The EPA's Unconscionable War on Fracking

The Fifth Amendment of the Constitution guarantees that "no person shall be ... deprived of life, liberty, or property without due process of law."  For government to harm investors in a private business by bringing false charges against that business is most certainly a violation of the Fifth Amendment.  The Environmental Protection Agency, it seems, has been engaged in just this sort of unconstitutional activity ever since Obama appointed Lisa Jackson as director.

The main target of this overzealous prosecution has been companies that produce fossil fuels.  Whether it be mountaintop mining, offshore or Arctic drilling, or hydraulic fracturing, the Obama EPA has moved swiftly to block new exploration and production.  The bias against fossil fuels that exists at the agency would be bad enough, but the fact that the EPA may have employed illegal and unconstitutional tactics in support of its green agenda is far worse.  

Over the past 50 years, tens of thousands of oil and gas wells have been drilled using hydraulic fracturing or "fracking" (6,000 recently in the Bakken shale region of North Dakota alone).  During this period, only two significant cases have been brought to light suggesting contamination of sub-surface water -- both by the EPA and both involving questionable if not outright fraudulent data.

The most recent case involves natural gas wells in the vicinity of Pavillion, Wyoming, a metropolis of 126 souls in a remote region in the central part of the state.  The EPA was quick to make public its draft report of the Pavillion wells and made sure the report received extensive press coverage, thus trying the case in the court of public opinion before the facts were known.

This practice of issuing draft reports before scientific analysis has been completed is, in and of itself, a violation of the constitutional rights of citizens.  Once a company's reputation has been damaged as a result of false or incomplete reports receiving extensive national media coverage, that company and its investors have suffered irreparable harm.  Sen. James Inhofe has correctly charged that the EPA's issuance of the Pavillion report is "irresponsible."  Wyoming Gov. Matt Mead also charged that the report was unsound.  The EPA should be held to account not just for the Pavillion report, but for a pattern of releasing speculative draft reports.

But it's not just that the EPA has a habit of releasing incomplete reports based on inadequate research.  Those draft reports are not just incomplete.  It seems that they contain scientific errors and apparent fabrications that raise serious doubts about the ability of the agency to do its job.  The Pavillion fracking case is a good example.

While charging the drillers in question with contaminating groundwater, the EPA suppressed information in a manner that would compel any court of law to dismiss the case and issue a serious reprimand, if not bring charges of contempt, against the prosecution.  Surely, the EPA was aware, or should have been aware, of the fact that well water in Pavillion has been "contaminated" with polluting chemicals for half a century.  This natural "pollution" is not the consequence of fracking, as the EPA charges, but of natural contamination.

Not only did the EPA report suppress this evidence -- evidence that argues strongly against contamination on the part of drilling company -- but it failed to address further scientific evidence that would rule out contamination.  Not only were Pavillion's water wells already polluted decades before drilling began, but the pollution that the EPA says entered the system from drilling involved chemicals never used in fracking.  (They are, however, used in the construction of water wells of the kind that might be found in Pavillion, not in oil and gas wells.)  And yet the EPA persisted with its charges, knowing that the very chemical it discovered in well water could not have entered the wells in the manner suggested.

Not only that, but the EPA sank deep test wells, far beyond the depth of actual oil and gas drilling in Pavillion, apparently in an effort to drill until some form of naturally occurring pollution was discovered so that the drillers could then be charged with causing it.  It seems that the EPA drilled into deep natural gas reservoirs well beneath the fracking zone, then charged that the well water was being polluted not by those deep reservoirs, but by the shallower fracking actually taking place.

When it comes to the EPA, it's always "heads we win, tails you lose."  But that way of treating American citizens is not what the Founders envisioned or what the Constitution allows.  Perhaps Lisa Jackson has not had time to read the Constitution.  That seems likely, since she has been fully occupied trampling on the rights of citizens.

I suspect that the Pavillioin fracking case will eventually be dismissed, as was an earlier case near Dish, Texas, which was found to have no basis in fact by the state authorities in charge of regulating fracking.  Extensive testing revealed that the benzene purportedly migrating from drilling to the town's water supply did not exceed levels generally found in the U.S.  Again, the real culprit was an overly zealous EPA bureaucracy that seemed determined to further the agency's agenda of regulating, and shutting down, hydraulic fracturing -- and with it most new oil and gas exploration in America.

I suspect that the EPA will be proved wrong at Pavillion, just as it was in Dish, Texas, as further scientific investigation takes place.  The EPA will eventually drop its case entirely, but only after the reputations of the companies involved have been harmed.  And only after the EPA has secured its objective of gaining regulatory oversight of fracking on a national scale, which was the apparent objective of  its speculative reporting to begin with.

At that point, the EPA will be empowered to bring unsubstantiated charges against every fracking operation in the country, thus delaying drilling and making it so costly as to discourage further exploration.  That seems to be the hidden agenda behind the EPA's actions in Wyoming and Texas.

When federal agencies begin to wield power in an unconstitutional manner, depriving citizens and corporations of property in the most callous manner imaginable, one of our fundamental liberties has been lost.  It is time for the EPA to be not only reined in, but eliminated, and for whatever legitimate functions it has to be handed over to more responsible departments of government at the state level.

When an agency begins to attack private citizens with no regard for the law, there is no limit to the damage that can result.  Today it may "only" be the property of oil and gas companies that are at stake.  Tomorrow it will be not just the property, but the life and liberty of all Americans.  If the extralegal activity of federal agencies like the EPA is not curtailed, all Americans will soon be at risk of imprisonment at the whim of any one of the president's czars.  That is the attitude toward law that exists in a totalitarian state, not in a democracy.

Jeffrey Folks is the author of many books and article on American culture including Heartland of the Imagination (2011).

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