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Thursday April 17th 2014

Everything That’s Happened Since Supreme Court Ruled on Voting Rights Act

Republished by permission from Propublica. Everything That’s Happened Since Supreme Court Ruled on Voting Rights Act

by Kara Brandeisky and Mike Tigas
ProPublica, Nov. 1, 2013, 12:24 p.m

Last year, we wrote extensively about photo ID laws and the Supreme Court’s decision to strike a key section of the Voting Rights Act of 1965. Now, with gubernatorial elections in New Jersey and Virginia, and the debt ceiling and healthcare debates already shaping the 2014 midterms, we’re revisiting voting policies to see which states have enacted tougher restrictions since the Supreme Court ruling in June.

Remind me 2013 what is Section 5 of the Voting Rights Act?

Under the Voting Rights Act, states and localities with a history of racial discrimination needed to get permission from the federal government to enact any changes to their voting laws, in a process called “preclearance.” As of June 2013, nine states, mostly in the South 2013 Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia 2013 needed to get any new voting laws pre-approved. Some counties and townships in California, Florida, New York, North Carolina, South Dakota and Michigan were also subject to preclearance.

Section 5 first applied to states that imposed literacy tests or other unfair devices, and had low voter registration or turnout. Congress later expanded the law to add jurisdictions with sizable minority populations and English-only election materials.

States and localities could “bailout,” or get off the preclearance list, after 10 years of elections without any problems. Several smaller jurisdictions bailed out over the years, including parts of Connecticut, Idaho, Maine, Massachusetts, Wyoming, Hawaii, and Colorado.

Of course, some of the biggest voting law battles of the 2012 election were in states not covered by Section 5 at all, such as Pennsylvania and Ohio.

What did the Supreme Court strike down in Shelby County v. Holder?

The Supreme Court decided, 5-4, that the preclearance formula was unconstitutional under the 10th  Amendment, which gives states the power to regulate elections. The Court ruled that the coverage formula was “based on 40-year-old facts having no logical relation to the present day.”

From the decision:

 

One important technical point: the Supreme Court actually left Section 5 of the Voting Rights Act 2013 the part of the law that describes how preclearance works 2013 intact. Instead, the Court struck down Section 4, which explains which states and localities are subject to preclearance. If Congress amends Section 4, the Justice Department can start enforcing Section 5 again.

Why does this matter?

While literacy tests are a thing of the past, voting rights advocates say that statutes that limit early voting and registration, require voters to show photo ID, and purge voter rolls still disproportionately affect poor and minority voters.

The Supreme Court’s June 2013 decision also effectively shifted the burden from states to citizens. Before, a state subject to preclearance had to demonstrate that a new voting law was not discriminatory and let voting law experts in the Justice Department evaluate it before it could be implemented. Now it is up to voters to challenge voting laws by filing lawsuits under Section 2 of the Voting Rights Act, which prohibits racial discrimination.

But most court cases involving Section 2 have been limited to redistricting, not other controversial voting measures, says Yale University law professor Heather Gerken.

“With redistricting, there’s always one very wealthy political party or another who can hire some very good lawyers and go into court and challenge it,” Gerken said. “But a lot of the types of things that were challenged under Section 5 were smaller questions, like, 2018Can you change a polling place? Can you shut down early voting hours in ways that might affect the black community?’ There are things smaller than redistricting that can fall through the cracks.”

What have preclearance states done since the Supreme Court ruling?

a NORTH CAROLINA: Two months after the Supreme Court decision, North Carolina passed a number of measures, including strict new photo ID requirements. The law also eliminates same-day voter registration, shortens the early voting period by seven days, and specifies that ballots cast at the wrong polling station will be thrown out. Some changes will be phased in starting in 2014, and the photo ID provision goes into effect in 2016.

The North Carolina NAACP and a civil rights group called the Advancement Project have filed a lawsuit challenging the changes. The Justice Department also filed a suit of its own. But the suits venture into some new legal territory.

“What North Carolina did was definitely at the extreme of practices in this country,” Gerken said. “So if anything is vulnerable to a suit, it’s likely to be the North Carolina law. But again, the case law was built around redistricting cases. It wasn’t built around this kind of work.”

q TEXAS: Last year, a federal court rejected Texas’ voter ID law, calling it “the most stringent in the country.” The panel also rejected the state’s redistricting maps, finding that they protected white incumbents while altering districts with minority incumbents.

