West Virginia Senate Bill 508 Would be a Gift to Energy Industry

West Virginia Senate Bill 508 Would be a Gift to Energy Industry

So-called ‘Nuisance’ legislation filed after more than 200 state residents living in fracking fields filed nuisance suits against Antero Resources and others

By Michael M. Barrick

WEST UNION, W.Va. – Here in the heart of the Marcellus Shale fracking fields, more than 200 residents determined to protect their health, land and lifestyle, filed suit against Antero Resources and two other energy companies more than a year ago. Tired of intrusions upon their health, land and even ability to sleep at night, the citizens hope to recover compensation for damages that the gas industry has caused in this region of the state from site development and well pad activity; traffic congestion; water use and contamination; air pollution; waste disposal; public health issues; quality of life issues; and, eminent domain abuse.

More and more, it feels like the residents of this state are viewed by ‘our’ representatives in the same dismissive light as any other animals inhabiting the land; that we have no more rights than the deer or groundhogs do.” – Mary Wildfire, a resident of Roane County, W.Va.

While that litigation is currently scheduled for trial in May if the litigants do not reach an out-of-court settlement, the energy industry’s representatives in the West Virginia State Senate aren’t waiting to see what the courts have to say about the impact of the energy industry upon the state’s residents. West Virginia State Senator Ryan Ferns – along with six co-sponsors – has introduced Senate Bill 508, which would severely curtail the criteria for residents to file a nuisance suit against the energy extraction industry. The bill was sent to the Senate Judiciary committee on Feb. 4, the same day it was introduced in the senate.

As stated at the end of the bill, “The purpose of this bill is to establish the standards applicable to the common law claim for private nuisance. The bill lists elements and establishes requirements including the requirement that physical property damage or bodily injury exist before a person can seek damages for a private nuisance. The bill also prohibits private nuisance claims if the activity at issue is conducted pursuant to and in compliance with a permit, license or other approval by a state or federal agency or other entity. The bill also requires a plaintiff to have either an ownership interest or possessory interest in the property at issue to have standing to bring a private nuisance claim.”

Proponents argue that West Virginia is too litigious of a state and this bill will help create a more suitable business climate.

Residents, especially those exposed to the impacts of fracking the past several years, have a different view. They say that the bill, if passed, would severely limit their rights as landowners and provide the energy extraction industry with far too much protection from liability for the damages it causes to people and communities.

Mary Wildfire, of Roane County, argued, “It seems to me that gas companies enjoy quite enough privilege in this state. They can slap a huge well pad on the land we spent years working to earn the money to buy, and more years working to build a house and farm on. Most of us don’t own the mineral rights and have neither any say in this, nor do we derive any benefit. They can make noise and light and fumes sufficient to drive us from our homes for months; they can permanently damage the water we depend on, and we’re supposed to be satisfied with truckloads of water filling outdoor tanks; we can’t get compensation unless we can prove that our water didn’t have the contaminants before drilling, a prospect which not only costs hundreds or thousands of dollars, but is rendered virtually impossible by the fact that the companies don’t even have to tell us what to test for. If our land happens to lie on the path they’ve chosen for a pipeline, they’re entitled to take as much of it as they like for that. If there are risks due to these massive pipelines, that’s our problem.”

She asked, rhetorically, “Is the convenience and profitability of the gas companies the legislature’s only imperative here – or do we who live here matter at all?” Answering her own question, she continued, “More and more, it feels like the residents of this state are viewed by ‘our’ representatives in the same dismissive light as any other animals inhabiting the land; that we have no more rights than the deer or groundhogs do.”

Nancy Bevins, of Uphsur County, said, “It is clear some of the state legislators want to reduce the cost of extraction by transferring damage done by gas drillers and strip miners to the rural folks living in and near these sacrifice zones. I would guess most legislators can afford to live in an area unaffected by such activity. But not everyone has that option, or the desire, ability and funds to move. Can you imagine working your entire life, settling down in your home to finally retire, only to have your neighbor allow a well pad on the border of your property?  Six hundred feet from your home?”

