(Photo: Cyrus McCrimmon/‘The Denver Post’ via Getty Images)

 

As the Democratic National Convention gets under way in Philadelphia, activists across the country are pushing for bans on oil and gas extraction...

“Frack no!”

That provocative refrain ricocheted through the streets of Philadelphia on Sunday on the eve of the Democratic National Convention as thousands of clean-energy activists vented their fury at the party’s refusal to include a hydraulic fracturing ban in its platform.

The fight over fracking is, well, fractious, pitting environmentalists against fossil fuel interests, cities against states, Republicans against Democrats, and now Democrats against one another.

Despite all the high-profile battles over fracking at the national level, enacting a nationwide ban would be difficult, if not impossible, legal experts say. That has brought the fight to the cities and counties, where local voters and lawmakers have passed measures to regulate or ban fracking.

Those efforts have not gone unnoticed by the well-funded oil and gas industry, which has set its sights on state capitals, where lobbyists aggressively push for statewide prohibitions on local bans.

Fracking injects huge amounts of highly pressurized water, sand, and a combination of toxic chemicals underground to fracture rock formations so otherwise inaccessible gas and oil can be extracted. Proponents say the technique is environmentally sound, creates jobs, increases energy independence, and produces enough natural gas to build a clean-energy “bridge” to more sustainable resources such as wind and solar.

Critics contend that any benefits from fracking are overwhelmed by public health and environmental impacts. Fracking has been proven to contaminate groundwater, emit methane and other poisons into the air, and trigger earthquakes that now put 7 million Americans at risk of “induced seismic activity.”

On the campaign trail, Republican presidential nominee Donald Trump has supported the practice, while the highest-profile fracking opponent, Sen. Bernie Sanders, called for a national ban.  

The presumptive Democratic presidential nominee, meanwhile, has adopted a more nuanced approach. During a Democratic debate in March, Hillary Clinton said she opposes fracking when any locality or state is against it, when it causes methane releases or water contamination, and when companies won’t disclose what chemicals they use.

Clinton went on to say that the government must establish “a system that prevents further fracking,” which falls short of the outright ban that many groups seek.

Several efforts to include a ban in the Democratic Party platform failed, although a measure to strictly regulate the practice was approved.

“It was the first time I’d ever heard Democrats cheering about knowingly poisoning more people through fracking,” says David Braun, cofounder of Americans Against Fracking and a Sanders-appointed platform committee member. “They’re trying to make fracking a safe and palatable practice.”

(Clips from a new documentary about the fight over fracking, Dear President Obama, from director Jon Bowermaster and starring actor and activist Mark Ruffalo, are below.)

Robert Howarth, a professor of ecology and environmental biology at Cornell University who supports fracking bans, says it would be difficult to make fracking greener.

“I’m a little skeptical of regulation,” he says. “Methane is 100 times more powerful than carbon dioxide as a greenhouse gas. If methane leakage is more than about 2.7 percent, then it’s worse than coal for generating electricity.”

The average fracked gas well releases about 9.5 percent of its methane into the atmosphere, Howarth says. “If we did everything we possibly could, it would still not be 100 percent successful. It might be 80 percent, which is still a big, big problem,” he says, “and it would be so expensive, it would price gas out of the market.”

Although a nationwide ban may not be possible, the federal government has the authority to ban or restrict the practice offshore and on federal and tribal lands.

The Obama administration last year announced new rules to regulate fracking on 750 million acres of federal and tribal lands. The rules were designed to overturn a 2005 law, commonly known as the Halliburton loophole, that exempts fracking from the Safe Drinking Water Act. Under Obama’s provisions, strict rules would govern how fracking wastewater is stored and require companies to disclose the chemicals they use.

But the oil and gas industry and four states sued the administration, claiming that only Congress has the authority to regulate fracking on federal land. In September, an Obama-appointed federal judge issued a preliminary injunction against the rules and, last month, made the decision permanent.

