By Terri Hallenbeck, Burlington Free Press, May 16, 2012
MONTPELIER — An anti-fracking crowd gathered Tuesday night in Albany, N.Y., for a benefit concert that included actors Mark Ruffalo and Melissa Leo and musician Natalie Merchant.Somebody mentioned that Vermont was about to become the first state in the nation to ban the practice of extracting natural gas from shale. “The place exploded,” said Chris Tate, an activist from Hector, N.Y., who was there.
When Vermont Gov. Peter Shumlin signed the hydraulic fracturing ban into law Wednesday afternoon, those who’ve been fighting fracking around the country took heart.
“I think it helps our cause tremendously,” said Tate, co-founder of Finger Lakes CleanWaters Initative. A few towns around New York have banned fracking, but his group and a coalition of others are pushing their governor to extend the current moratorium on drilling into a statewide ban.
Rep. Tony Klein, D-East Montpelier, who co-sponsored the original bill to ban hydraulic fracturing, said officials in Michigan have contacted him seeking advice on how to pursue a ban there.
Vermont’s ban will have little to no immediate effect here, as there is no drilling taking place, none proposed and no solid information that Vermont has the underground gas to draw interest in fracturing. After signing the bill Wednesday, Shumlin conceded that this made enacting a ban easier here than it would be in states where land has been leased and drilling operations are in place.
Shumlin said there are still good reasons to ban the practice here. “We don’t know that we don’t have natural gas in Vermont,” he said. “This bill will ensure we do not inject chemicals into groundwater in a desperate pursuit for energy.”
Hydraulic fracturing is the practice of injecting water and chemicals under high pressure into underground shale to release natural gas. Along with banning the practice, the Vermont law bans the importation and storage of wastewater associated with fracking.
Natural gas companies contend the practice is safe and essential to the country’s energy future and that environmental concerns have not been scientifically proven. Opponents argue that hydraulic fracturing has contaminated groundwater and triggered earthquakes, among other concerns.
While environmental groups hailed Vermont’s new ban, a representative of the natural gas industry called it “poor policy.”
As Vermont has learned in the past, there are accolades and there are risks that come with first-in-the-nation legislation. An American Petroleum Institute official wrote to Shumlin last week, raising legal questions about the bill, which goes by the number H.464.
“We are informed that H. 464 may be subject to constitutional challenge under both the commerce clause and the supremacy clause,” Rolf Hanson, senior director of state government relations for the American Petroleum Institute, said in the letter to Shumlin.
Shumlin and the Vermont Attorney General’s Office discounted legal concerns.
Michael Duane, an assistant attorney general, said his office looked over the bill at legislators’ request May 4.
“Subject to judicial discretion and review, we believe that the risk of H.464 being found unconstitutional is low,” Duane and Agency of Natural Resources attorney Matt Chapman said in a letter to a legislative lawyer.
Concerns were raised over the bill’s ban on importation of wastes created through hydraulic fracturing, but Duane said hydraulic fracturing wastes are not considered “hazardous wastes” by the federal government, eliminating the issue of federal supremacy
On concerns raised over whether banning fracking would violate interstate commerce laws, Duane said the ban wouldn’t put out-of-state companies at a disadvantage over in-state companies because the ban covers all equally.
Shumlin said the fracking ban is in a long line of legislation that puts Vermont in the forefront on environmental issues, citing the state’s ban on billboards, its bottle deposit law, Act 250 environmental permitting and the annual Green Up Day as other examples.
Paul Burns, executive director of Vermont Public Interest Research Group, said he was in Albany, N.Y., on Tuesday for the anti-fracking concert and rally. He argued it was important for Vermont to ban the practice before landowners and companies had money on the line.
Jordan Gonda, a Vermont Law School student working with Vermont Natural Resources Council on the fracking legislation, said she comes from Pennsylvania, where fracking is well under way and has deeply divided communities between those worried about its environmental impact and those looking for the economic boon. Pro- and anti-fracking lawn signs stake people’s claims on the issue. Enacting a ban there would be tough, she said.
“It’s going to be a struggle for Pennsylvania to reverse its course,” she said. “It’s an important reason to ban it here in Vermont.”