposal, and how it is stored be reported. No state requires that what is in the waste-fluid be reported. (McFeeley, 2012)
Bans or moratoriums on fracking have done well in Colorado. Recently the 17th Judicial District Judge Chris Melonakis upheld a ban on fracking in the town of Broomfield, Colorado. (Baltz, 2014) The results of an election on the ban in November 2013 were contested by the pro-fracking groups. The measure passed with 20 votes, which was cause for a recount. This is a growing trend in Colorado, where several towns and cities have banned fracking. (Breiner, 2013) In 2013 Lafyette voters approved of a ban on fracking, and voters approved of a 5-year extension on the moratorium in Boulder. (Boulder County, 2013) Other cities that have passed anti-fracking measures are Colorado Springs, Erie, Fort Collins, Longmont, Loveland, and Nederland. An anti-fracking group is attempting to submit a ballot that would allow for cities to ban fracking outright. (Aguilar, 2014) This comes as a result of the ruling in the 17th district.
The results have been similar in Ohio. Thirty-seven cities have banned or imposed moratoriums on fracking. (Local Actions against Fracking, 2014) Recently (March 2014) fracking was banned in the north-eastern part of the state as several earthquakes were said to have been caused by the drilling process. (Narciso, 2014)
The anti-fracking legislation in Virginia does not actually pertain to fracking currently within the state. As mentioned earlier in this paper, there is only a small part of Virginia that is part of an oil shale. The cities or counties in this area have, and in Fairfax County which is outside of the current fracking region, passed legislation supporting a ban and moratorium on fracking in the George Washington National Forest, which stretches from Virginia, through West Virginia, and into Kentucky. The Washington DC city council passed a ban on fracking in the area on March 4, 2014. (Earthworks, 2014) (The reason for the DC city council voting on this is that the aquifer under the George Washington National Forest supplies the city, and much of the surrounding area, with fresh water.) However, there has not been any votes to ban or impose moratoria on fracking in the state.
A state’s political culture can reflect its setback laws. It is very apparent in the difference between the three states, as Colorado has more stringent laws compared to the uniformity of the laws in Ohio and Virginia. When it comes to disclosure laws the lines get a little more blurred, as both Colorado and Ohio have similar laws while Virginia has none, and none of the states have any laws regarding the disposal of the fracking waste water.
I was very surprised while researching bans. The source I used has a very apparent bias and I could not find any sources that showed the failed anti-fracking initiatives. Bans and moratoria are succeeding in all three states. The issue of fracking seems to be a unifying issue, regardless of political culture. A recent study showed that officials in Ohio favor fracking. This is opposite of how the people feel, according to the amount of bans passed.
This is a rapidly evolving issue. Every day new stories come out, new articles are published, and more scientific study is occurring. This paper is likely out dated, despite working on it in the short span of 4 months. By this time next year fracking could be completely banned in Colorado, and more wells could be shut off in Ohio. At this point the fate of fracking is completely up in the air.