“It will be appealed.... It shouldn’t be a precedent-setting case,” says Emily Wurth, water program director at Food & Water Watch. “The federal government has the authority to do this,” she says, noting that in January the administration successfully imposed a moratorium on new coal leases on federal land.

Democrat-backed measures to regulate fracking have been introduced in the current session of Congress, but with Republicans controlling both houses, it would take an unlikely Democratic sweep of Congress and the White House in November to pass any of them in the next session.

The Fracturing Responsibility and Awareness of Chemicals Act, for example, would repeal the Halliburton loophole; the Protect Our Public Lands Act would ban the issuing, renewal, or readjustment of fracking leases on public lands; and the far-reaching Keep It in the Ground Act would stop new oil and gas leases on the entire Outer Continental Shelf and halt new coal, oil, tar sands, fracked gas, and oil shale leases on federal land.

RELATED: Methane Discovered in Drinking Water Near Fracking Wells

That leaves state governments, which have the power to ban fracking, even on private land. In 2012, Vermont became the first state to prohibit fracking, although the move was largely symbolic, as the state has no oil or gas activity.

In January 2015, high-volume fracking was banned in New York, which sits atop part of the gas-rich Marcellus Shale formation, which has fueled a fracking boom in neighboring Pennsylvania. New York Gov. Andrew Cuomo backed the measure after several towns and counties outlawed fracking and an exhaustive seven-year study determined that it cannot be done safely.

Four months later, Maryland’s Republican Gov. Larry Hogan, who supports fracking, decided not to veto a two-year moratorium passed overwhelmingly by the state legislature. Western Maryland covers part of the Marcellus Shale, and activists are working for a permanent ban on fracking there.

Dozens of localities across the country have tried to prohibit fracking through local laws or ballot initiatives, with varying degrees of success. “Lots of grassroots groups are popping up in places affected by oil and gas development, and now they have activists with expertise in mobilizing communities,” says Damon Nagami, senior attorney at the Natural Resources Defense Council Action Fund, which has provided legal and policy advice to dozens of communities in at least nine states.

These and other “home rule” movements have rankled the oil and gas industry, which considers such campaigns illegal and unconstitutional. Calls and emails to a number of industry associations seeking comment were not returned, though groups such as the Pennsylvania Independent Oil and Gas Association have weighed in.

Local anti-fracking efforts are “rife with serious issues,” the group says on its website, including “the use of unwitting community residents to advance the political agenda of environmental extremists; the exposure of municipalities to significant damage awards [and] the potential for civil and criminal penalties against municipalities and municipal officials who adopt these ordinances.”

The industry is relentless when it comes to quashing local ordinances state by state, says Robert Kennedy Jr., president of Waterkeeper Alliance.

“They’re trying to undermine local democracy and open up entire states to industry profit taking, regardless of what local people want,” Kennedy says. “The system is corrupt. State legislators have become sock puppets for the industry by removing local planning and zoning controls.”

Lawmakers in North Carolina, Oklahoma, and Texas as well as courts in Ohio and Colorado have prohibited local fracking bans, overturning several ordinances that were enacted by municipalities.

But activists in some states, such as Colorado, are fighting back.

In May, Colorado’s Supreme Court overturned a fracking moratorium in Fort Collins and a ban in Longmont, because, it said, state law preempted them. Two other cities and Boulder County had also enacted fracking prohibitions that were blunted by the court decision.

But the court also approved signature-gathering petitions to put fracking-related initiatives on the ballot in November.

One measure would allow local governments to enact fracking, while another would mandate 2,500-foot buffer zones around all occupied buildings and sensitive areas, such as playgrounds and drinking-water sources, in localities that choose not to enact outright bans.

Activists have until next month to collect 100,000 signatures for each measure to get them on the ballot.

“We’re pretty confident they’re going to make the ballot and think we will find the support to get them passed,” says Lauren Petrie, Rocky Mountain region director at Food & Water Watch. “People are really fired up after the Supreme Court took away their right to protect their homes and families.”