But on the very day of the Supreme Court ruling, Texas Attorney General Greg Abbott said the state would “immediately” enact both measures.

The photo ID law requires voters to present an approved form of photo identification, where before they could present mail, utility bills or other proof of voter registration. The Justice Department had refused to approve the law based on the state’s findings that Hispanic registered voters were far less likely to have the approved photo IDs. The new law also requires the photo ID presented on voting day to match the state’s voter rolls 2014 complicating voting for some married women and others with name changes.

The Justice Department has filed a lawsuit against the newly enacted photo ID requirements and joined an ongoing lawsuit against the disputed redistricting maps.

I FLORIDA: After the Supreme Court ruling, Florida resumed its plans to remove non-citizens from its voter rolls using the federal SAVE (Systematic Alien Verification for Entitlements) database. The Department of Homeland Security database helps government agencies check the immigration statuses of people applying for government benefits like drivers’ licenses, housing assistance, or Medicaid.

But opponents of Florida’s measure say that SAVE data is faulty and not meant for elections, and that using the database to verify voter rolls will disenfranchise eligible voters. (Colorado legislators rejected a bill to purge rolls based on SAVE data for this very reason, but that didn’t stop Secretary of State Scott Gessler from moving ahead with the plan.) The Miami Herald found that Florida voters flagged for verification were disproportionately Hispanic, and most turned out to be citizens. The Department of Justice has also said that SAVE is not meant to be “a comprehensive and definitive listing of U.S. citizens,” especially since it doesn’t include data about people born in the United States.

A nonprofit group has challenged the law, but a federal court dismissed the lawsuit after the Supreme Court ruled that Florida was no longer subject to preclearance. Another group has appealed a similar case to the 11th Circuit.

s VIRGINIA: Virginia passed a number of voting laws this spring that seem likely to go into effect in wake of the Supreme Court ruling.

The Virginia legislature passed a photo ID law last year (which the Justice Department approved), but the more recent measure goes further to limit what kinds of voter identification are acceptable. Voters can no longer show utility bills, bank statements, government checks or paychecks before they vote, but they can get an ID for freeif they don’t already have one.

The new laws also require the Virginia State Board of Elections to remove ineligible voters by comparing state voter rolls with the SAVE database and other states.The Democratic Party of Virginia has sued the state over the interstate crosschecks, contending that the database has erroneous information and the law will disenfranchise poor, elderly and minority voters, but a federal judge rejected the suit for lack of evidence. As of Oct. 17, the Board of Elections had already purged more than 38,000 voters.

n SOUTH CAROLINA: In October 2012, a federal court blocked the implementation of South Carolina’s photo ID law until 2013. The court found that although the law was not discriminatory, there was not enough time to implement changes before the 2012 election. South Carolina Attorney General Alan Wilson said the Supreme Court ruling now allows states to “implement reasonable election reforms, such as voter ID laws similar to South Carolina’s.”

Y MISSISSIPI: Secretary of State Delbert Hosemann said Mississippi will enact a strict photo ID law by 2014. The state says it will provide free transportation to government offices where voters will be able to obtain free photo IDs.

B ALABAMA: Secretary of State Beth Chapman said Alabama would also enact changes to its photo ID law by 2014. Like Virginia, Alabama used to accept other kinds of non-photo identification, such as utility bills and Social Security cards. But the new law requires voters to present photo IDs (the state will also provide free voter IDs to those who don’t have them). Legislators passed the measure in 2011, but Alabama stalled in submitting the law for preclearance.

D ARIZONA: The Supreme Court issued another significant ruling on voting laws this summer: In Arizona et al. v Intertribal Council of Arizona, Inc. et al., the Court ruled that Arizona, formerly a preclearance state, could not unilaterally require voters to show proof of citizenship before registering to vote in a federal election. But the Court said Arizona could sue the Election Assistance Commission to get the federal voter registration form amended to require proof of citizenship. Now, both Arizona and Kansas have sued the commission.

In case their legal challenges are unsuccessful, the states are setting up two-tiered systems of voter registration, requiring proof of citizenship for state and local races but not federal ones. So far, Kansas has suspended registration for about 17,500 voters until those they submit proof of citizenship.

o SOUTH DAKOTA: Four Directions Inc., a Native American voting rights group, has asked the Justice Department to investigate why Secretary of State Jason Grant has so far refused to use federal money to fund satellite voting centers for registration and early voting on some Native American reservations.

What about non-preclearance states?

