Fracking was an issue in the last election, with Republicans accusing Biden of planning to end it and Biden defending himself by asserting he had no such plans. This is unfortunate. The planet-destroying reactionaries steered the conversation onto their turf and away from the brutal reality that if we want to survive as a species, one small thing we must do is stop fracking. A new book on fracking country in Pennsylvania, Up to Heaven and Down to Hell, elucidates the peculiar ways politics, culture and the law have affected fracking in the U.S. I caught up with the author, New York University professor Colin Jerolmack, with questions about this.
Ottenberg: The first thing that came to my mind when I finished the book, where you’ve done all this research for “Up to Heaven and Down to Hell,” and spent time there and lived in fracking country – do you think Biden should ban fracking and what does that mean with regard to 100 companies causing 70 percent of the world’s greenhouse gas, over the last 30 years?
Jerolmack: The first thing to make clear is that Biden can’t ban fracking in most places. He can only ban fracking on public land, which, in America, more than two thirds of fracking occurs on private land. And the only way that fracking can be banned on private land is either at the state level or through congressional action. What he can do is ban new leases on public land. And he’s put a moratorium on them and if you asked me should he turn that into a ban, yes, absolutely. It’s clear that to get even close to meeting our targets for emissions reductions to prevent planetary warming at the catastrophic level, we need to leave fossil fuels in the ground.
So I think Biden should turn the moratorium on additional leasing on public land into a ban, which I think he will. The moratorium’s a first step. But I don’t think that that’s enough to slow down fracking, nor are carbon taxes – but the fact that the API, American Petroleum Institute, and a lot of petroleum companies now support a carbon tax lets you know that that’s not enough. That’s what they’re trying to throw up as “if we get behind that, you won’t do what really needs to be done, which is an implementation of something much more comprehensive of which regulating fracking would be a part, which is the idea of a clean energy standard.” That’s going to need congressional action. It can’t be done through executive action. A clean energy standard would be along the lines of “by 2035 we will be on 100 percent renewable energy production,” and once you set that as a goal required through law and it has to be done, then basically however it is oil and gas companies get there, they have to fall in line. And they only have 15 years to fall in line. Even a ban on public land – aside from the fact that most fracking happens on private land – might not even reduce fracking that much, because companies would just frack MORE than they were planning to on private lands and make up for the losses of not fracking on public land. So what Biden can do regarding a ban on fracking is not enough to deal with the problem.
A clean energy standard – some states have done this, like California mandating that all cars will be electric by a certain year – you’re already seeing some states doing this. If the entire country does this, however the petroleum companies choose to get there, who cares?
Ottenberg: Could you briefly recapitulate the cornerstone of American property law that you mention in your book, namely that land ownership extends above and below the land’s surface and how that has meshed with fracking.
Jerolmack: America is the only country in the world where property rights extend, as it says in common law, up to heaven and down to hell. We inherited this from British common law, which has this idea as well, so that whatever’s under the surface is also yours, however, in British common law and most other commonwealth countries that inherited their property law from Britain, like Canada and Australia, there’s a huge caveat to that, which is that basically any valuable mineral that’s there belongs to the government or the crown. The United States is the only country where this is the predominate form of property ownership, well over half. In America the big exemptions to that were when America gifted land to homesteaders toward the end of the Homestead Act, they stopped granting mineral rights and the government retained those. So over two thirds of all properties in America included the mineral rights with them. The United States is unique in that when it comes to something like oil and gas drilling where you have to drill down to this shale layer and then through it horizontally, every single individual whose property sits above where you want to drill needs to give their permission. In most other countries, because the government would retain those mineral rights, the government would not need to get the permission of every citizen to drill underneath them. On the flip side, it also means that every individual in America who owns those mineral rights gets the money. So they lease their land to a private company for drilling and they get a leasing bonus and if there’s any oil or gas taken out, they get a percentage of royalties.
