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Big Oil's Best-Kept Secret

To keep itself off the Toxics Release Inventory, the fossil fuel industry might have a new trick up its sleeve—putting state attorneys general on the payroll.

By now most of us have a basic grasp of the way fracking works: Pumps shoot a high-pressure cocktail of water, silt, and chemicals hundreds of feet underground, shattering ancient rock and releasing pockets of natural gas, a whole lot of money, and a brew of toxic byproducts. What we don’t know is exactly how much of which toxins are collecting in the soil, seeping into groundwater, or wafting into nearby communities. Fossil fuel companies have kept it that way, with help from governors, congressmen, senators, and, increasingly, state attorneys general.

The energy industry is exempt from portions of many of our major environmental laws, including the Clean Air Act, the Safe Drinking Water Act, and the Resource Conservation and Recovery Act. And yet, according to a coalition of environmental groups suing the EPA, the industry emits an estimated 127,000 tons of air pollutants—including such proven carcinogens as benzene and ethylbenzene—from more than 25,000 wells every year. You won’t read that number in any EPA report, though: The agency doesn’t give it out, says Adam Kron, a lawyer for the Environmental Integrity Project.

But now, if a lawsuit filed in January by Kron’s organization and a host of other environmental groups is successful, that opacity could finally come to an end. The suit aims to force the EPA to bring frackers and drillers under the control of what’s known as the Toxics Release Inventory (TRI), a public database that tracks hazardous waste on behalf of communities near industrial sites. It’s as much a public health issue as it is an environmental one, explains Kron, who says that communities afflicted by burning skin and seared lungs “would finally have information to show a doctor.”

The tale of the TRI, from its passage to the latest court case, is an object lesson in government complicity. The industry has been able to stay off the TRI since its inception in the late 1980s by resorting to all kinds of tricks. For the past two decades, for example, its lawyers have argued that extraction sites do not fall under the legal definition of “facility.” But all those evasions were successful largely because of a loophole written into the inventory nearly 30 years ago. The Community Right-to-Know Act, the very law that created the Toxics Release Inventory, includes a provision that allows any company to classify its waste products as “trade secrets.” An oil company can claim that disclosing its pollutants would also reveal the technologies and processes that provide its competitive edge. That logic may seem elusive, but it’s worked for three decades. (A spokeswoman for the EPA declined to comment on the lawsuit.) 

But cash-flush companies, tenacious lobbyists, bootlicking lawmakers—these are just the usual culprits. Nowadays attorneys general themselves are looking to influence political outcomes more and more, including joining the fight over the TRI. That can be a good thing. In 2005, for instance, a coalition of 12 AGs objected to the EPA’s plan to water down the database’s stringent reporting requirements.

More recently, however, it’s become clear that some AGs are getting pretty cozy with Big Oil. A blockbuster New York Times investigation in December presented a mountain of evidence that lobbies had pocketed at least 12 attorneys general across the United States. One revelation: In 2012 oil refiners and utility companies joined Oklahoma Attorney General Scott Pruitt in a lawsuit against the EPA to stall the retrofitting of coal-fired power plants. Another doozy: In a letter—printed on official stationery—to the President, Pruitt accused federal regulators of grossly overestimating air pollution from new natural gas wells in his state. The letter, it turned out, had been ghostwritten by lobbyists for Devon Energy.

“They grab [officials] by the hors d’oeuvre table, order them another drink, and explain why the energy sector is good for America,” says Robert W. Painter, a fellow at Harvard’s Safra Center for Ethics, describing how Pruitt and others might become shills for oil and gas. Now Painter is pushing for ethics reforms to prevent prosecutors from canoodling with company reps out to buy them. “It’s a lot like bribery,” says Painter, “and [my proposal] is a prophylactic for it.”

There’s one more worry. Attorneys general have the power to shape—or outright gut—state environmental laws, not just federal ones. For example, just last year Texas Governor Greg Abbott, then the attorney general (and whose two attorney general campaigns raked in $2.5 million in contributions from energy companies), ended public access to the hazardous chemical inventory. The scale of the alleged misconduct has raised a question long thought settled: What should an AG’s job description be? Painter has one answer. “Their primary function is to follow the law,” he says, “not debate what it ought to be.”

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