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Of Aristotle and Anadarko: Why “Better Laws” Will Never be Enough

“Good luck with that!” Ain’t Help

 1.3.12: I was running laps at the Bloomsburg University track when I somehow tripped over my I-pod cord and—in a heroic effort to spare my recently re-habilitated right knee—crashed full force onto my right ankle, ripping every ligament from the bone, wrenching and tearing the muscles half way up my leg, and pulling my ankle bones away from my leg bone. Awesome. And Whoa! Nelly! Ouch!

A gentleman walking the track nearby could not have failed to see me fall—or for that matter hear my ligaments blowing off my ankle bones.

He came over while I was gaining some semblance of comprehension about what had happened, and said “Wow! You better get that looked at.” And then he continued walking.

Several minutes later, still dazed and with an ankle the size of a Nerf Football, I began to lurch my way to the gate and my car. The walking-man came over, handed me my hoodie and keys (this was January), and said “Wow! Good luck with that!” and then he walked away.

I drove myself to the hospital—on my right foot, right leg, right ankle. Tears gushing down my face. Don’t know how I got the car parked. Don’t know how I got to the emergency room door.

But what I do know is that no one reading this is anything less than appalled at walking-man’s behavior. We all think that we would have helped me get my shoe off, hoisted me to a waiting car, and driven me to the hospital—or at least called 911.  And most important, no one would mistake walking-man’s “Good luck with that!” for genuine concern.

Why? Because that is the kind of decency we expect from one another. Because when something really bad is happening right in front of us, we expect ourselves (and others) to do something about it. Because “Good luck with that” ain’t help.

And this, I suggest, offers a fair metaphor for the behavior of the Pennsylvania Department of Conservation and Natural Resources (DCNR) cast as walking man towards the Loyalsock State Forest (me, or my ankle anyways) over DCNR’s decision to concede to Anadarko Petroleum’s bid to frack this gem of a special place.

Imagine: walking man gets a call as he strolls. The voice at the other end says “Walk away, walking man. There’s a cool 12 million, maybe even 22 in it for you. And besides, it was the ground shaking during our seismic testing that made Ms. Loyalsock fall anyways. But we found her sweet spot. Right between her ankle and her leg bones. Tell Ms. Loyalsock you’re really sorry, and that she should get that ankle looked at. Here at Anadarko, we call that “remediation.”  Then walk away.”

Walking man has a twinge of fellow-feeling: “I dunno—maybe I should help Ms. Loyalsock preserve the natural integrity of her ankles and forests and wetlands and Northern Flying Squirrels.”

“No,” says the Anadarko voice on the phone. You must say something positive like “Good luck with that!” to make Ms. Loyalsock believe in your good intentions—that you did everything you could—but we’ve got 26 well pads, a hundred wells, compressors, roads, and pipeline to build, and whether she’s got a trashed ankle…well, frankly, we could give a good fuck. Thanks. Here’s your moola.”

DCNR takes the money, walks away, claims that they really tried to help—handing me my Clarence Moore Lands hoodie and my “Keep it Wild!” key-ring, and then insists that were there “better laws” my fall would have been mitigated, my ankle less trashed. Hell, my foot bones might not have been all but drilled through my ligaments if there’d just been “better laws” to suspend gravity at the moment I needed it most.

So, if we could just get to work on those “gravity suspending better laws,” all of our ankles, and forests and wetlands and Northern Flying Squirrels will be fine, just fine. Or—if not—remediated as well as my ankle: permanently larger than my left and subject to weird twinges. But if you don’t look too close, it still looks more or less like an ankle.

And so might a few spots in the Loyalsock. Photogenic picnic parks called “Rock Run” and “Old Logger’s Path,” cosmetically curtained off from the industrialized extraction going on near-by. The trouble is that, a bit like twinges in my ankle reminding me that “remediation” is just a caricature of “restoration,” the noise, the smell, the dust, the trucks, the lingering ozone, the derricks just over “there,” will remind us that what maybe true in name—Loyalsock State Forest—isn’t true at all, and would be better renamed “Anadarko Industrial Extraction Park, # Whatever.” In fact, my ankle’s in far better shape than what the Loyalsock could be by 2014—at least my ankle functions like an ankle—more or less.