There’s this huge debate in America about fracking. A lot of people support it and a lot of people oppose it. And you might think that how fracking proceeds is which side wins out in this debate. But actually fracking plays out on a case by case basis, as individuals on their own sit down with a representative of an oil and gas company at their kitchen table and decide whether to lease their own land. What we have with regard to fracking playing out in the rural heartland is the result of tens of thousands of individuals deciding privately, on their own, to lease their mineral rights. It’s this series of individual decisions, whereas in other countries, the government decides whether it is in the public interest to develop the mineral estates and then acts to either do that or to leave them there. This is what sets up fracking in the U.S. as this very personal, private decision that every individual landowner by virtue of owning the mineral estate gets to make on their own.
In some countries occasionally there’s an actual referendum on the ballot. Occasionally it’s just people voting in or out those who support developing those resources or not. But in America it’s a bunch of individuals who own the property, deciding on their own. So even though folks like me and you are impacted by these decisions, we don’t actually have a say in any way, direct or indirect, in how those decisions are made.
Ottenberg: In your introduction you mention the documentary “Gasland.” Did any of the people you encountered experience the horrors in that film?
Jerolmack: Yes. To be clear, there’s not a lot of evidence that I see that there’s widespread systemic contamination of water, of aquifers that provide water to hundreds of thousands or millions of people. But in so many places in rural America, including over one million households in rural Pennsylvania, if you are outside a city, you just rely on your own drinking water. You drill a hole, or you buy a house where it’s already usually done for you, and you just rely on the groundwater underneath your house being safe to drink. In Pennsylvania there are zero regulations on private water wells. You could drill a hole and start drinking it – it’s up to you to get it tested to see that it’s safe. It’s up to you to have it monitored to ensure that it’s safe. In Pennsylvania there are several hundred confirmed instances and likely many more, of an individual’s private drinking water being contaminated by gas drilling. On Greenvalley Road outside the town of Hughesville, Pennsylvania, a gas well was drilled and after that, six families that lived along Greenvalley Road experienced water contamination. All of them had baseline water tests that demonstrated that their water was free of methane and other contaminants before the gas drilling. The main thing that happened, which is the most common after drilling, was that the water was laced with methane itself, which finds its way through fissures into individuals’ drinking water. Two of the six families had explosive levels of methane in their water – so much methane that it can’t be dissolved in the water, and could develop as a gas that you could light on fire. Also two of the families had water that turned odd colors, like brown and pink.
In the early days of gas drilling, gas companies were not required to test the drinking water of people that lived near where they would drill, so some people who found explosive or high levels of methane in their water couldn’t prove that it was caused by drilling, because they never had the original tests showing that originally their water did not have methane in it. Basically every time this happened the petroleum company would say we didn’t do it, that methane was there before we got here. So there’s likely more. For the department of environmental protection to confirm a case, you have to have this baseline test. It also over time changed how far away the gas company needs to test the drinking water. For a long time in Pennsylvania they only had to test water wells within a thousand feet of where they planned to drill a gas well. But there’s instances of people living three thousand feet away winding up with contaminated water
Ottenberg: Could you briefly describe the part of Appalachia your book is about and the near total autonomy of landowners over land-use decisions.
Jerolmack: In this and similar regions, almost everybody that lives there, their families have lived there a long time. These are places that have not experienced any in-migration. They’ve mostly experienced out-migration, people who have left. The greater Williamsport area like a lot of middle America and Appalachia has experienced population loss, so-called brain-drain. Manufacturing dried up with deindustrialization. The idea that you could work a blue-collar job and support a family more or less disappeared. Many people who live in this region own a portion of land that belonged to their ancestors. They may not be farming themselves, but they own a 20, 30, 40, 50-acre plot that’s been in the family for four, five or six generations. There’s a feeling that land is kindred. A lot of the roads bear the surname of the families that live along them. That gives people a sense that it’s their land, not because the deed says so, but because their history is inscribed in this place. It’s an area where people are very conservative. I’d even argue that a lot of them are libertarian. They very much value self-reliance, the idea that I take care of myself, I don’t rely on anybody else, I don’t expect the government to help me, I don’t even expect my neighbors to help me and I should be able to do what I want on my property. They believe strongly in property rights, and this conception that it’s nobody’s business what they do on their land, just as it’s not my business what you do on your land. Live and let live is an animating philosophy of the place. How that relates to drilling is that when these gas companies came along and started offering leases, it never even occurred to anyone that it was anyone else’s business whether they leased or not. “It’s my land. I’ll do what I want. They’re my mineral rights. I have the right to profit from them.” But why I argue that the public SHOULD have some say is because fracking creates spillover effects that affect your neighbors. Water contamination is the worst case. But even absent the worst cases, to drill one well one time requires hundreds of big rigs and tanker trucks driving on small country roads that damage the roads and lining up in convoys so people sometimes can’t access their driveways for hours, creating ground-level ozone contamination with all these generators and trucks. When they flare the gas wells, when the burn the methane off, when they hook it to a pipeline, it lights up the entire valley floor and it’s as loud as a jet engine and that can go on for days and days
Ottenberg: Could you explain the “public-private paradox?”
