But a new drilling commission will not be required to take up the recommendations, and lawsuits in state courts could upend all the rules written so far.
By Gabe Rivin
North Carolina’s oil and gas drilling regulators are developing an extensive to-do list for their successors, and they plan to recommend a public health study for areas that could be affected by gas drilling.
The regulators at the N.C. Mining and Energy Commission will also recommend a committee to address potential air pollution issues.
The MEC is assembling these recommendations among its last bits of business before the commission is dismantled. A bill signed last June by Gov. Pat McCrory dissolves the MEC on July 31 and reconstitutes it as two new, separate commissions: the Oil and Gas Commission and the Mining Commission.
But while the MEC’s recommendations echo concerns from researchers and the public, it’s unclear whether they’ll lead to new state policy. According to the MEC’s outgoing chairman, Vik Rao, the forthcoming Oil and Gas Commission will be under no legal obligation to implement the recommendations.
“All we can do is try to pass along institutional knowledge,” said Amy Pickle, the MEC vice chairwoman.
Still, that isn’t stopping MEC members from offering their suggestions.
Among the MEC’s wish list is a study of the public’s health in potential drilling spots. The recommendation, introduced by the MEC’s former chairman, Jim Womack, is intended to address the public’s concerns about drilling’s health effects. It would also give state officials the ability to paint a before-and-after picture of the public’s health in areas with drilling, Womack said.
“We’ve done a magnificent job of baselining water quality, air quality, the natural seismicity of this area,” Womack said. “But what we failed to do, and it’s absolutely essential in my mind, is to do a public health baseline of the area, in the same methodical way that we went about the water, air and seismicity.”
The study, Womack said, should focus on several areas that have concerned environmentalists and the public: drilling’s effects on residents’ endocrine systems, cancer rates, pre- and post-natal health and cardiovascular and respiratory health.
Filling in the gaps
Natural gas drilling has boomed in recent years across the U.S., with the advent of new drilling techniques, such as hydraulic fracturing, or fracking. But health researchers have raised concerns about this rapidly growing industry. Drilling creates several potentially hazardous byproducts, including wastewater and air pollution, and some researchers have called for greater precaution – and a greater understanding of the risks to human health – before these byproducts have the chance to harm human health.
Many North Carolina residents share these concerns. In public hearings last year, residents chastised the MEC, saying that it moved too quickly and gave greater attention to the oil industry than the public’s health.
Environmental groups have been particularly critical of the MEC’s rules, which went into effect in March. The MEC’s outgoing list of recommendations “shows the major weaknesses and holes in the rules as they were passed and enacted,” said Therese Vick, an organizer with the Blue Ridge Environmental Defense League. “I think [the MEC’s] priorities were upside down. They had every ability to look into public health first.”
Vick’s group has worked to influence the MEC’s rules. That work included the filing of a legal petition intended to force the MEC’s hand on air pollution.
The MEC turned down that petition last December. But after the petition revealed gaps in the state’s rules, the MEC’s environment committee decided to study the issue further.
After doing so, the committee found itself uncertain whether drillers could take advantage of a potential legal loophole, allowing them to avoid requirements to control air pollution, according to Pickle, who is a member of the MEC environment committee.
That committee proposed the creation of an Air Quality Committee, which would continue to work on issues related to air pollution. But because the MEC is nearing the end of its term, that proposal will head to the future Oil and Gas Commission.
In addition to the public health study and the air committee, the MEC is planning to recommend that the Oil and Gas Commission develop standards for emergency responders.
Womack, in his written recommendations to the MEC, said that state agencies, including the MEC, “have yet to articulate minimum acceptable standards or recommendations for local emergency management offices to use during oil and gas development.
“County fire marshals and emergency management directors need to have the requisite personnel and equipment, and they need to know the training necessary to be prepared for effective first response to accidents in the drilling areas.”
In an interview, Womack said that the MEC didn’t adopt these standards because it ran out of time. The commission was required by law to finish its rules by January.
Uncertainty in the courts
The MEC’s recommendations could be made moot, however, depending on the outcome of two lawsuits currently in state courts.
In one lawsuit now before the state Supreme Court, Gov. McCrory argues that appointments to the Oil and Gas Commission are unconstitutional. Under the 2014 law that McCrory signed to create the commission, the legislature retained power to appoint six of the nine commission members. McCrory argued that this is an infringement on his power as the state’s governor.
A three-judge panel in a state superior court sided with McCrory in March. No appointments have yet been made to the commission.
Environmentalists decided to enter this legal fight too. In January, the Haw River Assembly sued the MEC, arguing that its members were also appointed unconstitutionally, and that all of its work should be nullified. In May, a superior court partially ruled in their favor, and prohibited the MEC from accepting drilling applications until the state Supreme Court resolves McCrory v. Berger.
It’s unclear how and when the high court will make its decision in this case.
A fond farewell – for now
With Aug. 1 approaching, MEC commissioners have had the opportunity to reflect on their work since 2012.
“I think the rules as currently promulgated are fair,” said Rao, the MEC’s current chairman. “They’re fair to industry, fair to the public and fair to the environment.”
Despite her concerns about the potential loopholes, Pickle said that North Carolina’s air rules, on the whole, are comparable to those in other states. She also said that the U.S. Environmental Protection Agency’s rules, which North Carolina adopts automatically, do a lot to address air pollution.
The EPA’s requirements for pollution-control technology “are absolutely going to reduce VOCs – volatile organic compounds – and gas emissions directly from the well,” she said. “That has huge public health implications.”
But Pickle added that, apart from providing recommendations, the MEC is limited in its ability to influence the Oil and Gas Commission.
Womack said it’s clear what could increase the chances that future state regulators will act on the MEC’s recommendations, including conducting a public health study: Reappoint members of the MEC to the Oil and Gas Commission.
“If you start with a brand-new crop of characters, I seriously doubt you’re going to get anything in that area before activity begins,” he said.