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The EPA's Abuse of Power

The government's startlingly aggressive and dishonest campaign against natural gas.

1:43 PM, Aug 17, 2011 • By MARIO LOYOLA
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The Trinity Aquifer and Strawn formation overlap in places, which allows gas and salty water to migrate from the Strawn to the aquifer.  Residential development in the area has decreased the pressure in the aquifer, which causes gas and salt water to be drawn in from the formation underneath, particularly where water wells have drilled through the Trinity and into the Strawn.

Confronted with this information, Blevins backed away from the original order.  He would not affirm that the company had “caused or contributed to” the endangerment; only that the company “may have” done so. 

A complex battery of chemical finger-print testing, focused particularly on nitrogen content, quickly and irrefutably demonstrated that the gas in the Lipsky well was the same as that in the Strawn formation, and different than that in the Barnet Shale.  That explained why area residents had found natural gas in their water wells years before any drilling for natural gas.  Some water wells were even “flared” for days after drilling, to release dangerous levels of methane.  One area subdivision’s water tanks warn “Danger: Flammable Gas.” 

At every step in this fast-moving fiasco, EPA’s legal position shifted: Its original order was based on the factual assertion that Range had caused the contamination; when it couldn’t explain how, it retreated to the position that Range “may have” caused it; and when that possibility was excluded, it retreated to the ultimate redoubt of government authority: arbitrary power.  Now, confronted with incontrovertible evidence that the source of the gas was something else entirely, EPA claims that the law didn’t require to prove or even allege any connection between Range and the contamination.  It is suing Range for millions of dollars for failure to comply fully with its original order. 

Agencies are not required to establish causation prior to issuing an emergency order; due process requires only a speedy determination of the facts.  But was EPA required to make any factual inquiry at all?  Apparently not:  Under Sec. 1431 of the Safe Water Drinking Act, the EPA administrator may “take such actions as he may deem necessary” when he knows of a possible contamination of drinking water, including “issuing such orders as may be necessary to protect the health of persons.”    

The plain meaning of this provision is that EPA can commandeer anybody at random and force him to clean up, at his own expense, a problem that he can immediately prove he’s had nothing to do with.

By now it should be no surprise to learn that the Lipsky well wasn’t even “contaminated” to start with.  The methane measured in Lipsky’s well water, 2.3 parts per million, was well within the typical range for wells in that area, and significantly below the federal endangerment threshold of 10 parts per million. According to the Department of Interior, water wells bearing methane below that threshold pose no endangerment if properly monitored and vented.

There’s more.  When the original order came down, EPA regional administrator Armendariz explained that he had to act fast because “Natural gas could be building up in the homes … There’s a danger of fire or explosion.”  In fact, Mr. Lipsky had disconnected his well from the house months before, and the other residential well mentioned in the order had been configured so that the gas never reached the resident’s house at all.  Armendariz very simply had no idea what he was talking about, and has had none from the start.  

What are the lessons of this crazy story?  First, EPA administrator Armendariz should be fired.  Second, state regulators should have been allowed to deal with the problem from the start.  They know the area, they knew where the gas was coming from, and they knew that Lipsky’s house was not in imminent danger.  EPA regulators, by contrast, don’t know the area, they have no experience with oil and gas operations, and they jumped to all of their conclusions based on uneducated guesses. 

By a deft use of the precautionary principle, environmentalists have learned to make their righteous indignation weigh more than the facts.  It’s madness to give people in that frame of mind such a degree of arbitrary power. 

Mario Loyola is a fellow at the Texas Public Policy Foundation.

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