Jerolmack: Sure. What’s in our constitution, life, liberty and happiness was a slight variant on what Thomas Jefferson originally wanted it to be, which was life, liberty and property, but property is still sacrosanct and is one of the great protections afforded in our constitution. We maximize the protections of individual rights in this country. Legally you have the entitlement to love who you want to love, worship where you want to worship, believe what you want to believe – the whole premise of that is that those are private decisions. They’re private because me loving who I want to love doesn’t stop you loving who you want to love. So that’s why it’s protected as a private right that ought not be regulated by the government. Even the idea of what’s called hate speech is a gray area. It’s protected under free speech because it doesn’t inhibit YOU from also having free speech that might result in hate against me. Utilizing my free speech to denigrate other people does not stop them from also utilizing their free speech.
It’s the same with private property rights. The idea there is that it’s your land so you ought to be able to do what you want, but there’s an assumption that those are private decisions separate from the public sphere. But things that we do that impact the public sphere OUGHT to be regulated. Even if somebody robs me, I don’t have the right to exact vigilante justice and go beat up that person, because I’m actually infringing on their individual sovereignty and right to due process. I’m expected to go to the law and then the law would intervene to try to restore the situation. What I refer to as the public-private paradox refers to things that we do that are protected as individual rights because they are seen as private but they actually produce consequences that impact the public good.
The core example which comes out of my research on fracking is land-use decisions around fracking. So I have the right to lease my land, I don’t have to ask my neighbor’s permission, but it necessarily creates spillover effects that impact my neighbors with light and noise pollution, potential destruction of roads, potential of their own property. So if we think about this in political rights terms, it actually infringes on my neighbor’s rights to liberty and property, because it infringes on their ability to enjoy their property and sometimes even their health – the life part of the life, liberty and property. Lots of environmental decisions fit into this public-private paradox. Buying an SUV that gets 12 miles per gallon – such things are protected as individual choice, as a private decision, and therefore ought not be restricted. But all of those decisions, including eating meat, one of the primary drivers of carbon emissions, actually impact other people’s ability to do those same things. Our energy consumption and production of waste is leading to pollution in the oceans and other places, contributing to global warming and sea level rise, which forces some people to leave their homes, to not be able to sustain a farming livelihood because of droughts – then actually those seemingly private decisions, when aggregated together, infringe on other people’s life liberty and property. Live and let live becomes an oxymoron, because me living the way I want to live infringes on other people living the way they want to live. We don’t see that because climate refugees might be far away in other places like Bangladesh, they might be future generations, but our decisions infringe on other people’s rights to scarce resources, to be able to enjoy their own health and well-being. That’s the public-private paradox – that seemingly private decisions are actually public decisions, and I argue they should be regulated as public decisions.
Ottenberg: What you’re getting at here are the externalities of capitalism.
Jerolmack: Yes, absolutely.
Ottenberg: Can a capitalist system be made to pay for its externalities? That has proved, over several hundred years, to be very difficult. Companies don’t want to pay for their pollution, their externalities, and it’s similar on a smaller scale to what’s happening with these individual landowners, who say I can do whatever I want with my land, but now there are 1200 trucks barreling down the road, bothering my neighbors, but that’s not my problem. So your public-private paradox meshes with the broader problem of what do we do about capitalist externalities? What is the attitude in fracking country?
