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Gov. Cuomo prefers his water aflame

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Chalk it up to my living in the entertainment center of the Universe, but I can’t help feeling that documentaries, in tandem with smart social action campaigns, are one of the few vehicles these days that can actually move public policy in the right direction.

Take the issue of getting natural gas through hydraulic fracturing, known as "fracking."  The 2010 documentary Gasland grabbed people’s attention around the country – and the world – with its depiction of the natural gas industry wreaking havoc on communities across America. The scene of water from a kitchen sink exploding into flames (left) became a symbol for the process of pumping billions of gallons of polluted water into the ground to get access to natural gas.

Now Gasland 2 is slated for release later this year to keep the heat on the natural gas industry.

We have all heard about the dangers and the nightmarish existence of those who live around these drilling zones. But an op-ed in the Chicago Tribune this past week asks an excellent question: With the fracking gold rush in full effect, who is going to clean up the mess when the natural gas is gone?

The question resonated with me immediately because of something I experienced in the mid-90s when I worked for Senator Max Baucus (along with Obama’s Porsche-driving campaign director Jim Messina).

I visited the infamous Berkeley Pit in Butte, Montana, a former copper mine a half-mile deep with an alarming fluorescent-orange lake at the bottom. The pit is so infamous that it is now something of a tourist attraction (and Superfund site). It is laden with heavy metals and dangerous chemicals that leach from the rock, including arsenic, cadmium, zinc, and sulfuric acid. Not great for, say, drinking water.

I can’t help thinking that similar horrors will be left behind long after the natural gas companies have abandoned their fracking sites, in the same way Anaconda Copper and, later, ARCO abandoned the mine in Butte.

It would be helpful if the powers that be were thinking ahead to such environmental disasters. But if they are, it is only up to a point.

David Dana, the law professor at Northwestern University, who wrote the Tribune op-ed, points out that responsibility for the clean-up is far from clear:
The fracking operators almost certainly will cease to exist as legal entities after the fracking is done. American law makes it almost impossible to pierce the corporate veil and seek money from the individuals and corporations who invested in and owned defunct or dissolved corporate entities. The farmers and others who own the land where fracking occurred will lack the resources needed for remediation, and they will have a good argument that in fairness they should not have to pay for remediation. Of course the federal and state governments could pay, but, with massive deficits and massive public needs, that seems very unlikely.
The good professor has the answer:
[A] requirement that operators buy adequate remediation insurance as a condition of receiving a drilling permit. Operators will oppose being asked to bear the cost of insurance, but there is no reason to think they could not absorb this cost. Federal and state regulators have not pushed hard for insurance requirements because their focus has been on the technical issues of how to regulate fracking right now — issues like how thick the well pad should be.
Illinois is considering legislation to hold energy companies accountable for future clean-up costs through an insurance program, but for the moment it stands alone. In New York, Governor Andrew Cuomo is making plans to open the door to fracking in the Empire State. Gasland’s writer-director Josh Fox recently dinged the Governor in an 18-minute video, asking what color we can all expect the sky to be over the Manhattan skyline if his plans come to fruition.

How many times will we allow energy companies to despoil the land, while leaving someone else to deal with the blight they leave behind? It’s clear that we should heed Professor Dana's advice, and it’s time to hold those in public office accountable so it actually happens.

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