The 35 states that were not subject to any kind of preclearance were unaffected by the Supreme Court decision. But several of those states have also moved to tighten voting rules this year.

C ARKANSAS: This spring, Republican legislators overrode the governor’s veto to pass a law requiring voters to show photo IDs. If voters don’t have them, they can cast provisional ballots and return with IDs by the Monday after the election. The state will also provide free IDs to people who do not already have them.

L IOWA: In late March, Iowa implemented an administrative rule allowing Secretary of State Matt Schultz to begin a voter roll purge using the SAVE database. Activists have sued Schultz in an attempt to stop the purge.

O INDIANA: In May, Indiana enacted a law requiring officials to check voter rolls for individuals registered to vote in other states. The advocacy group Project Vote worries that the measure could lead to voter purges.

MONTANA: After Democratic Gov. Steve Bullock vetoed a measure that would have eliminated same-day voter registration, the legislature decided to let the people decide. In 2014, Montana citizens will vote in a referendum on whether to keep same-day registration. Backers of the measure say it will cut down on lines at the polls.

c NEBRASKA: This spring, Nebraska shortened early voting by 10 days. Voters will still be able to vote in the 25 days leading up to an election.

b NORTH DAKOTA: North Dakota is the only state without voter registration. In April, the state strengthened its voter ID law to no longer allow people without photo ID to vote by affidavit.

p TENNESSEE: This spring, Tennessee passed a bill restricting the kinds of IDs that can be used to vote. Previously, voters could show student IDs, out-of-state IDs, library cards, or any other IDs issued by counties or municipalities. Now only photo IDs issued by the state of Tennessee or the federal government are acceptable. The Green Party of Tennessee has sued the state over the law.

So, where does all of this leave the Voting Rights Act?

The Supreme Court left it up to Congress to write new preclearance criteria. In a July hearing, House Republicans showed little interest in rewriting Section 4. But Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., says there’s actually quiet Republican support for the issue. Rep. Jim Sensenbrenner, R-Wis., made headlines when he publicly supported restoring the law.

“There is at least one Republican, and you’ll find out in the future a lot more, that is committing to putting life in this most important civil rights act that got a stab in the back from the Supreme Court,” Sensenbrenner said.

Gerken, the law professor, isn’t optimistic that Congress will come up with a new Section 4 formula. But she said there are other actions Congress could take. For example, she has advocated that Congress adopt an “opt-in” approach and allow civil rights groups to file simple complaints for the Justice Department to investigate. Then the agency could halt the implementation of discriminatory laws as necessary.

Yale law professor Travis Crum has also suggested a “bail-in” measure, by which Congress could instead strengthen Section 3 of the Voting Rights Act, letting courts put states under preclearance if their voting laws violate the 14th or 15th amendments.

As part of the Justice Department’s lawsuits against Texas and North Carolina, the federal agency has asked the courts to put those states back under preclearance.

This post will be kept up-to-date. Has your state or local government restricted voting rights since June 2013? Tweet at me, email me at kara.brandeisky@propublica.org or leave a comment below.

 

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VIDEO: Shutdown Hurts Veterans – Senator Sanders

VIDEO: Shutdown Hurts Veterans – Senator Sanders

Baby boomers’ retirement savings took a hit in the downturn

Baby boomers’ retirement savings took a hit in the downturn. Courtesy of the Economic Policy Institute.

Retirement Savings for the 90th Percentile

A household at the 90th percentile has nearly 100 times more retirement savings than the median household. Courtesy of Economic Policy Institute.

Video: Senator Sanders On Syria

Senator Sanders on Syria – You can view this video also on Senator Sanders web site.

New Study Finds High Levels of Arsenic in Groundwater Near Fracking Sites

Republished by permission: Theodoric Meyer, ProPublica, Aug. 8, 2013, 10:45 a.m.

A recently published study by researchers at the University of Texas at Arlington found elevated levels of arsenic and other heavy metals in groundwater near natural gas fracking sites in Texas’ Barnett Shale.

While the findings are far from conclusive, the study provides further evidence tying fracking to arsenic contamination. An internal Environmental Protection Agency PowerPoint presentation recently obtained by the Los Angeles Times warned that wells near Dimock, Pa., showed elevated levels of arsenic in the groundwater. The EPA also found arsenic in groundwater near fracking sites in Pavillion, Wyo., in 2009 — a study the agency later abandoned.