Jerolmack: When something goes wrong, their view is – a lawsuit. Not regulation. They’re very against regulation. And even though support for fracking has plummeted since 2012 in rural Pennsylvania, people who lease land for drilling, when something goes wrong, their solution is a lawsuit. A lot of them don’t trust government and don’t want greater restrictions on private land-use. So there might always be a distrust of environmentalists, even if they aren’t viewed as outsiders, city people, because there’s a core disagreement about what we do about environmental problems.
Ottenberg: You mention Dick Cheney and the Energy Policy Act of 2005, and how he greased the wheels for fracking by stripping the EPA of jurisdiction. Could you explain?
Jerolmack: Cheney was ceo of Halliburton, one of the largest oilfield service companies in the world, before he became vice president, which happened about five years before the fracking boom. So he knew fracking was on the horizon. He basically slipped through the Energy Policy Act, something called the Halliburton loophole, which says oil and gas water was exempt from the Clean Water Act. That act would be the natural way to regulate this industry, because when you drill for oil and gas this deep, you drill through the water table, through ground water, through aquifers. You also require a lot of water. To frack one well one time requires millions of gallons of water. Then you have to do something with that waste water, when it comes back out. So they create deep underground sites to dump waste water – this is what’s associated with fracking earthquakes, these injection wells. The EPA would have been the primary way to regulate this, but with the Halliburton loophole, regulating fracking devolved to the states.
Ottenberg: You talk about extractivism, communities that specialize in one resource at the expense of more stable development. You mention the collapse of the cod fisheries in the 1990s. What are other examples?
Jerolmack: Williamsport itself, which my book is about, first became famous in the late 1800s, when it was called the lumber capital of the world. For 30 years the entire town organized itself around lumber. Or course they used it all, and almost overnight the lumber industry crashed, and Williamsport ceased being an economic engine. More recently there’s coal extraction in West Virginia. People talk about this idea of a resource curse, particularly in African countries, which may be rich in diamonds, or gold or oil, and multinational corporations constructed industries solely around that one resource, for decades, but those resources leave those countries and little wealth remains. With fracking, even in the years in Pennsylvania when there were the most new gas wells drilled, unemployment numbers did not go down, even though they did in 43 other states. A lot of the jobs were temporary and they were relocations. They were people already working in the oil and gas industry from Texas and Oklahoma that migrated to Pennsylvania and then left. The crash in gas prices even took some old businesses with it.
Ottenberg: You write that fracking promised “the seemingly inevitability of rust-belt decline.” Did it do that?
Jerolmack: No. For a moment in time it did for some people. But only very temporarily. A lot of people got huge royalty checks in the first few months, then they dipped. The production of gas wells drops a heck of a lot after the first year. Fracking did not stop the basic indicators of rural decline – heightened unemployment and people moving out.
Ottenberg: About enclosure, in your book you observe that a lot of these fracking companies that set up wells or pads on public land, then illegally refuse to allow locals or tourists or hikers to go on that land. How common is this?
Jerolmack: I can only speak from personal experience. In eight months of going into state forests at least three or four days a week, it was very common. Almost every time I went through a public forest, guards would have a chain across a public access road, and the gray area is that they are allowed to limit access for safety reasons, for a short period of time, like if there’s a truck caravan. So that’s why those chains exist. I routinely found guards who told me I wasn’t allowed to go somewhere, and not explain why, even for areas where there was not active drilling going on. This happened to me even when I was with the district forester, the person who worked for the state department of conservation and natural resources, who managed that forest. A guard told us this was XPO’s – an Exxon subsidiary’s – property. Of course it’s not their property. They are leasing a portion of it for drilling. And the portion we were on was not where the well-pad was. But what she didn’t like and what the gas companies routinely do is they police anyone who gets near them, they don’t want any photographs of these installations, even though it’s legal to photograph – presumably because people might see something illegal, some kind of violation. One person, George, who I wrote about, walked across the well-pad in his back yard, and got a notice that he would be arrested if he did it again. From the gas company’s perspective, for the period that they are using that well-pad, it is theirs.
Ottenberg: You explain the link between John Locke’s philosophy and enclosure and the common law maxim about property extending above to heaven and below to hell, and you question the moral footing on which the natural right of private property exists and the Jeffersonian idea that land sovereignty secures self-government. This also implies the tragedy of the commons. We were just discussing enclosure, and that’s part of this.