She added, “Residents of our state deserve protection from outside multimillion dollar corporations. What SB 508 does is to revise the definition of a nuisance suit almost out of existence. This bill favors corporations over middle class and poor West Virginia citizens.”

She concluded with the plea to state lawmakers: “Please vote no on SB 508!”

Tom Bond, a farmer in Lewis County, said, “Obviously, this is an intent to take away precisely what common law nuisance was intended to cover. Under the definition in SB 508, if you don’t have grounds for an ordinary lawsuit, you can’t bring a nuisance suit.” He continued, “There would be no way to redress aesthetic values, or rights established by custom or habit. It places persons taking initiatives for short-term private gain over those with long-time established interests. It also favors those who would violate legal prohibitions against actions that might injure people in the neighborhood or downstream or downwind.  In other words, it advances a ‘cowboy’ attitude in those doing business other than the usual business in an area.”

John Cobb, also of Lewis County, offered, “Among the most basic and fundamental rights we enjoy are property ownership and the ability to be safe, secure and comfortable in our homes. For hundreds of families whose homes are near the Marcellus Shale and other shale drilling activities, compressor stations and the roads to these sites, they can no longer enjoy their homes or their land.  Rather that protect the rights of these families, proposed SB 508 strips them of those rights.”

He continued, “You have the right to do what you want on your own property, so long as it does not interfere with the rights of your neighbors and others in the community to enjoy their property. If your activities affect others, they can hold you accountable under nuisance law for violating their private property rights. Nuisance occurs when activity on one property interferes with the enjoyment and use of your property, but no physical trespass or invasion to your property occurs. ‘Nuisances’ don’t stop at the property line. The law of nuisance recognizes that real injuries exist even when the activities do not cause injury to people or property.”

Bond, who is also a retired chemist, observed that legislation designed to benefit the extraction industry ignores economic realities. He said, “Coal is a walking corpse, producing lots of money for a very few and a few jobs, is on the way down. Its waste condemns it to ‘least desirable’ position among familiar fuels, and, in spite of what little regulation the state forces on it, converts thousands of acres of West Virginia to wasteland each year. At least three major coal companies are bankrupt.”

He added, “Unconventional gas and oil drilling are wobbling like a drunken sailor. At best it is a ‘transition fuel’ to renewable sources of energy, and money has been spent, and continues to be spent, like the sailor did while becoming drunk. People in the discovery and production end of the business enjoy bright hope, but have high cost of production, transportation and liquefaction, and ignore huge supplies near the big markets, Europe and China.

Bond concluded, “It is clear some of the state legislators want to reduce cost of extraction by transferring damage done by frackers and strippers to the rural folks living in and near these sacrifice zones. They can’t conceive of any way to improve life in West Virginia other than knuckling down to coal, oil and gas interests, and this new initiative is about the only advantage they can confer, since laws and enforcement are already so favorable to those interests. “

© Michael M. Barrick, 2016

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SB 508 sponsors and contact information

Ryan Ferns, a Republican from Ohio County, is the bill’s primary sponsor. Information about Ferns and the co-sponsors are listed below.