 I “Heart” Anadarko: The DCNR Love Letters

Long Live Gas FEATURED

 In Nichomachean Ethics, the Greek philosopher Aristotle argued that there is no virtue in moderation when “moderation” is exercised against great and obvious evil. In fact, collusion or concession paraded as moderation in the face of evil is, he argued, not merely lacking in virtue—it is manifest depravity. How, then, should we respond to the following facts? It is a fact that at least since early 2010 Anadarko has been negotiating with DCNR to establish the company’s frack-plans and all of its massive infrastructure in the Loyalsock. It is a fact that the question whether it is acceptable to drill in the Loyalsock never comes up in any of this correspondence. It is fact that this moral question about a private corporation’s exploitation of a public trust is pre-empted by legal posturing that places Anadarko firmly in the position of a suitor already assured of his betrothed’s fidelity. It is a fact that DCNR representatives—Secretary Richard Allen, and now Interim Secretary Ellen Ferretti—work tirelessly to make the Loyalsock as frack-friendly to Anadarko as possible (http://www.dcnr.state.pa.us/cs/groups/public/documents/document/dcnr_20027107.pdf). And it is a fact that virtually all of this went on with no public notice, no invitation to public comment, and no public hearings until public outcry forced DCNR to undertake a bit of window-dressing. And that’s all it was or was ever intended to be—window-dressing—until Anadarko can begin the conversion of some of the last contiguous forest in the United States into a frack-gas factory—and DCNR can get paid like the corporate whore of the Corbett administration it is. To be clear, none of this is speculation. As PennFuture confirms through its own right-to-know requests, DCNR “is in advanced negotiations with Anadarko Petroleum to allow new gas development on in the Loyalsock State Forest,” including the Clarence Moore Lands, and the “Exceptional value” watersheds at the Devil’s Elbow Natural Area, Rock Run, and Old Logger’s Path (DCNR caught in unauthorized talks for gas development in Loyalsock State Forest – Chambersburg Public Opinion). My aim is simply to expose the underlying depravity of the DCNR/Anadarko romance in order to show why “better laws” will never save the Loyalsock—or any “special place” from this mercenary, effectively ecocidal industry.

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What’s most important about this story are two things:

First, the only morally defensible response to the Anadarko/DCNR correspondence is that, in light of the facts, any response that entrusts to DCNR—or to any agent of the Corbett corporatocracy—another moment of inaction in the name of “moderation” or “better laws” is inexcusably deluded. If I told the emergency room physician “Thank the gods for walking man—that “Good luck with that!” was just what I needed!” she’d have thought me daft—and rightly so. Yet “Good luck with that!” is precisely what Ellen Ferretti means when she insists that “DCNR has engaged in an unprecedented amount of public involvement regarding the complex issues surrounding the Loyalsock State Forest,” followed up with “we are guided by our mission of stewardship of the public lands for the benefit of all Pennsylvanians. This mission must be balanced with the legal rights of subsurface estate owners.” In Ferretti’s case, “balance” turns out to be another version of “moderation,” in other words, a give-away to Anadarko and a “Good luck with that!” to the citizens of Pennsylvania who’ll be left holding the bag for polluted watersheds and destroyed recreational and aesthetic opportunities. (https://www.lockhaven.com/page/content.detail/id/546057/Unprecedented-amount-of-public-involvement-with-Loyalsock-forest.html?nav=5006).

Second, while the Loyalsock is ecologically splendid, aesthetically wonderful, and recreationally terrific—it is but one “special place” among countless others. What makes the Loyalsock significant is that because it is among the last bits of relative wilderness in the U.S., because its forests are relatively un-fragmented, it seems particularly feckless that fracking should occur here. If fracking is allowed here, there’s simply nowhere off limits. It’s as if walking man said to me, “Well, you can always get another ankle.” But of course, I can’t. So too with the Loyalsock. Gone will be gone—and just as my ankle is special to me, so too—and however others value it—the Loyalsock is special to all those who have and could experience it. Just like the Grand Canyon, or Canada’s Aboreal Forests, or the Karoo, or Polish farmland—or my left ankle.

The “I “Heart” Anadarko love letters reach back at least as far as February 2010 with an “aerial survey performed on Anadarko’s Warrensville to DC Duncan Trunkline from Loyalsock Township into Cascade Township.” Recorded as one line of 33 on the “Anadarko Marcellus Midstream, LLC-Warrensville Trunkline, DCNR Blessing Mountain Timeline,” by 4.11.2011, it is abundantly clear that Anadarko’s representatives assume that what’s being hashed out is simply the where and the how of their presumed subsurface rights—not whether, not if, and not a whisper about whether subsurface rights implies surface access. This is a company that’s used to assuming its mineral rights entitle it to whatever it needs to do to get to its minerals; probably a Texas thing. And DCNR raises not a single question about any of that until January 2012. Thing is, there’s a Pandora’s Box of problems concerning surface access on the Clarence Moore Lands, and in a particularly telling January 4th letter from then DCNR Secretary Richard Allen to Anadarko VP Douglas Lawler, Allen writes:

 I have reviewed and discussed the letter you provided to me at our meeting on December 7, 2011…In doing so I have gained further understanding of the complexities that exist with respect to the gas and surface access rights on the approximately 25,ooo acres in the Loyalsock State Forest of interest to your company…We look forward to receiving your company’s proposed natural gas development plans for the gas you own or control within the Loyalsock State Forest…This information will be vital to negotiating a comprehensive surface use agreement that will facilitate your gas development in a manner that protects these important public lands.”