ProPublica talked with Brian Fontenot, the paper’s lead author, about how his team carried out the study and why it matters. (Fontenot and another author, Laura Hunt, work for the EPA in Dallas, but they conducted the study on their own time in collaboration with several UT Arlington researchers.) Here’s an edited version of our interview:

 

What led you guys to do the study?

We were sort of talking around lunch one day, and came up with the idea of actually going out and testing water in the Barnett Shale. We’d heard all the things that you see in the media, all the sort of really left-wing stuff and right-wing stuff, but there weren’t a whole lot of answers out there in terms of an actual scientific study of water in the Barnett Shale. Our main intent was to bring an unbiased viewpoint here — to just look at the water, see if we could find anything, and report what we found.

 

What kind of previous studies had been done in this vein?

The closest analog that I could find to our type of study are the things that have been done in the Marcellus Shale, with Rob Jackson’s group out at Duke University. Ours is set up very similarly to theirs in that we went out to private landowners’ wells and sampled their water wells and assayed them for various things. We decided to go with a list of chemicals thought to be included in hydraulic fracturing that was actually released in a congressional report. Our plan was to sample everyone’s water that we could, and then go through that list of these potential chemical compounds within the congressional list.

 

How did you do it?

We were able to get a press release put out from UT Arlington that went into the local newspapers that essentially called for volunteers to be participants in the study. For being a participant, you would get free water testing, and we would tell them our results. We were upfront with everyone about, you know, we don’t have a bias, we’re not anti-industry, we’re not pro-industry. We’re just here to finally get some scientific data on this subject. And we had a pretty overwhelming response.

From there we chose folks that we would be able to get to. We had to work on nights and weekends, because we had an agreement with EPA to work on this study outside of work hours. So we spent quite a few weekend days going out to folks who had responded to our call and sampling their water. But that wasn’t quite enough. We also had to get samples from within the Barnett Shale in areas where fracking was not going on, and samples from outside the Barnett Shale where there’s no fracking going on, because we wanted to have those for reference samples. For those samples we went door to door and explained to folks what our study was about.

We have people that were pro-industry that wanted to participate in this study to help out — saying, you know, ‘You’re not going to find anything and I’m going to help you prove it.’ And we also had folks that were determined to find problems. We have the whole gamut of folks represented in our study.  

We would take a water well, and we would go directly to the head, the closest we could get to the actual water source coming out of the ground, and we would purge that well for about 20 minutes. That ensures that you’re getting fresh water from within the aquifer. So we didn’t take anything from the tap, and nothing that had been through any kind of filtration system. This was as close to the actual groundwater as we could get. We took some measurements, and then we took several samples back to UT Arlington for a battery of chemistry analyses. That’s where we went through and looked for the various volatile organic compounds and heavy metals and methanols and alcohols and things like that.

 

What did you find?

We found that there were actually quite a few examples of elevated constituents, such as heavy metals, the main players being arsenic, selenium and strontium. And we found each of those metals at levels that are above EPA’s maximum contaminate limit for drinking water.

These heavy metals do naturally occur in the groundwater in this region. But we have a historical dataset that points to the fact that the levels we found are sort of unusual and not natural. These really high levels differ from what the groundwater used to be like before fracking came in. And when you look at the location of the natural gas wells, you find that any time you have water wells that exceed the maximum contaminate limit for any of these heavy metals, they are within about three kilometers of a natural gas well. Once you get a private water well that’s not very close to a natural gas well, all of these heavy metals come down. But just because you’re close to a natural gas well does not mean you’re guaranteed to have elevated contaminate levels. We had quite a few samples that were very close to natural gas wells that had no problems with their water at all.

We also found a few samples that had measureable levels of methanol and ethanol, and these are two substances that don’t naturally occur in groundwater. They can actually be created by bacterial interactions underwater, but whenever methanol or ethanol occur in the environment, they’re very fleeting and transient. So for us to be able to actually randomly take a grab sample and detect detectable methanol and ethanol — that implies that there may be a continuous source of this.

 

You found levels of arsenic in areas with fracking that were almost 18 times higher than in areas without fracking or in the historical data. What would happen to someone who drank that water?

Arsenic is a pretty well-known poison. If you experience a lot of long-term exposure to arsenic, you get a lot of different risks, like skin damage, problems with the circulatory system or even an increased risk of cancer. The levels that we found would not be a lethal dose, but they’re certainly levels that you would not want to be exposed to for any extended period of time.

 

What about the other stuff you found?

