LII donor Margaret Felts on fracking and free law

When did you first become interested the law?

As an expert witness since 1983, I have spent many hours with client attorneys working through laws and regulations to understand how they apply to certain industry situations. As time passed, I became interested in knowing more about the laws and how they came to be.

Where did you go to college and what did you study there? Degrees?

I have a BA in Organizational Communications from Eckerd College, a BS in Petroleum Engineering from Louisiana Tech University, a Masters in Energy/Environmental Engineering from LaSalle Universtiy, a JD from Pacific McGeorge School of Law (UOP), specializing in international law and with an emphasis in banking.

Tell us about your work experience. What led you to where you are now?

I began my career as a process engineer at the Amoco Refinery in Yorktown, VA. Following my military husband to the Midwest, I continued to be a process engineer at Celanese Plastics & Specialties in Vernon TX, where we made guar powder, the primary constituent used in fracking fluid. We moved out to California a couple of years later when I accepted an engineering position in the Fuels Office at the California Energy Commission. From there, I moved into consulting and began to work as an expert witness on utility gas cases–which continues to this day–and broadened to other types of cases, including a 5 year case that involved research of water laws and regulations since 1890. From 1985 to 1995, I spent a good deal of time working on environmental issues related to ground water and hazardous waste, including stints with the Department of Defense and the California Department of Toxic Substances Control (Site Mitigation). These combined experiences led to a solid understanding of the long term effects of the production of oil & gas on the environment.

In your current position, describe what you do and how you use the LII?

As an expert witness and technical consultant on complex litigation cases, I use LII to research the law and regulations so I can work intelligently with my clients.

What parts of the LII do you use the most?

Lately, I have been working on the case involving the PG&E gas pipeline explosion in San Bruno, CA, requiring a detailed understanding of applicable regulations under 49 CFR Part 192. LII has been a life saver. LII’s embedded links to referred sections make it really easy to follow these complex regulations.

Are there features of the LII site that you find superior to other resources of the same information?

The “free” feature is the best. As a sole proprietor, I can’t afford an expensive legal resource. Electronic access and excellent search features are important to me because they allow me to work from my office and to be efficient in my research.

You recently made a gift to support the LII’s work. Can you tell us why you gave so generously?

LII makes me look good as a consultant. I can do my research and be informed before meetings. I can answer my client’s questions quickly, without leaving the office. I can bookmark pages, making them readily available during a conference call. All of these services improve my image and lead to more consulting work, which adds to my bottom line. Since LII is my resource, I pay through donations.

If you by chance encountered another LII user at a meeting or event, what would you say to convince that user to become a financial supporter?

Try LII and compare it to the other services. If you end up going back to LII frequently, and especially if you drop a subscription to another service, send LII money so they can keep providing this outstanding service.

Can you say a few words about the importance of making the law available and accessible to everyone, without cost?

This is the most important aspect of LII – everyone can access recent versions of the law. Most individuals have very specific needs that don’t rise to the level of finding an attorney, going to a law library or subscribing to a legal information service. These people can do a simple search on the internet at LII and will probably find enough information to get them started. Small businesses who must comply with specific regulations can look up the regulations on LII using the cites provided by their regulator, saving them the enormous expense of purchasing regulations that will quickly become outdated.

Making the law available and accessible to everyone without cost brings the current law to the people affected by the law. That makes sense.

As you know, New York’s highest court recently upheld local zoning laws banning hydraulic fracturing (fracking) in two towns not far from us here at Cornell. In New York, the issue was whether the state’s comprehensive law governing the oil and gas industry preempted the municipalities’ zoning authority, and the court ruled that it did not. Other than zoning laws, are there other legal options communities have used or might use to challenge local fracking activity?

The National Environmental Protection Act (NEPA), or the State equivalent (for instance, California Environmental Quality Act – CEQA) is the place to begin. These laws and regulations apply to any activity that must be authorized by the government. Generally, if the entity has to obtain a permit, NEPA can be used. Under this set of laws, pretty much anything can be challenged – noise, traffic, water use, contamination, air emissions, etc. Individuals and/or community organizations can use these laws and regulations to slow the progress of fracking activities – but, ultimately may not stop them as the remedy is mitigation. So, if the fracking company can eventually show that it can mitigate all of the problems by changing its procedures, it may get a permit and go forward with the fracking. Sometimes, the projected cost of fighting through a NEPA challenge rises to a level that causes the fracking company to abandon the project, but that outcome is not something one would count on.

While delaying the fracking activity through NEPA, a community can take immediate steps to develop and implement appropriate zoning laws, as we see in the New York cases. Other legal options might include trespass, injunction to prevent drinking water contamination (includes hazardous waste discharge), injunction to stop noise, traffic, etc. Of course, once damages occur, one can sue for specific damages.

Finally, researching (on LII) the history of exemptions for the oil & gas industry may reveal an underlying intent to provide energy supply security by encouraging exploration and development. Recently, some fracking companies have been arguing that they should be allowed to export product, including build LNG facilities to export excess natural gas. Clearly, if they are over-producing to the point of needing to export, the intent to provide energy security has been met and one might argue that the exemptions no longer apply.

What legal arguments are available to the fracking industry that might allow them to proceed in areas where the local population might not be welcoming to their presence?

The industry should have a good understanding of all the applicable exemptions in federal, state and local laws. Over the years, they have successfully planted these exemptions, mostly in the name of energy supply security. When challenged under NEPA, think mitigation. Knowledge of, and compliance with environmental regulations from the start to the end of a fracking job is ultimately a good defense.

Can you leave us with a the bottom-line takeaway for our readers who want to understand the legal framework of the fracking debate?

In every state, there will be a conflict between agencies that were created to implement energy policies (Energy Commission, Dept of Oil & Gas, Dept of Conservation, etc.) and those created to oversee the environment (Environmental cleanup, toxic substance management, air quality districts, water quality boards, etc.) Anyone challenging fracking operations should figure out how all of these pieces fit together, what the priorities are and how the combined set of rules are applied. Unfortunately, the picture varies from one state to another.