Note there’s nothing here about whether public lands deserve a public hearing. DCNR is simply negotiating a “surface use agreement” about just how much of the people’s forest will be destroyed in acquiescence to Anadarko’s subsurface rights—themselves assumed to trump any rights of the citizens of the Commonwealth to enjoy lands their tax dollars pay for. Allen then recounts the history of the Clarence Moore Lands, but the upshot is this: The Commonwealth owns 18, 780 acres of the land that Anadarko wants to drill, the gas and surface rights of which were split in a 1989 court decision recognizing the gas as belonging to Anadarko, but that the surface access was still determined by a 1933 deed which limits gas development to a term of 50 years (hence expired in 1983).

The Commonwealth thus controls “the right to use the surface,” and can deny that use.

Allen expresses “concern” that Anadarko fails to recognize this right, and bristles (a little) at Anadarko’s characterization of DCNR as “uncooperative” (failure to bend over with due diligence, drawers dropped). Allen references the “timeline,” reminds Lawler of DCNR’s granting to Anadarko “non-competitive leases,” generous “right of way” access across Blessing Mountain, and that DCNR had “granted numerous requests for waiver of lease terms on other state forest tracts being developed by your company.” In other words, DCNR not only has repeatedly dropped drawers, but has bent over backwards to romance Anadarko pretty much anywhere to do pretty much anything. This, Allen goes on, is just a teeny legal “box-checking” called  “surface use agreement” that the relevant attorneys can fix up over a nice lunch (or, if you will, a request for lube).

But here’s the mind-blowing rub:

Secretary Allen could have simply exercised the legitimate authority of his agency and denied Anadarko “the right to use the surface,” knowing full well that that would have prevented the drilling company from building essential access infrastructure, and therefore from developing the Clarence Moore Lands at all—and hence probably driving Anadarko out of the Loyalsock altogether.

But Allen (a) neither called for public hearing about whether this decision would be the people’s will (he knows, as does Ferretti, that it is not), nor as much as intimated to Anadarko that such a hearing would be appropriate, (b) went out of his way to reassure and remind Anadarko of how much DCNR loves it, wants it to come-n-get-some-gas, and (c) promptly ignored (a) moving swiftly to establish a “surface use agreement.” No hearing. No public notice. Nothing but love for a company who merely have to call DCNR “uncooperative,” and they get everything they want—kiss kiss, hug hug.

To put it all in perspective: there I am crumpled up on the track with my trashed ankle. I’ve been there for 33 minutes, and as I look around, I can see that the reason I fell was because of “aerial surveys,” seismic testing, and the like. Walking man comes over and expresses concern that “I should get that looked at,” but then someone else shows up—Doug Lawler, and says my ankle is fine, I should stop whining, and that what he needs is “surface access” to my ankle because he actually owns the bones, muscles, tendons, and ligaments underneath my skin. I’m not in much of a position to protest (I’m in mondo pain), and walking man concedes to what Ellen Ferretti later calls “balance,” namely, handing over my entire ankle, leg, and attached body even though he could have said no, could have stood by a law that authorized him to say no—and saved me. But he didn’t. And that fateful decision of walking man Richard Allen set into motion precisely that collusion that Aristotle would have called out as depravity.

Depravity: in the name of “balance,” “moderation,” and “property,” Secretary Allen not only failed to do the right thing—deny Anadarko surface access—but abetted in the most cloying and sycophantic fashion a positive evil—the knowing destruction of the Clarence Moore Lands, and with those 18,780 acres, the fragmentation of the Loyalsock Forest.

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 Why “better laws” will never be enough:
Every fracking corporation is Anadarko and every forest is the Loyalsock

By March 15th, 2012, Doug Lawler has had enough of playing nice, and sends this to Secretary Allen:

 Please accept this letter as an update to our previous correspondence and discussions. As you may recall, I agreed to provide to you an updated development plan for Anadarko’s development of those lands managed by DCNR as part of the Loyalsock State Forest where Anadarko has oil and gas ownership.

