With a 103-36 vote in the House of Representatives, Vermont on Friday became the first state to ban hydraulic fracturing to extract oil or natural gas. The bill passed the Senate earlier this week.
The House debate was short. Heidi Scheuermann, R-Stowe, raised concerns that Vermont was banning the practice without knowing what natural gas resources it was giving up. “We have no idea if some farmers in Franklin County might be able to take advantage of an economic opportunity on their property,” she said in floor debate. Scheuermann urged the House to vote for a moratorium, which would sunset after a number of years.
David Deen, D-Westminster, argued that there was a small “semantic difference” between a ban and a moratorium, since no legislature can bind a future legislature. “If we put a ban in place at this time, by this time next year, that ban could either be a moratorium or lifted.”
Rep. Anne Donahue, R-Northfield, raised different questions. If Vermont is the first state to pass a fracking ban, she wanted to know about the possibility of the state being sued to overturn the law. She asked about grounds for challenging the bill’s constitutionality, either under the Interstate Commerce Clause or the Supremacy Clause.
Jim McCullough, D-Williston, answered that the Committee on Fish, Wildlife and Water Resources had taken extensive testimony in recent days on those questions and been assured that there were no problems. McCullough read from a positive opinion from the Attorney General’s office, and he also said, “The matter comes down to whether you are treating in-state or out-of-state interests differently, and specifically the language treats in- and out-of-state interests the same. So we do not believe there is a commerce clause concern.”
For Paul Burns, executive director of the Vermont Public Interest Research Group, being first in the nation was a point of pride. “I’m very proud that Vermont will become the first state to ban fracking for natural gas,” he said. “I think it’s a great thing for the protection of Vermont’s critical natural resources, our air, land, water, and to protect public health. And it also sends a very strong message to folks in many other states who are taking on the gas and oil industry.”
Burns said that by Friday afternoon, hours after the bill had passed, others in the country were looking to learn from Vermont. “I’ve already gotten a couple of calls from folks in New York who are very excited to see that we’ve taken this step today. They’re going to be trying to follow in our footsteps, and we think that would be very smart.”
While state geologist Larry Becker says oil deposits could not have survived the heat and pressure in Vermont’s geologic history, there’s reason to believe that natural gas may be sequestered in Utica shale deposits thousands of feet below the surface in the northwest part of the state.
Hydraulic fracturing, or fracking, extracts natural gas or oil from deep in the ground by underground explosions and injections of water, sand and chemicals under high pressure into dense rock formations such as shale. Fracking has taken off in recent years, as the industry has developed the capacity to drill at depth horizontally for thousands of feet. As a result, natural gas supplies in the U.S. have boomed and the price is at a 10-year low, down 80 percent from a peak in June 2008.
Environmentalists argue that the market price for gas doesn’t tell the whole story. “Fracking has caused enormous problems with underground water contamination and aboveground waste disposal – entire streams have been destroyed,” said Ripton-based author and environmentalist Bill McKibben.
Congress has exempted hydraulic fracturing from regulation under the Clean Water Act or the Safe Drinking Water Act. In Vermont, however, fracking might not be allowed under the state’s underground injection control rule, according to Chris Recchia, deputy secretary of the Agency of Natural Resources.
For Jordan Gonda, a legislative intern and lobbyist for Vermont Natural Resources Council, the passage of the bill represented a personal victory as well as a political victory. She comes from Pennsylvania, where she says “hydraulic fracturing has been going on for almost a decade now. It’s really been dividing up the communities there and has been a controversial energy practice.”
The American Petroleum Institute is represented in the Legislature by Joe Choquette, a lobbyist at Downs Rachlin Martin. Choquette wanted to see Vermont gather more information before deciding on fracking. “Let the EPA complete its studies. Let the EPA, the Department of Interior, the Department of Energy complete its work and allow time for the regulatory regime to be developed in New York and Quebec. Rather than that, they chose to outright ban it. I don’t think we’ll ever know whether we have a viable natural gas resource here or not.”
Choquette sees a huge difference between a ban and a moratorium that sunsets — he does not believe a ban will ever be rescinded. “I think the politics in this building are such that it’s terribly difficult for anyone who makes a reasoned argument in favor of an industrial process to win. I don’t think it will ever be overturned.”
Gonda characterizes the Legislature as having acted on the precautionary principle. The precautionary principle states that if an action or policy is suspected of causing harm to the public or to the environment, and there is no scientific consensus whether the action or policy is harmful, the burden of proof that it is not harmful falls on those promoting the action. “I’m proud and personally glad that the Legislature has decided to take the precautionary principle into consideration in making its decision.”