Drilling/Fracking Related Activities Can Hurt You

There is Now a Dangerous Bill in the WV Legislature

Essay by S. Tom Bond, Retired Chemistry Professor and Resident Farmer, Lewis County, WV

Senate Bill 508, now in the Committees on the Judiciary of the West Virginia Legislature, introduced February 4, is a real stinker. It attempts to limit the common law definition of nuisance suit to fit the needs of the extraction industries.

Coal is a walking corpse, producing lots of money for a very few and a few jobs, is on the way down. Its waste condemns it to “least desirable” position among familiar fuels, and, in spite of what little regulation the State forces on it, converts thousands of acres of West Virginia to wasteland each year. At least three major coal companies are bankrupt.

Unconventional gas and oil drilling are wobbling like a drunken sailor. At best it is a “transition fuel” to renewable sources of energy, and money has been spent, and continues to be spent, like the sailor did while becoming drunk. People in the discovery and production end of the business enjoy bright hope, but have high cost of production, transportation and liquefaction, and ignore huge supplies near the big markets, Europe and China.

It is clear some of the state legislators want to reduce cost of extraction by transferring damage done by frackers and strippers to the rural folks living in and near these sacrifice zones. They can’t conceive of any way to improve life in West Virginia other than knuckling down to coal, oil and gas interests, and this new initiative is about the only advantage they can confer, since laws and enforcement are already so favorable to those interests.

That is the background for SB 508. What it does is to revise the definition of nuisance suit about out of existence. If you can meet the requirements of this bill, you would be able to make an ordinary damage suit, in most cases. The bill reads, in part “No person may bring an action for private nuisance unless proper evidence of physical property damage or bodily injury caused by the substantial and unreasonable interference exists.” So, witnesses don’t count. (You hillbillies aren’t reliable, even to judge your neighbor’s loss.)

Another noxious definition requires “…the activity involve(s) more than a slight inconvenience or petty annoyance and instead involve a real and appreciable invasion of that private use and enjoyment” (A little bit doesn’t count … how much is required?) The real kicker, though, is “For purposes of this section, an interference with the private use and enjoyment of another’s land is unreasonable when the gravity of the harm outweighs the social value of the activity alleged to cause the harm.” (Give up all hope ye who enter here.)
 How much “social value” does your life have, when it is contested by a corporation’s $500 an hour lawyers?

It goes on from that. It is clear the intent is to convert anyone with a WV state drilling & fracking permit to a lilywhite transgressor, with greased armor, that no claim can stick to. This thing needs to be stopped now!

There is Deceit in Leasing as Practiced Yesterday, Today, and Tomorrow?

Essay by S. Tom Bond, Retired Chemistry Professor and Resident Farmer, Lewis County, WV

We are learning that our society, at the top and now working down, goes on the old principle of “anything I can get away with.” Standards of ethics and behavior, which applied a generation or two previously, are largely forgotten. There has always been a crust of this at the top and a lager at the bottom of the social scale which practiced this ethic, but the middle is more and more crowded by them. One must be more self-protective.

Nowhere is this more conspicuous than in mineral leasing, both in what is written in the contract and how lease taking is done. The first John D. Rockefeller was quite religious, but his brand of Christianity didn’t have much, if any, sense of fairness. It involved a sort of social darwinism. He said, “The growth of a large business is merely a survival of the fittest.” Born the son of a con artist, his Standard Oil gained control over 90% of the U. S. oil business.

Standard Oil was broken up by the federal government as a trust (illegal monopoly). Five year later it was reorganized as a holding company (which owned the fragments of the previous Standard Oil) and had to be broken up again. Some of the worst features go back to that time and his company. One in particular is the habit of leasing not only the drilling target layer but also “all oil and gas” as long as any of either is produced on the leased property.

As a friend once described it to me, from “heaven high to hell deep.” Such leases, taken originally as much as 100 or more years ago still hold today, although the land ownership and the company ownership have changed and the original owners are beyond memory – only names on paper in the courthouse.

Then the idea of separating estates came into existence so the children of the original owners of the lands could receive the “royalty” from oil and gas extracted, but the surface was sold to someone else. The royalty was pure gravy and usually was divided among the original owner’s children, and they divided it when giving to the next generation, which causes several kinds of headaches, both for mineral owners and for producing companies.

If a lease runs out, mineral ownership is still divided. And all mineral owners must be looked up if it is to be leased again. Royalty checks get smaller each generation when divided this way, and have gotten difficult to handle. Record keeping and taxation are a headache for the state.