The heavy metals are a little bit different because they are known to be included in some fracking recipes. But they’re also naturally occurring compounds. We think the problem is that they’re becoming concentrated at levels that aren’t normal as a result of some aspect of natural gas extraction.

It’s not necessarily that we’re saying fracking fluid getting out. We don’t have any evidence of that. But there are many other steps involved, from drilling the hole to getting the water back out. A lot of these can actually cause different scenarios whereby the naturally occurring heavy metals will become concentrated in ways they normally wouldn’t. For example, if you have a private water well that’s not kept up well, you’ll have a scale of rust on the inside. And if someone were to do a lot of drilling nearby, you may find some pressure waves or vibrations that would cause those rust particles to flake out into the water. Arsenic is bound up inside that rust, and that can actually mobilize arsenic that would never be in the water otherwise.

Methanol and ethanol are substances that should not be very easy to find in the groundwater naturally. We definitely know that those are on the list of things that are known to be in hydraulic fracturing fluid. But we were unable to actually sample any hydraulic fracturing fluid, so we can’t make any claims that we have evidence fluids got into the water.

 

Have you talked with the homeowners whose wells you sampled?

We have shown those homeowners the results. I think most of the folks that had high levels of heavy metals were not necessarily surprised.  You hear so much I think maybe they were expecting it to come back with something even more extreme than that. I don’t want to say they were relieved, but I think they all sort of took the news in stride and realized, OK, well, as a private well owner there’s no state or federal agency that provides any kind of oversight or regulation, so it’s incumbent on that well owner to get testing done and get any kind of remediation.

 

Do you think fracking is responsible for what you found?

Well, I can’t say we have a smoking gun. We don’t want the public to take away from this that we have pegged fracking as the cause of these issues. But we have shown that these issues do occur in close relation, geographically, to natural gas extraction. And we have this historical database from pretty much the same exact areas that we sampled that never had these issues until the onset of all the fracking. We have about 16,000 active wells here in the Barnett Shale, and that’s all popped up in about the last decade, so it’s been a pretty dramatic increase.

We noticed that when you’re closer to a well, you’re more likely to have a problem, and that today’s samples have problems, while yesterday’s samples before the fracking showed up did not. So we think that the strongest argument we can say is that this needs more research.

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Due Process Is The Law and Every Citizen’s Right – Even Bob Filner

Every American deserves their day in court. It is called due process.

I do not doubt the 13 women who have made claims of sexual harassment Filnerphotomayoragainst Mayor Bob Filner of San Diego are telling the truth – but due process must be the course of action taken to properly address the seriousness of these charges. While it appears Mr. Filner has flouted the law both before and after being elected as Mayor of San Diego, as a citizen of the United States and resident of the City of San Diego, I would urge my fellow citizens and residents to use the great and powerful laws of our land to seek justice in this case. We must avoid the convenient and the costly road of recall.

Our city council needs to take emergency action to appoint a Mayor pro tem to keep the city running as smoothly as possible while Filner is in mandated therapy and while the legal investigations play out. As angry as many San Diegans are, we need to do the right thing rather than reacting and doing the wrong thing. Due Process Is The Law and Every Citizen’s Right – even Bob Filner.

Medicare for All – Senator Sanders

July 31, 2013, Medicare for All – Senator Sanders

No Warrant, No Problem: How the Government Can Get Your Digital Data

Republished by permission: No Warrant, No Problem: How the Government Can Get Your Digital Data, by Theodoric Meyer and Peter Maass
ProPublica, July 19, 6:15 p.m.

The government isn’t allowed to wiretap American citizens without a warrant from a judge. But there are plenty of legal ways for law enforcement, from the local sheriff to the FBI to the Internal Revenue Service, to snoop on the digital trails you create every day. Authorities can often obtain your emails and texts by going to Google or AT&T with a simple subpoena that doesn’t require showing probable cause of a crime. And recent revelations about classified National Security Agency surveillance programs show that the government is regularly sweeping up data on Americans’ telephone calls and has the capability to access emails, files, online chats and other data — all under secret oversight by a special federal court.

The breadth of and justification for the surveillance are the subjects of ongoing debate in Washington. President Obama and others have defended the programs as necessary to identify terrorists and stop attacks before they happen, but privacy advocates and several U.S. lawmakers have questioned them.

