NC must not permit fracking secrets

by Ryke Longest and Matthew McFeeley, News and Observer, November 22, 2013.

North Carolinians who value safe drinking water, clean air and quality of life take note: Fracking could soon put all of this in jeopardy. This heavy industrial process has sparked controversy as it moves into communities in states across the country, leaving complaints of air and water contamination in its wake. Now, North Carolina is poised to join them.

The N.C. legislature established a moratorium on fracking in the summer of 2012 to give the state time to assess risks and develop safeguards. But despite claiming it would develop some of the strictest rules in the nation to protect against the inherent dangers of fracking, it looks like the N.C. Mining and Energy Commission is going in the exact opposite – and wrong – direction.

The latest troubling move: Commissioners have indicated that at their meeting Friday in Raleigh they will consider granting the fracking industry an exemption from state transparency laws. Using this loophole, the dangerous chemical cocktail companies blast underground to break up the rock and release oil and gas could be kept secret from the state and the public. The News & Observer earlier this year reported that this change was made at the behest of Halliburton, the oilfield services giant.

This comes on the heels of a series of other worrisome developments, including provisions that would make it legal to force people to accept fracking if their neighbors sign leases and removal of community rights to ban or limit fracking within their own borders. The state even turned down federal funding to develop baseline data to track water contamination.

This is not the path North Carolinians want. A majority of N.C. residents oppose opening the state to fracking, according to a NRDC poll. The state’s moratorium was enacted for a reason. It should not be lifted until the state fully assesses the risks and determines how to truly protect North Carolinians against them.

The trade secret exemptions up for consideration Friday are particularly troublesome. Past experience in other states indicates that chemicals used in fracking pose serious health risks. Some are known or suspected carcinogens. Communities have a right to know the risks of these chemicals that could be transported, stored and used near their schools, farms, homes and drinking water supplies.

Safety information should never be kept secret from the authorities charged with protecting the public. Rather than granting the oil and gas industry another sweetheart deal, the commission should require real transparency.

After all, why should the fracking industry get special treatment at the expense of North Carolinians’ well-being? Rather than using established state law, commissioners have sketched out a new system designed exclusively for the fracking industry. This system would undermine public confidence in the legitimacy of secrecy claims by giving commissioners sole authority to determine whether information is secret after hearing only from the company making the claim. If other states can subject fracking companies to established transparency laws that guarantee the public a right to challenge questionable secrecy claims, North Carolina can, too.

The state needs information about hydraulic fracturing chemicals in order to exercise a number of its other responsibilities that protect its citizens. For example, emergency responders may need the information immediately if there is a fire, blowout or other accident at a well pad. Other states have rules ensuring they can provide needed information if companies are unreachable. It is inexcusable that North Carolina would not do the same.

The need for this information lives on for months or years after a well is fracked and a company has left town. The main protection from contamination is the casing and cement around a well. But studies show these barriers break down over time. Especially in this age of acquisitions, reorganizations and bankruptcies, it may be impossible to get crucial information from drilling companies in the future. The state must have the records it needs to trace or correct any problems found in the years to come.

North Carolina must not give the oil and gas industry a free pass to hide critical safety information from the public. And it should not lift its moratorium unless and until the state determines how to protect North Carolinians against the risks. The interests of the oil and gas industry must not be given priority over the safety of the state’s own residents

Ryke Longest is a clinical professor of law at Duke University. Matthew McFeeley is an attorney with the Natural Resources Defense Council.