Translation: You, DCNR, manage. We,  Anadarko own. We, Anadarko, decide, and we have played your little “please don’t hurt me” game long enough. Lawler then reminds Allen that their romance has carried on for six long years, and that “Anadarko’s plan clearly demonstrates its commitment to the environment through responsible stewardship and sustainable development in that the anticipated surface occupancy…is less than 2%,” a “conservation approach” that “exceeds the gold standard,” and—most importantly—“results in significant payment to the DCNR for the surface utilized.”

But what “conservation approach” means to Anadarko is “avoiding litigation that costs the company money.” For example, while Doug Lawler is busy playing “smooch-n-smack-down” with DCNR, Reverend Steven Jamison of Columbus, Mississippi is trying to figure out what the foul turpentine-smelling black ooze is that’s seeping up through freshly dug culverts behind his Maranatha Faith Center.

 Jamison phoned the Kerr-McGee Corp. plant down the road. The company produced creosote, a toxic wood preservative, and coated railroad ties and telephone poles with it. A manager told him the stuff probably wasn’t creosote and that even if it were, it wouldn’t hurt anyone, Jamison says. So he kept working, immersing himself in sludge and bringing in dirt to absorb it. After digging for six weeks, Jamison, who says he hadn’t had health problems beforehand, was sick and losing weight. He says his kidneys were functioning at less than a third of their normal level. That April, when Kerr-McGee offered to help remove the old culverts, the crew arrived in hazmat suits, Jamison says. (Anadarko Fights Ailing Preacher in $25 Billion EPA Toxic Lawsuit – Bloomberg)

Kerr-McGee is Anadarko: “Anadarko bought Kerr-McGee for $16.4 billion and an estimated $1.6 billion of debt and other liabilities in a deal announced in June 2006. The purchase was completed in August of that year. Lawyers for the U.S. say they estimate the value of assets transferred was $15 billion, and have added $10 billion for interest and appreciation” (http://www.bloomberg.com/news/2012-05-15/anadarko-was-part-of-25-billion-scheme-u-s-says.html). Yet, by a beautiful sleight-of-hand of U.S. corporate law, Anadarko gets to claim it’s not really Kerr-McGee—or, rather, it’s Kerr-McGee’s assets, but not Kerr-McGee’s liabilities. Pretty sweet deal for Anadarko:

The U.S. Department of Justice, in a lawsuit on behalf of the Environmental Protection Agency and other environmental and state agencies, says Kerr-McGee fouled 2,772 sites, including Columbus, during seven decades of producing chemicals, fertilizer and plutonium pellets. The lawsuit, scheduled for trial beginning May 15, seeks $25 billion to clean up the toxins and compensate tort claimants — or the people who say they’ve been personally harmed. “That is by far the biggest polluter on record,” says David Guest, an attorney with nonprofit law firm Earthjustice. “This is an almost unprecedented case in terms of how much money is in play.” Trouble is, Kerr-McGee no longer exists. It disappeared in a spinoff, a merger — into Anadarko Petroleum Corp. (APC) — and a bankruptcy, corporate maneuvers that have frustrated small-town residents across the country who say the pollution has ruined their health. (Anadarko Fights Ailing Preacher in $25 Billion EPA Toxic Lawsuit – Bloomberg)

So while this 25 billion dollar lawsuit may hang a “shadow” over Anadarko stock—making it that much more important that the corporation turn a profit—Reverend Jamison is left to deal on his own with wrecked kidneys. Robert Gordon, a partner in New York law firm Weitz & Luxenberg, which specializes in mass tort and wrongful injury suits compares Anadarko’s evasion of liability to a card game where “the dealers cheat the victims”: “Establishing liability can be like three-card monte,” he says. “‘Oh, sorry. You got the wrong corporation. Oh, sorry. You got the wrong corporation again.’” (Anadarko Fights Ailing Preacher in $25 Billion EPA Toxic Lawsuit – Bloomberg).

This is the same Anadarko that “unleashed a broadside against the British oil giant [BP], accusing the company of “gross negligence or willful misconduct” for the Deep Water Horizon disaster despite Anadarko’s 25% ownership in the blown-to-shit well. In other words, Anadarko’s response to disaster is “evade, deny, avoid, play victim.” That’s what Doug Lawler means by “conservation approach” (Anadarko Petroleum Blames BP’s Actions for Oil Spill – WSJ.com).

If we fail to see that that strategy is already fully in play in Lawler’s Three Card Anadarko-Monte game with Secretary Allen’s and now Interim Secretary Ferretti’s DCNR, we are fools.