Here’s a look at what the government can get from you and the legal framework behind its power:

Go to: https://www.propublica.org/special/no-warrant-no-problem-how-the-government-can-still-get-your-digital-data/

EPA’s Abandoned Wyoming Fracking Study One Retreat of Many

Republished by permission: EPA’s Abandoned Wyoming Fracking Study One Retreat of Many by Abrahm Lustgarten, ProPublica, July 3, 2013, 11:58 a.m.

When the Environmental Protection Agency abruptly retreated on its multimillion-dollar investigation into water contamination in a central Wyoming natural gas field last month, it shocked environmentalists and energy industry supporters alike.

In 2011, the agency had issued a blockbuster draft report saying that the controversial practice of fracking was to blame for the pollution of an aquifer deep below the town of Pavillion, Wy. 2013 the first time such a claim had been based on a scientific analysis.

The study drew heated criticism over its methodology and awaited a peer review that promised to settle the dispute. Now the EPA will instead hand the study over to the state of Wyoming, whose research will be funded by EnCana, the very drilling company whose wells may have caused the contamination.

Industry advocates say the EPA’s turnabout reflects an overdue recognition that it had over-reached on fracking and that its science was critically flawed.

But environmentalists see an agency that is systematically disengaging from any research that could be perceived as questioning the safety of fracking or oil drilling, even as President Obama lays out a plan to combat climate change that rests heavily on the use of natural gas.

Over the past 15 months, they point out, the EPA has:

·      Closed an investigation into groundwater pollution in Dimock, Pa., saying the level of contamination was below federal safety triggers.

·      Abandoned its claim that a driller in Parker County, Texas, was responsible for methane gas bubbling up in residents’ faucets, even though a geologist hired by the agency confirmed this finding.

·      Sharply revised downward a 2010 estimate showing that leaking gas from wells and pipelines was contributing to climate change, crediting better pollution controls by the drilling industry even as other reports indicate the leaks may be larger than previously thought.

·      Failed to enforce a statutory ban on using diesel fuel in fracking.

“We’re seeing a pattern that is of great concern,” said Amy Mall, a senior policy analyst for the Natural Resources Defense Council in Washington. “They need to make sure that scientific investigations are thorough enough to ensure that the public is getting a full scientific explanation.”

The EPA says that the string of decisions is not related, and the Pavillion matter will be resolved more quickly by state officials. The agency has maintained publicly that it remains committed to an ongoing national study of hydraulic fracturing, which it says will draw the definitive line on fracking’s risks to water.

In private conversations, however, high-ranking agency officials acknowledge that fierce pressure from the drilling industry and its powerful allies on Capitol Hill 2013 as well as financial constraints and a delicate policy balance sought by the White House — is squelching their ability to scrutinize not only the effects of oil and gas drilling, but other environmental protections as well.

Last year, the agency’s budget was sliced 17 percent, to below 1998 levels. Sequestration forced further cuts, making research initiatives like the one in Pavillion harder to fund.

One reflection of the intense political spotlight on the agency: In May, Senate Republicans boycotted a vote on President Obama’s nominee to head the EPA, Gina McCarthy, after asking her to answer more than 1,000 questions on regulatory and policy concerns, including energy. 

The Pavillion study touched a particular nerve for Sen. James Inhofe, R-Okla., the former ranking member of the Senate Environment and Public Works committee.

According to correspondence obtained under the Freedom of Information Act, Inhofe demanded repeated briefings from EPA officials on fracking initiatives and barraged the agency with questions on its expenditures in Pavillion, down to how many dollars it paid a lab to check water samples for a particular contaminant.

He also wrote a letter to the EPA’s top administrator calling a draft report that concluded fracking likely helped pollute Pavillion’s drinking water “unsubstantiated” and pillorying it as part of an “Administration-wide effort to hinder and unnecessarily regulate hydraulic fracturing on the federal level.” He called for the EPA’s inspector general to open an investigation into the agency’s actions related to fracking.

When the EPA announced it would end its research in Pavillion, Inhofe 2013 who’s office did not respond to questions from ProPublica — was quick to applaud.

“EPA thought it had a rock solid case linking groundwater contamination to hydraulic fracturing in Pavillion, WY, but we knew all along that the science was not there,” Inhofe said in a press release issued the day of the announcement.

Others, however, wonder whether a gun-shy EPA is capable of answering the pressing question of whether the nation’s natural gas boom will also bring a wave of environmental harm. 