“Fracking infrastructure is coming closer and closer to people’s backyards—in some cases about 100 feet from their back door,” she says. “Many people see this as the only way to protect themselves from industry because they can’t count on the governor, state legislature, or Supreme Court at this point.”

In Pennsylvania, meanwhile, the fight over fracking is more complex.

Natural gas production in the Keystone State is booming as companies exploit the Marcellus Shale formation and its vast reserves. Between 2011 and 2015, the state approved nearly 6,000 fracking wells, mostly in northeastern and southwestern Pennsylvania.

Industry opposition to ban fracking runs deep. Since 2010, a large swath of land along the Delaware River effectively has been off-limits to drilling until new regulations are adopted. But in May, Wayne Land and Mineral Group filed a lawsuit in federal court to end the moratorium.

Also in 2010, Democratic Gov. Ed Rendell prohibited the additional leasing of land for fracking in state parks and forests, but that move was overturned in 2014 by his successor, Republican Gov. Tom Corbett.

Last year, the new governor, Democrat Tom Wolf, reinstated the moratorium, protecting about 1 million acres, or 60 percent, of Pennsylvania’s state parks and forests atop the Marcellus formation.

“That was the beginning and end of all his great work on fracking,” says Karen Feridun, cofounder of Pennsylvanians Against Fracking. “They’ve gone all in on fracking, spending time enabling industry instead of protecting Pennsylvania.”

In its first two weeks, Wolf’s administration issued 73 fracking permits.

As for local bans, “it’s a little hard in Pennsylvania, because we don’t have home rule,” Feridun says.

 

The situation was aggravated in 2012 when the legislature passed a law prohibiting local bans and even local control over where gas and oil facilities are sited. In 2013, the state Supreme Court said removing local control over where facilities are located was unconstitutional. But the prohibition on local bans remains.

Even so, in 2010 Pittsburgh became the first city in the country to ban fracking, and a few other municipalities have passed bans that so far have not been challenged.

Then there’s California. The generally progressive state has often taken the lead on environmental regulations and does permit local bans. Still, a 2014 bill calling for a statewide moratorium pending further scientific review was narrowly defeated. For his part, Gov. Jerry Brown once called fracking a “fabulous economic activity.”

In a 2014 interview, Brown said it’s better to frack in California than import oil from places with fewer environmental restrictions via oil trains and polluting tankers.

“We could stop fracking tomorrow, but we’d be much worse off,” Brown said.

Given such resistance, at least 11 California cities and counties have attempted fracking bans.

In 2013, Marin County passed a resolution calling for a moratorium until stricter regulations are enacted. In 2014, Beverly Hills became the first California city to approve a ban, closely followed by Santa Cruz County. Also that year, voters in Mendocino County and San Benito County overwhelmingly approved ballot measures supporting a ban.

On Tuesday, Alameda County’s Board of Supervisors approved a fracking ban, as did Butte County voters last month. There are no fracking operations in any of the counties, and opponents want to keep it that way.

Other attempts have been less successful. In November 2014, voters in Santa Barbara County, where fracking is used to extract oil, rejected a ballot measure 63 percent to 37 percent after an industry group spent $7.6 million against the proposal and local oil companies threatened to sue the county if it passed.

Anti-fracking measures also failed in Monterey County and the city of La Habra Heights.

Other cities, including Los Angeles, Compton, and Carson, approved resolutions to ban fracking only to rescind them later.

“Pressure from the oil and gas industry in this state has been insane,” says Dan Jacobson, policy director of Environment California. “Far too often, they get their way.”

The next big battle will be in Monterey County, where an initiative to ban fracking and all new oil and gas drilling will be on the ballot in November. The southern part of the county has extensive drilling, including fracking, according to Luana Conley of Communities for Sustainable Monterey County.

“The oil industry is operating on blanket permits, using any methods they see fit. We don’t have any regulations,” Conley says. “We’re seeking to activate the local citizenry and take control of our future.”

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