How Can the U.S. Constitutional System Cope When Big Fracking Bucks mean Big Toxin Dumping?

Posted by – August 27, 2014

With New Forms of Toxic Waste from the Fracking Bonanza Piling Up, What Must Be Done?

I really like the PBS documentary mini-series Constitution USA, because it brings forward the constitutional arguments that are so relevant to the problems we face in our country today.  It explores a worthy cross-section of important legal/constitutional debates with the depth that they deserve, and with refreshing honesty/even-handedness.  All the while it stays firmly rooted in our history, frequently referencing the rich backstories of our Constitution, the Bill of Rights, subsequent amendments and laws and the more controversial implementing actions.

The first episode gives an overview of jurisdictional conflicts that are ongoing between states, the federal gov’t and the individual citizens.  Some of the issues covered are the more obvious and well-known legal problems between states and the federales, like medical cannabis: can states trump the federal drug laws and re-legalize it? (cannabis tinctures and the like being legal from your local pharmacy in the past)
The Commerce Clause of Article I of the U.S. Constitution gives the federal Congress power to “regulate commerce between the several states,” and that is the basis for so much of our legal and regulatory system, from drug laws and gun control, to water use regulations for toilets (which I blogged about here).

Air and water pollution, with its effects on multiple states and countries, seems an obvious place for federal intervention to me, and the number of federal regs waived during the past decade—the carte blanche given to mountaintop removal and hydraulic fracturing—should concern all Americans.  In many areas, there ought to be more and better regulation: for example, given ProPublica’s recent reporting, it sounds like Ohio will be dotted with radioactive Superfund sites like a constellation is dotted with stars if the legislature in Columbus doesn’t get serious about regulating the toxic (and sometimes radioactive, including content containing RADIUM) waste that’s unintentionally unearthed as a byproduct of the fracking boom.

Inevitably, the various waste byproducts generated by fracking are dangerous if safety measures aren’t followed [see the facts on the difficulties disposing of fracking wastes].  Not only does the fracking process involve inserting hydraulic fracking fluids®, proprietary mixes of chemicals to facilitate fracturing, some heavily depending on known health hazards like benzene, into the earth, the extraction process also unearths things that should stay earthed, like naturally occurring radioactive materials, richly accumulated over eons, especially so deep in shale.  Radon, uranium, thorium, and especially radium have been confirmed living in the waste “brine” alongside the oil and gas (and the heady mixture of man-made chemicals, benzenes, et al, just injected) pulled from shale deposits, alerting all concerned to the risks associated with fracking wastewater.

gas production from the 400 million year-old, multi-state Marcellus shale formation, mostly from drilling in Pennsylvania and Ohio, is booming!

Reasonable monitoring and responsible handling is sorely needed, but the politicians that control how (and how much) these newer species of toxic wastes will be regulated see the state’s fracking bonanza as win-win-win-win, pumping in new jobs, new income/GDP, new tax revenue, and new troughs of campaign bribetributions to pig out on.

Politicians representing economically depressed post-industrial hell-holes tend to understand actually regulating fracking as putting speed limits on their state’s gravy train, or as outright flipping the railroad switch to turnout that gravy train onto a competing state’s track, so rival states profit more and more quickly. This may startle readers in not-America, but in the U.S., state governments are usually competing with other (especially neighboring) states to attract Big Business, including fracking operations, to start up in their state, often leading to a distressing “race to the bottom,” evidenced by things like the governor of Alabama meeting with German automakers to offer them more state-sponsored bribe money “incentives,” less costly labor, and fewer worker protections than other states where they could put down roots… this “jobs race” is deeply embedded in our political ecosystem. Even the more liberal representatives will likely prefer looking tough on polluters without actually regulating fracking in a meaningful way and risking accusations of “harming the district’s economy.”  Political cowardice and faux populist outrage at the polluters is the norm.

Of course, once you understand what Ohio has been through, “post-industrial” meaning that industry has left, offshored production to China or wherever had won the jobs race that year, joblessness everywhere, cities just “gone,” it’s easy to sympathize with the desire to be as fracking-friendly and job-attract-y as possible.  I think of Chrissie Hynde, singin’ “I went back to Ohio, but my city was gone…” and that was the ’80s. Gone Ohio cities are even gonier now.

Shale gas is the closest thing to a gold rush this country’s seen since the initial oil boom nearly 100 years ago, and desperation for gas drilling jobs makes it really hard, societally, to regulate and enforce with a long-view toward the public health consequences of benzenes, radionuclides, and so on.

In neighboring Pennsylvania, where the economics and politics of fracking are similar, radium was found in rivers where fracking wastes were released, and “internal” studies leaked to the New York Times in 2011 detail the alarming data:

…state records indicate that the radium levels found in Pennsylvania wastewater are much higher than those used in this study. Radium, for example, was found in Pennsylvania at levels over 18 times the number used in the this study. It should be noted, however, that this study did not detail actual cases of increased cancer. Rather, it modeled potential increases in cancer rates as a result of radium-laced drilling waste being discharged into large waterways.
… Asked to review the study, an expert on human health and ecological risk analysis said that it clearly shows that the drilling waste is not sufficiently diluted in some cases. As a result, the radioactivity levels left behind in receiving waters come close to reaching the threshold at which the E.P.A., under federal Superfund rules, requires a cleanup, the risk expert said.