In fact, Lawler’s reference to “only 2% disturbance” is precisely a move in this perverse game. 26 proposed well pads, multiple wells on each pad, road infrastructure to access the 26 pads, the compressor stations, truck transport of sand, derrick, and waste water, pipeline construction (and potential rupture) is a disruption of the whole forest, its surface, its creeks and streams, its indigenous wildlife, its endangered species (Lovers of Pa.’s Loyalsock Forest Fight to Limit Drilling There | StateImpact Pennsylvania ). In fact, as restoration ecologist Kevin Heatley makes clear, the road construction and truck “fraffic” alone will fragment the forest, making it vulnerable to invasive species that will alter predator/prey relationships, and fundamentally change the character of the forest ecology. And this doesn’t require an accident to occur. All this requires is what we already know—that when you turn an ecology into a parking lot, everything it depends on and generates changes—forever (DCNR Loyalsock meeting: Kevin Heatley – YouTube).

Anadarko lies, evades, dissimulates, and fabricates whatever it needs to achieve its objectives. It hires spokespersons like former Williamsport Mayor, Mary Wolf, to lie for it: “[a]s with all of our operations on state forest land, we are looking to minimize surface disturbance and protect special places like Rock Run.  We will work with [state agencies] to communicate any approved plans as appropriate.” But whether state forest land or game land or leased land, Anadarko’s record speaks for itself. As Professor Bob Myers (Lock Haven University) painstakingly documents:

 [I]n 2010, Anadarko was cited four times for inadequate cementing of their casings. In each of these incidents, they were also cited for failure to report the faulty cementing in the proper fashion.

Anadarko’s touts its “closed-loop system,” where no cuttings from a drilling “would ever touch the Commonwealth.” This is good news, since Anadarko seems to have had problems maintaining their containment pits to DEP specifications. In 2010 they were cited 14 times for various infractions concerning these pits (insufficient capacity, holes in the liner, the liner subsiding into the pit). The inspectors noted spills of wash water, diesel, oil, grease, and triethylene glycol on the pad or on the ground surrounding the pad. On three occasions substantial amounts of chemicals touched the Commonwealth. On March 26th Anadarko spilled 12,000 gallons of synthetic-based mud at a drilling site in the Sproul State Forest. On June 15th, they discharged 150 gallons of hydraulic fluid onto the ground at a drilling site in Centre County. And on December 22, at another Centre County site, production fluid was released from a line that was left uncapped by a worker for at least 24 hours. Politicians and business leaders who want to tap into the financial bonanza of the Marcellus Shale believe that if all of the gas companies were like Anadarko, we could have the benefits of drilling without any of the problems associated with this industry. But, as these incidents suggest, responsible drilling is a myth. While Anadarko is indeed one of the very best of the gas companies, their activities still represent a serious threat to the people and the environment of Pennsylvania. (http://pennbpc.org/sites/pennbpc.org/files/CMSC-Myers-Wmsport.pdf)

“Responsible drilling is a myth.” Thank you Professor Myers. Hence, “better laws” will never be enough. In fact, the rhetoric of “better laws” is an invitation to continue to do evil because it promises to mitigate what it cannot mitigate—pollution, destruction, erosion. In September, 2012, the Responsible Drilling Alliance (RDA) appealed to the Pennsylvania Constitution, Article 1, which makes it a duty of DCNR “to conserve and maintain State Forest lands for the benefit of all Pennsylvanians,” in its letter to DCNR demanding a full environmental impact study, a demonstration of public benefit (since the state does not stand to accrue royalties on the gas drilling), and public hearings (PA Environment Digest – PA Environment Digest). But RDA stops short of recommending to DCNR that it simply deny Anadarko “right of way” or “surface” access, implying instead that, on completion of an environmental impact study, Anadarko will be able to move ahead without unduly disrupting the “sensitive ecologies” of the Loyalsock.

This position is concession paraded as “moderation” and “balance.” But worse, it’s collusion because RDA—and every environmental organization whose representatives think that Anadarko has any other interest in the law than to evade, flout, and violate it when it suits its objectives—knows better. Once you know that, “Better get that looked at” (environmental impact studies) ain’t help—and if you still do nothing but repeat that vacuous message, you’ve effectively acceded to “Good luck with that.”

Anadarko has evaded its responsibility in the deaths of the eleven Deep Water Horizon workers.

Anadarko evaded responsibility in a Mississippi pastor’s kidney failure.

 Anadarko has repeatedly utilized faulty well casings—and evaded reporting this fact.

 Anadarko does not maintain its waste-water containment pits.

 Anadarko spilled 12,000 gallons of carcinogenic drilling mud in Sproul State Forest.