“The EPA has just put a 2018kick me’ sign on it,” John Hanger, a Democratic candidate for governor in Pennsylvania and the former secretary of the state’s Department of Environmental Protection, wrote on his blog in response to the EPA news about Pavillion. “Its critics from all quarters will now oblige.”

** 

Before fracking became the subject of a high-stakes national debate, federal agencies appeared to be moving aggressively to study whether the drilling technique was connected to mounting complaints of water pollution and health problems near well sites nationwide.

As some states began to strengthen regulations for fracking, the federal government prepared to issue rules for how wells would be fracked on lands it directly controlled.

The EPA also launched prominent scientific studies in Texas, Wyoming and Pennsylvania, stepping into each case after residents voiced concerns that state environmental agencies had not properly examined problems.

The EPA probe in Pavillion began in 2008 with the aim of determining whether the town’s water was safe to drink. The area was first drilled in 1960 and had been the site of extensive natural gas developmentsince the 1990′s. Starting at about the same time, residents had complained of physical ailments and said their drinking water was black and tasted of chemicals.

The EPA conducted four rounds of sampling, first testing the water from more than 40 homes and later drilling two deep wells to test water from layers of earth that chemicals from farming and old oil and gas waste pits were unlikely to reach.

The sampling revealed oil, methane, arsenic, and metals including copper and vanadium 2013 as well as other compounds –in shallow water wells. It also detected a trace of an obscure compound linked to materials used in fracking, called 2-butoxyethanol phosphate (2-BEp).

The deep-well tests showed benzene, at 50 times the level that is considered safe for people, as well as phenols — another dangerous human carcinogen — acetone, toluene, naphthalene and traces of diesel fuel, which seemed to show that man-made pollutants had found their way deep into the cracks of the earth. In all, EPA detected 13 different compounds in the deep aquifer that it said were often used with hydraulic fracturing processes, including 2-Butoxyethanol, a close relation to the 2-BEp found near the surface.[1]

The agency issued a draft report in 2011 stating that while some of the pollution in the shallow water wells was likely the result of seepage from old waste pits nearby, the array of chemicals found in the deep test wells was “the result of direct mixing of hydraulic fracturing fluids with ground water in the Pavillion gas field.”

The report triggered a hailstorm of criticism not only from the drilling industry, but from state oil and gas regulators, who disagreed with the EPA’s interpretation of its data. They raised serious questions about the EPA’s methodology and the materials they used, postulating that contaminants found in deep-well samples could have been put there by the agency itself in the testing process.

In response, the EPA agreed to more testing and repeatedly extended the comment period on its study, delaying the peer review process.

Agency officials insist their data was correct, but the EPA’s decision to withdraw from Pavillion means the peer-review process won’t go forward and the findings in the draft report will never become final.

“We stand by what our data said,” an EPA spokesperson told ProPublica after the June 20 announcement, “but I do think there is a difference between data and conclusions.”

Wyoming officials say they will launch another year-long investigation to reach their own conclusions about Pavillion’s water.

Meanwhile, local residents remain suspended in a strange limbo.

While controversy has swirled around the deep well test results — and critics have hailed the agency’s retreat as an admission that it could not defend its science — the shallow well contamination and waste pits have been all but forgotten.

The Agency for Toxic Substances and Disease Registry, the federal government’s main agency for evaluating health risk from pollution, has advised Pavillion residents not to bathe, cook with, or drink the water flowing from their taps. Some have reported worsening health conditions they suspect are related to the pollution. They are being provided temporary drinking water from the state in large cisterns.

**

The EPA opened its inquiry in Dimock, Pa., after residents provided it with private water tests detecting contaminants and complained that state regulators weren’t doing enough to investigate the cause.

When an elderly woman’s water well exploded on New Year’s morning in 2009, Pennsylvania officials discovered pervasive methane contamination in the well water of 18 homes and linked it to bad casing and cementing in gas company wells. In 2010, they took a series of steps against the drilling company involved, citing it for regulatory violations, barring it from new drilling until it proved its wells would not leak and requiring it to temporarily supply water to affected homes.

But residents said state officials hadn’t investigated whether the drilling was responsible for the chemicals in their water. The EPA stepped in to find out if residents could trust the water to be safe after the drilling company stopped bringing replacement supplies.

Starting in early 2012, federal officials tested water in more than five dozen homes for pollutants, finding hazardous levels of barium, arsenic and magnesium, all compounds that can occur naturally, and minute amounts of other contaminants, including several known to cause cancer.