  • Ryan Ferns, (R), Ohio County, represents Senate District 1, which includes most of the state’s northern panhandle. He is chair of the Health and Human Resources and Labor committees. Email: ryan.ferns@wvsenate.gov
  • Ron Stollings, (D), Boone County, represents Senate District 7, in the southwestern coal fields. He serves on the Health and Human Resources committee. Email: ron.stollings@wvsenate.gov
  • Art Kirkendoll, (D), Logan County, represents Senate District 7 with Stollings. He is on the Energy, Industry and Mining committee. Email: art.kirkendoll@wvsenate.gov
  • Craig Blair, (R), Berkeley County, represents Senate District 15, which includes much of the eastern panhandle. He is Vice-Chair, Energy, Industry and Mining committee. Email: craig@craigblair.com
  • Mitch Carmichael, (R), Jackson County and Majority leader, represents Senate District 4, which includes counties in shale fields of central West Virginia near the Ohio River. Email: Mitch.Carmichael@wvsenate.gov
  • Jeff Mullins, (R), Raleigh County, represents Senate District 9, which includes southern coalfield counties. He, too, sits on the Energy, Industry and Mining committee. Email: jeff.mullins@wvsenate.gov
  • Corey Palumbo, (D), Kanawha County, represents Senate District 17, which includes portions of Kanawha County, which is home to the state capital of Charleston. He is on the Health and Human Resources committee. Email: corey.palumbo@wvsenate.gov

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Why West Virginians call DEP the Department of Everything Permitted

Although fracking permits lead West Virginians to believe they are protected, this is not true.  Due to political maneuvering, exemptions for the worst pollution from the oil and gas industry are entrenched in Federal and State agencies, including the WV Dept. of Environmental Protection. These agencies permit oil and gas waste from drilling and exploration and other field operations to be treated as “non-hazardous.”  It is not.

Spills and leaks from pits, tanks, rigs, chemical storage containers, drums, flow lines, pipelines, mixing vats, trucks and injection wells are routine. Waste from injection wells have even recently been permitted even though they are known to be leaking back to the surface. Yet used fracking fluids in flowback water contain deadly contaminants from the shale, including radium, a known carcinogen associated with bone and lung cancer. Toxic emissions are produced at every step in the fracking process.

Health Effects Related to Fracking

The fluids used to frack just one well contain 60 to 160 tons of chemicals.  Many are known to cause cancer, nerve and brain damage and even organ failure. Chemicals used in fracking have also been linked to gastrointestinal, circulatory, respiratory and developmental disorders. The storage, treatment, and disposal of fracking waste as though it is not hazardous greatly increases your chance of exposure. Yet that’s what the current loopholes permit.

Contact with airborne oil- or gas-waste toxins through inhalation or absorption through the skin may include:

  • Methane and associated hydrocarbon
  • Condensates that contain extremely poisonous volatile organic compounds (VOCs)
  • Benzene – a known human cancer-causing agent
  • Xylene, toluene, ethyl benzene
  • Other probable and possible cancer causing agents

Hydrogen sulfide leaks are also a serious air quality concern resulting from oil and gas development.  Yet in 1997, Carol Browner, former Administrator of the EPA, admitted that hydrogen sulfide was eliminated from the Clean Air Act list of extremely hazardous substances due to powerful oil and gas lobbying.

Because hydrogen sulfide is heavier than air it often settles in low-lying areas where it can accumulate in concentrations that can injure or kill.

Common symptoms affecting those exposed to chronic releases of low levels of hydrogen sulfide include: headache, skin complications, respiratory irritation, respiratory soft tissue damage and degeneration, confusion, impairment of verbal recall, memory loss and prolonged reaction time.

The industry contends that fracking is perfectly safe, even though New York banned it.  In West Virginia, it is legally permitted thanks to loopholes from state environmental laws and sweeping exemptions from federal environmental statutes.  The industry is exempted Federally from the:

*Comprehensive Environmental Response, Compensation, and Liability Act

*Resource Conservation and Recovery Act

*Safe Drinking Water Act

*Clean Water Act

*Clean Air Act

*National Environmental Policy Act

*Toxic Release Inventory under the Emergency Planning and Community Right-to-Know Act

 WV regulations contain loopholes that parallel these exemptions. Together they allow permits to be issued which place the public’s health at great risk.

Currently EQT, the largest natural gas-producing company in the U.S, has filed a restraining order to halt the Fayette County Ordinance banning toxic waste disposal.  claiming that Fayette County has no right to impose a ban.  But, instead of paying to defeat the ordinance, if EQT used that money to persuade the legislature to end these exemptions, the County would not need a ban. 