 And the list goes on. If this is one of the “good” companies—what on earth are we to expect from the “bad” ones? If Anadarko illustrates “best practices,” what are “worst”? And if this is how Anadarko treats Sproul State Forest, what makes us think that they’ll treat Loyalsock any differently? Even a 2% impacted surface is entirely too much—especially when you consider what’s in that impact. But that too is a feckless lie—and our job, not merely as “stewards of the earth,” but as moral agents is to howl this fact out to every public venue we can possibly reach until Anadarko pulls up its stakes and goes home.

 And now for the fracking future: Anadarko’s Three-Card-Monte

“Get out of the Loyalsock” is not the worldview of Interim DCNR Acting Secretary, Ellen Ferretti. She likes to play the Anadarko-Three-Card-Monte game, and by May, 2012 she has become a key player—quietly up-staging Secretary Allen who, apparently does not execute the will of the pro-frack Corbett administration with sufficient fervor. It’s clear from the email romance between Ferretti, Allen, and Lawler, that she wants to be on Anadarko’s team, and she dispatched a “Certificate to Survey” for the Clarence Moore Lands on May 14th 2012. She copied DCNR’s chief oil and gas geologist Teddy Borawski, famous in his own right for comparing the Josh Fox film Gasland to NAZI propaganda more than a year earlier (Fox’s parents are Holocaust survivors), and it is a clear indication where DCNR stands on fracking that they have not only retained Mr. Borawski at DCNR, but made him, anti-Semitic remarks and all,  “the point man on leasing and forestry” (Nazi comment digs a hole for Pa. official – Pittsburgh Post-Gazette). In fact, it’s Borawski and Chris Plank (DCNR, Chief, Division of Operations and Recreation)—at Ferretti’s (and ostensibly Allen’s) direction—who issues the certificate to begin survey work on the Clarence Moore Lands.

Email correspondence shows, however, that by May 16th Anadarko is already displeased with the speed and efficiency of its DCNR counterparts—and DCNR State Forester Dan Devlin is scurrying to “make nice” with Anadarko’s VP of Operations, Chris Doyle: “I apologize for the delay in our approval process…We are a little behind in our paperwork flow. We are stretched a little thin in our central office right now.” Besides the fact that such correspondence doesn’t inspire much confidence in DCNR’s ability to carry out even basic oversight with respect to Andarko’s operations in the Loyalsock, it also indicates once again that Anadarko controls the entire game. Doyle responds by chastising Devlin, pointing out that Anadarko has been waiting over a year to pursue its drilling and pipeline plans. A month later, June 15th Feretti writes to Doug Lawler with a proposed agenda to “finalize” a “Surface Development Management Agreement,” settle Anadarko’s dollar offer to DCNR, and “provide guidance on future drilling plans across the system.” On July 18th, Ferretti informs Lawler that DCNR will be “sending you a copy of the Department’s comments to the proposed Surface Development management Agreement,” as well as the agreement itself. She writes that DCNR anticipates reaching out to Chris Martin, Anadarko spokesperson, “to expedite discussion on Anadarko’s proposed Loyalsock State Forest Development Plan…to keep things moving smoothly,” which includes discussion of compressor stations cited in “Recreational Opportunity Spectrum areas,” and “tower construction needs.”

By August 10th, 2012, however, no surface management agreement has been reached, “It is unfortunate,” writes Secretary Allen, but he’s “optimistic” that “a resolution” will be reached in the “near future.” Whether right of way issues have to do with forest disturbance or money is, however, unclear in the correspondence:

After the meeting, my staff attempted to recreate Anadarko’s  proposed fifteen million dollar…[July 30th, 2012] payment in lieu of rent using the DCNR’s established right-of-way (ROW) methodology…The department’s calculation using the ROW methodology indicates that Anadarko’s financial offer should be closer to $22,273,041.00. This figure assumes a term of thirty years…a reasonable expectation for a time frame during which the 500 proposed converted acres will be consumed by natural gas development and infrastructure.

Allen then goes on to point out that this sweet spot might have as much as 40 years of development. But by December 21st, 2012, the Anadarko/DCNR romance had hit quite the snag. While it is unclear from the correspondence itself exactly what happened, it reads rather as if walking man had said to me as I struggled to get my sneaker off my swelling right foot. ‘Wow! Maybe you really do need to get that looked at. Wait here. I’ll call 911!” Whether the impetus for this sudden concern about the Loyalsock came from Secretary Allen or some other quarter—I don’t know, but one thing’s clear: Anadarko is angry and posturing to sue, and Chris Sembritsky, General Manager, Marcellus and Utica doesn’t give a Tinker’s Damn about things like whether there’s a legally enforceable difference between mineral rights and surface rights. For Anadarko, mineral rights are surface rights, and Mr. Sembritsky has had enough:

We believe that the longstanding law in Pennsylvania, as elsewhere, is clear. An owner of the surface mineral estate has the right to develop its real property interest and has the corollary right to do so by assessing and using so much of the surface estate as may be reasonably necessary to develop its mineral estate.