Still, the concentration of pollutants was not high enough to exceed safe drinking water standards in most of the homes, the EPA found (in five homes, filtering systems were installed to address concerns). Moreover, none of the contaminants 2013 except methane — pointed clearly to drilling. The EPA ended its investigation that July.

Critics pointed to the Dimock investigation as a classic example of the EPA being overly aggressive on fracking and then being proven wrong.

Yet, as in Pavillion, the agency concluded its inquiry without following through on the essential question of whether Dimock residents face an ongoing risk from too much methane, which is not considered unsafe to drink, but can produce fumes that lead to explosions.

The EPA also never addressed whether drilling 2013 and perhaps the pressure of fracking 2013 had contributed to moving methane up through cracks in the earth into their water wells.

As drilling has resumed in Dimock, so have reports of ongoing methane leaks. On June 24, the National Academy of Sciences published a report by Duke University researchers that underscored a link between the methane contamination in water in Dimock and across the Marcellus shale, and the gas wells being drilled deep below.

The gas industry maintains that methane is naturally occurring and, according to a response issued by the industry group Energy In Depth after the release of the Duke research, “there’s still no evidence of hydraulic fracturing fluids migrating from depth to contaminate aquifers.”

**

In opening an inquiry in Parker County, Texas, in late 2010, the EPA examined a question similar to the one it faced in Dimock: Was a driller responsible for methane gas bubbling up in residents’ water wells?

This time, though, tests conducted by a geologist hired by the agency appeared to confirm that the methane in the wells had resulted from drilling, rather than occurring naturally.

“The methane that was coming out of that well 2026 was about as close a match as you are going to find,” said the consultant, Geoffrey Thyne, a geochemist and expert in unconventional oil and gas who has been a member of both the EPA’s Science Advisory Board for hydraulic fracturing, and a National Research Council committee to examine coalbed methane development.

The EPA issued an “imminent and substantial endangerment order” forcing Range Resources, the company it suspected of being responsible, to take immediate action to address the contamination.

But once again, the EPA’s actions ignited an explosive response from the oil and gas industry, and a sharp rebuke from Texas state officials, who insisted that their own data and analysis proved Range had done no harm.

According to the environmental news site Energy Wire, Ed Rendell, the former Governor of Pennsylvania, whose law firm lobbies on behalf of energy companies, also took up Range’s case with then-EPA Administrator Lisa Jackson.

Internal EPA emails used in the EnergyWire report and also obtained by ProPublica discuss Rendell’s meeting with then-EPA Administrator Lisa Jackson, though Range has denied it employed Rendell to argue on its behalf. Neither the EPA nor Rendell responded to a request for comment on the Parker County case.

In March 2012, the EPA dropped its case against Range without explanation. Its administrator in Texas at the time had been assailed for making comments that seemed to show an anti-industry bias. He subsequently lost his job. An Associated Press investigation found that the EPA abandoned its inquiry after Range threatened not to cooperate with the EPA on its other drilling-related research.

Agency critics see a lack of will, rather than a lack of evidence, in the EPA’s approach in Parker County and elsewhere.

“It would be one thing if these were isolated incidents,” said Alan Septoff, communications director for Earthworks, an environmental group opposed to fracking. “But every time the EPA has come up with something damning, somehow, something magically has occurred to have them walk it back.”

**

So where does this leave the EPA’s remaining research into the effects of fracking?

The agency has joined with the Department of Energy, U.S. Geological Survey and the Department of Interior to study the environmental risks of developing unconventional fuels such as shale gas, but those involved in the collaboration say that little has happened.

That leaves the EPA’s highly anticipated national study on hydraulic fracturing.

When the EPA announced it was ending its research in Pavillion, it pointed to this study as a “major research program.”

“The agency will look to the results of this program as the basis for its scientific conclusions and recommendations on hydraulic fracturing,” it said in a statement issued in partnership with Wyoming Gov. Matt Mead.

That national study will concentrate on five case studies in Pennsylvania, Texas, North Dakota and Colorado.

It will not, however, focus on Pavillion or Parker County or Dimock.

Nor will it devote much attention to places like Sublette County, Wy., where state and federal agencies have found both aquifer contamination and that drilling has caused dangerous levels of emissions and ozone pollution.

It will be a long time before the EPA’s national study can inform the debate over fracking. While the agency has promised a draft by late 2014, it warned last month that no one should expect to read the final version before sometime in 2016, the last full year of President Obama’s term.

Follow @AbrahmL


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