Environmental Law 101: Is Consensus Fracking Possible?

Litigation is a highly inefficient and uncertain way to resolve disputes, including those involving environmental issues. It takes years for a business to litigate its way to a permit. Further, major projects involve multiple permits from federal, state and local agencies; perhaps also from Native American communities. In reality, litigation is an option, not a solution.

Some opponents of environmental projects are local activists representing themselves and who want changes/improvements in a project; others are advocates who will be opposed to a project under any circumstances; yet others are professional advocates who are able to litigate blow-by-blow with you or, alternatively, are able to negotiate with you—if you are open to that alternative. Can the consensus process be used to resolve the most explosive, divisive environmental issue of the moment—hydrofracturing (a/k/a “fracking”) of rock formations for the purpose of releasing and recovering petroleum and natural gas? Recent events suggest that the answer is “yes.”

I’ve negotiated more than 30 state laws with state agencies, local governments, state legislators, local activists, environmental groups and Native American communities. The consensus process involves a blend of personalities, political ideology, economic philosophy and necessity. I know that the process works. I also know how difficult it is. With that as background, I noted recently that several large oil companies (Shell and Chevron) have negotiated with several environmental groups (including the Environmental Defense Fund) a process by which best management practices, as judged by an independent review, will be used for fracking in a tri-state area (Ohio, West Virginia and Pennsylvania).

An outcome like this requires farsightedness on the part of both the corporations and environmental groups involved—as well as courage. I know this because it happened to me.

Years ago, I hosted a visit from a law school friend who had, after law school, gone to the Attorney General’s Office where he developed a well-deserved reputation as a criminal prosecutor and, later, as the Assistant Attorney General responsible for representing the “public interest” in Wisconsin’s natural resources. I hadn’t seen him since graduation, but I was aware of his career and professional reputation. After exchanging pleasantries, I asked him about the purpose of his visit. He said: “I want to discuss the negotiations we are going to have.” [I represented a mining company which was a subsidiary of a large oil company; and, also, the state business trade association. No negotiations existed at the time. He had taken a public position that, unless the state adopted mining reclamation rules, he would sue to block any mining project; and, in fact, had already done so. He was looking for someone with whom to negotiate.] With my client’s buy-in, we spent the next five years negotiation an omnibus mining law and set of rules (as well as a tax reduction on mining operations) with a variety of state environmental groups, Native American communities, local governments, local activists and multiple state agencies. [No time was lost on the project because the permit application and an Environmental Impact Statement were being contemporaneously prepared.] Dozens of negotiations were held; the media was invited to attend in order to provide transparency; and legislative leaders were kept abreast of developments. The consensus process was successful (I will write about the process at greater length in subsequent posts) and produced a permitting process that allowed mining to occur through a streamlined process with augmented public participation rights.

The fracking agreement involves a complex set of issues involving the emission of methane, the flaring of unwanted gases, reductions of engine emissions, improved well design, enhanced wastewater disposal, the use of less toxic fracking fluids, seismic monitoring and augmented groundwater protection practices. What was the motivation from the environmental side? Reportedly, according to one news article: “They (environmental interests) came to the conclusion that the hundreds of billions of dollars in oil and gas underground is going to be extracted one way or another and working with industry is the quickest path to making the process safer.” A national group that is funding anti-fracking efforts added: “We recognize that this resource is going to be developed. We think that it can be done in a way that does not do violence to the environment.” Both Chevron and Shell announced that they are going to submit their practices for independent review and certification. They now have a better idea of what is expected of them. That’s the “certainty” issue that is so important to business. Was the negotiation easier, more certain and cheaper than litigation? You bet. And undoubtedly better for the environment. I congratulate the participates to the process.

This process is a classic example of defining the needs of both parties, outreaching to the adversary, focusing on outcome and ignoring politics and ideology. It can be done; and it is in your self-interest to see if this process can apply to you.