Sembritsky then recounts the legal history of the Clarence Moore lands, and concludes that

[n]owhere did the Pennsylvania Supreme Court suggest that Clarence Moore’s subsyrface estate was an illusory one…Moore then, like Anadarko now relies upon the well-recognized non-contractual right to surface access when seeking to realize the economic value of the subsurface minerals. Naturally we realize that litigation is an option to us, should the Department deny to us pour property and without just compensation; however, it is our hope that that will not be necessary.”

Translation: We own these mineral rights, and we are going to do whatever we damn well please to get that goddamn gas out of the ground. We were playing along with your insufferable yammering about “surface rights agreements” and “right-of-ways,” but we’re tired of this now—and it’s costing us money. So kindly get the fuck out of the way before we sue your ass.

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And then four more months go by during which a public already deeply uncomfortable with the prospect of turning the Loyalsock into an industrial wasteland becomes louder and more persistent. DCNR responds to this with a resounding blunder, organizing an the first invitation-only, “Stake-holder” meeting April 4th, 2013 which excludes not only the public, but the press (Some Groups Miffed to Be Left Out of DCNR Meeting on Loyalsock Forest Drilling | StateImpact Pennsylvania). The invitees? Friends of Republican Representative Garth Everett and Republican Senator gene Yaw (who sneaks in the back to avoid reporters, (Invite-Only Gas Drilling Meeting Excludes Public, Media | WNEP.com).  Telling as well are the presence of environmental groups perceived to be friendly to the gas industry—The Sierra Club, The Audubon Society, and the Responsible Drilling Alliance—the “better laws” folks to be precise. Anadarko signaled its view of the “Stake-holder” meeting by not showing up.

The first public hearing (where DCNR required no sign-in, clearly signaling no follow up), was June 3rd, 2013 at Lycoming College to a packed and uniformly opposed audience of at least 400—nearly a year after virtually all of the key decisions about the Clarence Moore Lands had been made, and well after Anadarko has made clear their intention to drill with or without the blessing of DCNR—much less the people of the Commonwealth (Drilling Opponents Pack DCNR Meeting On Loyalsock State Forest | StateImpact Pennsylvania). More than three years have now transpired, each of them pock-marked with missed opportunities, failures of moral courage, and mercenary greed. By June 13th, 2013 Richard Allen is fired by Governor Corbett—but at least with respect to Anadarko in the Loyalsock, what internal email correspondence shows is that Ellen Ferretti has clearly been a key player for over a year. Indeed, while Allen has become the target of public criticism (and apparently Corbett administration dissatisfaction), Ferretti is enabled to work in relative peace, behind the scenes to insure Anadarko has everything it needs to industrialize Old Logger’s Path, Rock Run, the Clarence Moore Lands, and the McIntyre Wild Area. Among the conclusions we can, I think, safely draw is that Ferretti knows her job, and that she will waste no time doing whatever she needs to do to insure “collaboration” with the industry, contain the public—and interview for her next job (Corbett Forces Out DCNR Secretary Richard Allan [UPDATED] | StateImpact Pennsylvania).

But it’s time to return to Aristotle, and to my fable about my injured ankle.

It’s hard to imagine a story that better illustrates the Ancient Greek philosopher’s  wise counsel that moderation evinced in the face of evil is not virtue, but depravity disguised as reason. At every juncture in this absurd saga the opportunity to say “no—you will not destroy this,” is exchanged for compromise, middle ground—concession. And whatever the motivating factors in that concession—fear of lawsuit, genuine concern for the people’s land, some ludicrous belief that there’s such a thing as responsible fracking—it doesn’t matter. For what matters is that the Pennsylvania Constitution makes the state’s moral duty to its citizens clear—that we have a right to clean water and air, and that any entity that would endanger the exercise of that right must show how some benefit to the public outweighs the cost. Anadarko—to its credit—doesn’t even try to make out that argument. Instead it goes directly for the one appeal the Corbett administration recognizes—the property rights of entities big and powerful enough to make good on the tacit promise that state appointments are simply rehearsals for more lucrative jobs in the gas industry, Michael Krancer, for example (Mike Weilbacher: Michael Krancer’s life after DEP – Main Line Times – Main Line Media News).