The situation on my farm is instructive. It was leased in 1934 by my predecessor’s predecessor, a highflying physician in Buckhannon. He was an absentee landlord who had gone broke, but whose father in law, one of the wealthy Bennett family in Lewis county, bought it back at the courthouse steps. I called his daughter, who was the spokesman for the ones who inherited it. She could not even figure out which of the farms her father owned that I was talking about!

This rentier (as the economists call it) mentality cares no more about what happens to the land or community than the blind investor who only cares about increase on his investment. There is a single value in their system of thinking. They will sign about anything the company puts in front of them to keep that easy money coming. Bad for the future, for the environment, for the community and bad for the present surface owner.

Friends and I thought about this situation many years ago and decided it might be a good thing anyway. If it hadn’t, northern West Virginia might have become like much of the southern part of it. There the land has few areas suitable for farming, so coal companies bought it all, and today there are many large company-owned land holdings, and in places the ordinary citizen can’t even find a place to have a residence.

Another long-standing complaint is leases that include other features than oil and gas extraction, particularly for pipeline rights of way. They need to be able to drive along the pipeline, but the description of their need is sufficient so if they need to put in a pump station later, they have a road to it along the right of way. They sometimes call for waterlines, telephone, telegraph and electricity lines!

The lease man is at the bottom rung of the corporate ladder. If you want something outside the company plan, such as to go around a spring, he has to go back to his boss, and he to his boss who knows how far. Time consuming at best, this is more like a screening your request has to go through. Minor changes in a lease can be made, though. Write it on the contract and the lessor and the leaseman must initial it. Beware of the lease man who claims to make a verbal agreement; if it is not written on the contract, they will just laugh at you later when you try to get what you were promised.

One of the big complaints now is what is called “pooling” A company will decide on a drilling plan that includes several tracts. Laws proposed by the industry would allow it to take the rest after getting a minimum of 80%. This is effectively the same as eminent domain used for private gain. If the supply of drillable land was running out, there might be some public good, but leased land is abundant at this time. If it has to be condemned should the driller be allowed to put the well on the condemned land for his convenience, too?

There are endless horror stories about how the leases are executed. Pipelines are laid at a bad time of the year, spoiling hay harvest, or finished up in the fall too late for ground cover to be established before the winter rain. Fences are not replaced, animals are killed. I know of one case where they broke the pelvis of a nursing cow, which, of course could not be sold or utilized and had to be shot and buried. The calf had to be sold immediately, rather than as a weanling. You hear about roads not rocked because the work was done in warm, dry weather is a common complaint. Wells drilled so close to schools the noise and odor is strong. Children are apt to be more vulnerable to toxic substances, too.

Lessors do it once in a lifetime, leasemen do it several times a day. Lawyers are constantly looking to get more for the company. People engaging with a drilling company need to talk to other people who they know are knowledgeable, and if they can find one that is not biased for the companies, consult a lawyer. It’s tricky business, and risky from top to bottom!

See also the recent article on the XTO landman who defrauded West Virginians.

A unique collaboration between The Ecologist and Link TV  lifts the lid on fracking and the shale gas boom . . .

Hydraulic fracturing, or fracking, is a process that injects water, sand, and chemicals into underground rock (usually shale) at high pressure to extract natural gas. But it is highly controversial. Supporters say it provides the US with a cheap source of fuel and helps provide jobs and prosperity, while opponents say it pollutes air and water.

Now, as fracking goes global, communities in Britain, South Africa, Poland – and beyond – have to decide between environmental concerns and big financial incentives from the energy companies. The Ecologist has partnered with Link TV’s Earth Focus to contribute films being broadcast as part of the Link-TV  Fracking hell: the big picture special:

 “Fracking hell? The untold story”

This is a look at the risks of natural gas development in the Marcellus Shale: from toxic chemicals in drinking water to unregulated interstate dumping of potentially radioactive waste, are the health consequences worth the economic gains? Watch it

Further reporting

• How dairy farms suffer in US gas fracking boom.  By Dimiter Kenarov. Read
• Youngstown: where promise and the curse of shale gas collide.  By Dimiter Kenarov. Read.
• Livestock falling in in fracking regions, raising fears about food.  By Elizabeth Royte. Read.
• How Poland’s dash for gas turned sour.  By Andrew Wasley. Read.
• Fracking our future: the corrosive influence of extreme energy.  By Frack Off Read.
• Shale gas: the facts beyond the myths. By Monica V. Christina Read
• Middle England and activists unite to oppose shale gas rush. By Jan Goodey. Read.
• The environmental costs of the new US gas drilling boom. By Jim Wickens. Read.
• Shale gas may be ‘dirtier than coal’.  By Tom Levitt. Read

For full coverage of fracking by the Ecologist see here