Jerolmack: Locke matters because British common law, which America inherited, is very influenced by John Locke. He asked what’s the basis by which private property is justifiable, by which a person can carve off a portion of land and say this is mine? He argued that if you infuse land with your own labor and make it productive, it becomes rightfully yours. For Locke, wilderness does not have value in and of itself. So it’s your labor that makes it valuable, so you are entitled to enjoy the benefits of what makes it valuable. That becomes the basis of private property ownership. This led to the idea after the American revolution that property ownership was the basis of sovereignty. They feared a central government that would control people and limit their freedom. Property was seen as central to counter this. This was the logic of homesteading. And Jefferson had this fantasy that every American family would own their own plot of land and be more or less self-sufficient and not need to rely on other people, let alone the government for the provision of basic sustenance. And every individual would have the liberty to protect that land, if need be with weapons, and that’s how individuals would secure their freedom. But the Lockean proviso recognizes that if my enjoying property rights makes it impossible for you to enjoy property rights then there needs to be a limit put on it. Fracking routinely violates this Lockean proviso. So private property rights impinge on other people’s property and liberty and thus undermine democracy, the aspect that “I have the ability to have a say in something that affects me.” Fracking violates that.
Ottenberg: Discuss the Pennsylvania department of environmental protection’s argument that “there is no constitutional right to local self-government” regarding fracking. That seems like a pretty extreme position. How did that happen in Pennsylvania?
Jerolmack: I wish that it was an extreme position, because almost every major oil and gas producing state in America, Texas, Colorado, Oklahoma has the same provision. Conservative legislatures – ironically, considering that conservatives pitch themselves as supporting local empowerment, communities making decisions for themselves, and who are against one-size fits all regulation from the states let alone from the federal government – but it is almost exclusively Republican legislatures and Republican governors who when they saw the potential of oil and gas, and wanted to champion it, they realized that if every individual municipality could control fracking through zoning, that would really inhibit oil and gas drilling, if every time firms went to a different county or town there would be different regulations. So all these states passed rules that preempted, meaning took away, local municipalities ability to control fracking or regulate fracking through zoning. In Pennsylvania this is where Act 13 comes in, passed by the Republican legislature in 2012, its main provision was that all regulations regarding fracking were set by the state and the state only. How far a well can be from a residence, whether waste water is regulated, all that is set by the state. The Pennsylvania supreme court threw out that provision of Act 13 saying it was unconstitutional. But it’s still in use.
Ottenberg: To get to your conclusion that “America’s privileging of individual sovereignty and property rights sanctions usurping the commons, frays the fabric of communities, and undermines the social contract.” I guess fracking is your example of how this happens. What can be done about this?
Jerolmack: I don’t think there’s a silver bullet. We need to bring in the externalities that result from pollution and exploitation of limited public goods. If you think about land-leasing or a lot of other decisions like driving an SUV or eating a lot of meat, which are very carbon-intensive, for now we ignore the externalities associated with that. We treat them as if they were free speech: me doing it doesn’t impact your ability to do the same, so therefore there’s no regulation of it. We need to incorporate the externalities, and there are different, more harmful and concrete externalities for a lot of these seemingly private environment and energy decisions than there are for free speech. Some ways of doing this are more within the capitalist system, like a carbon tax, where you don’t actually stop pollution, but you make people pay more for it. That can be a small piece of the puzzle. I don’t think it’s enough. We need to put limits on use. Mineral rights should not be treated the same way as free speech rights. I think there should be limits on mineral rights, to the extent that they contribute immediately to neighbors losing their land sovereignty and their ability to enjoy their land and their planetary consequences. To prevent catastrophic global warming, we need to leave these fossil fuels in the ground. We need to mandate 100 percent renewable energy by some year. And then it just has to go that way. We need to overturn this war on local democracy that, ironically, is being spearheaded by Republican, conservative legislatures and governors. If you look at the communities in Pennsylvania, Colorado and Texas that are trying to implement regulations on fracking at the local level and are getting sued by their own state, most of them are conservative municipalities. Even in conservative areas, locals are upset that they don’t have the ability to control land use locally and in every case I know of where a municipality, even a very conservative one, is attempting to put into law their own regulations around fracking, they want more regulations than their state has, not less.