If fracking is so benign, why do these companies want exemptions?

Barbara Daniels
Environmental Justice Committee
WV Mountain Party

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WV’s Jim Crow Jubilee: An Open Letter

Members of the 82nd West Virginia Legislature,

         In America, there are two large groups of working people remaining to be organized. These are minorities and management. Among conservative capitalists, there is an abject fear of unionization of these groups. American capitalists strive to beat down worker organization, and have forbidden organizing of management by Federal law.

         Compare such attitudes with those in Europe, where such organizations are encouraged.

Senator Karnes and Delegate Overington requested not to receive these emails.
note that Senator Karnes and Delegate Overington requested not to receive these emails.
         There is no coincidence that the most heavy handed treatment of the laboring class began in RECONSTRUCTION following the Civil War. “Separate but Equal,” Jim Crow Laws, Wade Hampton Clauses, are notions with which everyone is familiar. The results in the states of the old Confederacy are telling.
          During the period between 1865 and 1915, the States of the old Confederacy saw a twofold growth of economic wealth. Compare this with the forty fold growth of the rest of the nation. Everyone has heard of “carpetbaggers” and “scalawags,” who preyed upon the RECONSTRUCTED SOUTH.
          In Charles Town, one such person served in Jefferson County as a Captain in a Pennsylvania Regiment. He saw opportunity after the war, and remained. He managed to get himself elected to the WV House of Delegates. As a lawyer, he exploited and cheated widows out of their lands and assets.
          His son, also an attorney, attached himself to the Prosecution Team in the trials of Bill Blizzard and Southern WV Coal Miners. The miners were charged with treason and a host of other crimes against the State of West Virginia. This gentleman loathed organized labor, Bolsheviks, foreigners, persons of color, etc.
          This man had a favorite phrase to describe his feelings toward the tenants and sharecroppers on his farms. That phrase was “KILL A HORSE; BUY ANOTHER. KILL A (N-word); HIRE ANOTHER.”  (This writer heard these words many times from this man’s lips.)
           This man was associated with the leading proponent of the first RIGHT TO WORK movement in Texas in the 1930’s.
            Founded by Vance Muse, the CHRISTIAN AMERICAN ASSOCIATION (CAA) worked actively against the NEW DEAL.  CAA supported programs and laws which were anti-labor, anti-minority, anti-progressive, anti-Catholic and anti-social legislation. Vance Muse was a prominent figure in EXTREME RIGHT of Southern Politics.
           Muse, along with his sister, opposed child labor laws, female suffrage, integration, compulsory education, public health, and all Progressive changes in the Southern political landscape. To Muse, it was absolutely onerous to think of a white union man calling a black union man “BROTHER.”
           Muse was an oil industry lobbyist. He and the CAA were subsidized by southern oil companies and northeastern industrialists.
           Though efforts at passing  RIGHT TO WORK LAWS in Texas and Louisiana eluded Muse and the CAA, he had great success after World War II  in the other states of the old Confederacy as well as the agricultural states of the Great Plains.
            It was in Kansas that Fred Koch, who made his money creating an oil industry for Josef Stalin, spearheaded the passage of RIGHT TO WORK in that state. Fred Koch was a contributor to CAA the father of Charles and David Koch, who need no further  introduction.
           Other prominent Texans who loathed unions and blacks belonging to unions were the HUNT BROTHERS of HLH Inc.
            Since the racist roots of RIGHT TO WORK are now exposed, the legislation is called WORKPLACE FREEDOM. This is similar to putting lipstick on a pig. WORKPLACE FREEDOM, aka RIGHT TO WORK, is intended to create castes and sub castes of minority  American workers. These minorities, and poor whites, are to berelegated to the lesser levels of the social and economic structures.
           By enacting WORKPLACE FREEDOM, this will be the fate of all but the elitist West Virginians.
District 16 Chair for the Executive Committee, WV Mountain Party

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