But what industry does—even what the corrupted state does—is not really the point. We expect Big Gas to be mercenary and ruthless, and we know the state caters to that industry.

The more important point takes us back to walking man. Let’s imagine that, unknown to me, there was another person walking the track that day who saw me take that awful fall. “Better get that looked at” says walking man. The other person, a “responsible falling” advocate says “You know, if we just had better laws, no one would fall.” Walking man then chortles ‘Yeah! That’s what we need! Better laws to prevent falling. Suspend gravity! That’s what we need!” And then they both walk away–arm in arm.

And that is the moral of my story: the very agencies invested with the responsibility to protect the people’s right to clean water and air—at least with respect to that over which they exercise jurisdiction, in this case state forests—have not only abrogated that responsibility, but concealed their nefarious communications to destroy the forest for profit from the very beginning. Worse, however, is that we should now know this fact—and still claim that what we need are simply better laws. What Anadarko knows is that as long as we can be bribed with that appeal to “moderation,” we will effectively do nothing to prevent the disaster that awaits the Loyalsock.

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“Better laws” can no more prevent this disaster than they could prevent falling or suspend gravity. And until we decide that a moderate response to a monster like Anadarko is tantamount to dropping to our knees in submission—until we decide that a little rape is still rape, that a little cancer is still cancer, that a little slavery is still slavery, and that a little “Good luck with that!” is still abject negligence—we bear the primary fault for what is coming. The Loyalsock is just a symbol of that precious thing called “the world,” a world that is ours and every other species of living thing. But to demand that world, we must decide that our children’s lives are worth more than the pale gruel of “sustainability.” We must decide that “special places” are the planet, and that life is more precious than property.

For relevant photographs, please see: Collection: ANADARKO/INERGY/CYNOG/SENECA: GET OUT OF THE LOYALSOCK

 

 

 

 

4 Comments to Of Aristotle and Anadarko: Why “Better Laws” Will Never be Enough

  1. Epilogue:

    Of all the essays I have drafted these past several years on this topic, this one is perhaps the most significant and the most risky. My focus is not as much the natural gas industry, or even corrupt government. It’s the environmental movement. We call out–and rightly–government agencies for not doing their job–but then we fail to draw the obvious conclusions from our own repeated experience, namely, that there are no “better laws,” there are no regulations that will ever be adequate to prevent the destruction caused by industrialized extraction. Every time we cry foul–but then decide to “play nice” with an industry that is killing us–with some version of “Now, now–we can all come to some agreement,” or “YOU Wendys out there are the “radicals,” and WE environmental orgs are the “adults,” (and this runs along rails that are sexist and arguable racist as well),” Or “There must be a middle ground”I just get one jot clearer about how we got ourselves into the climate change mess in the first place: by acquiescing to the absurd idea that, say, a little rape isn’t really rape, a little animal abuse isn’t really abuse, a few sacrifice zones are acceptable losses….This thinking–what Aristotle called out as depravity–holds that evil is measurable as quantity–not quality. That so long as the suffering is “just a few” or “just those less desirable,” or “over there,” it is somehow mitigated. It is not. And that we have come to think it is in the name of “property” as if it were some god is just another example of this kind of depravity.

    What I found in all this correspondence between Anadarko and DCNR was a consistent pattern of subterfuge–saying more or other than the words in the correspondence. And this isn’t so much a reading between the lines as it is getting a bead on the repeated phrases, the “code,” the cues, the prompts that reassure everyone of the game being played and its rules. It’s as if there’s an agreement that everyone is lying, dissimulating, omitting, but because everyone knows, it’s legitimated.

    In the end, of course, I am calling out US to be better–there are no regulations that can keep this monster controlled, and there is no accident that demonstrates this fact. What demonstrates it is actually just the opposite–so long as there are no egregious catastrophes, they just keep building frack pads, pipeline, etc, and so long as we keep waiting for the disaster–failing to recognize that the industry itself IS the disaster–we will keep insisting that “better laws” are enough. That, my friends, IS the tragedy, and without a movement united resolutely and without compromise around a BAN, WE are fellows in THAT tragedy. That is simply the truth–no “middle ground,” no moderation.

  2. Dr. Lee is exactly right when she says that “Better laws will never be enough”.

    To “regulate” any industrial activity of this extreme magnitude is simply to attempt to adjust the rate of destruction. It is nothing more than a misleading corporate/political “green-washing” of an operation that could no more be considered environmentally responsible than tossing old lead-acid car batteries into a high quality stream.

    To those who claim this industry can be “regulated”, I throw down the gauntlet and challenge them to offer one documented example – anywhere, where this has worked out. I’m waiting…..

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