For a look at the leaked documents and the relevant analysis, see Documents: Natural Gas’s Toxic Waste –

The revelations from the leaked studies raise some troubling, difficult questions… one is, if you’re at the radioactivity threshold that triggers the creation of a federal Superfund site, how would you turn part or all of a river into a Superfund site?
What unintended consequences will radium in the water have on freshwater sealife and the humans that depend on these freshwater ecosystems? If it’s a blend of radionuclides, benzenes and other horrors, what effects do these have on lifeforms

a row of dark indigo-and-pink-fish-faced, orangey-throated Hath soldiers, mini-fishtank thingy mounted 'round their mouths to enable breathing in non-aquatic environments

Invasive uber carp become biped super soldiers after too much river radium? (Actually the Hath, a Piscine humanoid species from one of my favorite Doctor Who episodes, “The Doctor’s Daughter“)

when combined/interacting with each other? Godzilla was created from a similar unintended exposure to radiation. Freshwater ecosystems (especially in Ohio and due west) are already devastated by the invasion of nonindigenous uber carp, mentioned in the fourth installment of Constitution USA as well… what happens when you add radioactivity? Carpzilla?

This ProPublica exposé uncovers just how lax Ohio’s been about toxic waste.  Regulation is “muted” to the point they’ve become a top destination for other states to dump radioactive fracking waste.

These tanker trucks have 8 wheels and are colored a bright

Fracking wastewater is collected in special trucks like these in Pennsylvania, and moved elsewhere (Ohio?). Source: NRDC Switchboard Blog

Yes, hydraulic fracturing (“fracking”) has been used to get to oil and gas since the late 1940s. Yes, the radionuclides are originally “naturally occurring radioactive materials” (NORMs), not a problem if left in their natural configuration, spread out, trace amounts. But once you inadvertently pump large amounts of these out of shale, concentrate them, mix them with other terrible things, it becomes something different—TENORMs (technologically enhanced naturally occurring radioactive materials)—something you REALLY don’t want in your water supply.  Refer to the horrible fate of radium’s discoverer Marie Curie if you doubt that radium is hazardous.

To my core questions, things that I’ve brought up again and again in recent bloggings, what, why, are the systems and rules that enable, or fix (or exacerbate) our problems?
Similar to the inaction around the multi-state + Canada invasion of Asian Carp, something I’d previously blogged about here, the constitutional system we have provides ways to deal with the issue, but no one is stepping up and adequately addressing the problem. The multi-jurisdictional nature of our system enables struggle, appropriate checks and balances, collaboration, but also gridlock and EPIC FAIL if the human beings at the helm of the different gov’t branches and agencies are corrupt and/or ineffectual shampoo models.

What must be done about the toxic wastes left behind by the shale gas rush?

One can easily imagine the preserved head of James Madison judging medical cannabis, and indeed all medicines and drugs, the province of the individual citizen and/or “the several states,” as centralized decision-making for the entire country, especially where commerce and a man’s personal habits are concerned, would be perceived as positively British and anathema to the whole constitutional project.
But it is much more difficult to envision the framers’ possible positions on environmental law.  The founders, especially the Virginians, often distained the prospect of an industrialized United States, as debates over which ways of life were best, the most free, the most moral for the developing nation—profit was far from the only objective—were commonly considered as the Constitution took shape, and afterwards.  Cities in general, and wage labor for Big Business industries in particular, were largely seen as part of an unfree, corrupt, dirty system, “a wretched hive of scum and villainy” at odds with the Jeffersonian vision of a society of self-sufficient yeomen farmers, hyper-moral because they’re dependent on no man (except for all the slaves, though this is typically omitted from the sweeping “Empire of Liberty” narratives). The Constitution’s framers couldn’t hammer out a solution for phasing out the slave system that supported (and simultaneously threatened) the kind of economy they wanted—agriculture, shiny independent freeholds—much less did they legislate for socio-economic arrangements they hoped to avoid, factories and mills.

The consequences of large-scale industrialization, air pollution blowing cross-country, water contamination in one state affecting other states downstream, were inconceivable in the late 1700s. Our founding people don’t really offer us any guidance on these issues.
Madison tended to view state governments as unavoidably, intractably corrupt, and that was one of his main arguments for the Constitution and new, more robust federal government: that the people must have watchdogs to guard their rights and liberties against the corrupt excesses and overreaching laws of drunken state legislatures, another crucial check on the tyranny of the majority. But today, few would argue that the federal gov’t is less corrupt, or are better regulators. On the other hand, who else but the feds can deal with water pollution in a river shared by six states?

How can effective regulation and enforcement in the service of long-term public health outcomes be achieved in this time of corruption, deceit and regulatory capture?  How can our constitutional system cope?


this blog post inspired by my fascination with mutants and mutation, by mito activist Andy Williams who I hope keeps giving ’em hell about the toxic waste in Watertown, NY
and brought to you by the Letter F!