Florida may soon become the fourth state with a law on the books enforcing hydraulic fracturing (“fracking”) chemical disclosure. The Florida House of Representatives' Agriculture and Natural Resources Subcommittee voted unanimously (11-0) on March 7 to require chemical disclosure from the fracking industry. For many, that is cause for celebration and applause.
Fracking for oil and gas embedded in shale rock basins across the country and world involves the injection of a 99.5-percent cocktail of water and fine-grained sillica sand into a well that drops under the groundwater table 6,000-10,000 feet and then another 6,000-10,000 feet horizontally. The other .5 percent consists of a mixture of chemicals injected into the well, proprietary information and a “trade secret” under the Energy Policy Act of 2005, which current President Barack Obama voted “yes” on as a Senator.
That loophole is referred to by many as the “Halliburton Loophole” because Dick Cheney had left his position as CEO of Halliburton - one of the largest oil and gas services corporations in the world - to become Vice President and convene the Energy Task Force. That Task Force consisted of the Secretaries of State, Treasury, Interior, Agriculture, Commerce, Transportation and Energy. One of its key actions was opening the floodgates for unfettered fracking nationwide.
Between 2001 and the bill's passage in 2005, the Task Force held over 300 meetings with oil and gas industry lobbyists and upper-level executives. The result was a slew of give-aways to the industry in this omnibus piece of legislation. On top of the “Halliburton Loophole,” the bill also contains an exemption for fracking from Environmental Protection Agency (EPA) enforcement of the Clean Water Act and the Safe Drinking Water Act.
The federal-level response to closing the “Halliburton Loophole” is the Fracturing Responsibility and Awareness of Chemicals (FRAC) Act, a bill that never garnered more than a handful of co-sponsors.
Introduced as the “Fracturing Chemical Usage Disclosure Act” on Feb. 13, bill sponsor Rep. Ray Rodrigues (R-76) told The Palm Beach Post the day the bill passed in Subcommittee that there is “every indication…at some point in the future” that fracking will proceed in the Sunniland Shale basin and that being “proactive” is the way to go. A senate companion bill was also introduced as SB 1028 by Sen. Jeff Clemons (D-27) and if the bill passes in both chambers, it will be labeled SB 1776.
What Rodrigues didn't mention: the law was written by what investigative journalist Steve Coll referred to as a “private empire,” ExxonMobil.
Like its federal-level predecessor, it still contains the “trade secrets” loophole. It's also a model bill distributed both by the American Legislative Exchange Council (ALEC), as first revealed by The New York Times in April 2012, and the Council of State Governments (CSG), as first revealed here on DeSmogBlog.
FracFocus Façade: Sunshine State's Copy-Paste and Disaster-in-the-Make
It's “Sunshine Week” for open government groups and in the Sunshine State we've just witnessed a “copy-paste” job that happened out in broad daylight with no one noticing - until now.
A review of the bill's verbiage reveals it is essentially a mirror image of ALEC's “Disclosure of Hydraulic Fracturing Fluid Composition Act” and CSG's “Act relating to the disclosure of the composition of hydraulic fracturing fluids.”
Most telling is the section of Florida's bill calling for an “online hydraulic fracturing chemical registry.” That registry, like the Texas model the bill is based off of, would be run by FracFocus. An August investigation by Bloomberg News revealed that FracFocus merely offers the façade of disclosure, or a “fig leaf” of it, as U.S. Rep. Diane DiGette (D-CO), co-sponsor of the FRAC Act put it.
“Energy companies failed to list more than two out of every five fracked wells in eight U.S. states from April 11, 2011, when FracFocus began operating, through the end of last year,” wrote Bloomberg. “The gaps reveal shortcomings in the voluntary approach to transparency on the site, which has received funding from oil and gas trade groups and $1.5 million from the U.S. Department of Energy.”
In reality, FracFocus is a public relations front for the oil and gas industry, as we reported here in Dec. 2012, explaining,
FracFocus' domain is registered by Brothers & Company, a public relations firm whose clients include America’s Natural Gas Alliance, Chesapeake Energy, and American Clean Skies Foundation - a front group for Chesapeake Energy.
In short, the bill offers “sunshine” to the public in name only.
“This disclosure bill has a hole big enough to drive a Mack truck through,” Texas Rep. Lon Burnam (D-90) told Bloomberg.
How the Bill Became a “Model”
In May 2011, the Obama Administration Department of Energy (DOE) fracking subcommittee - consisting almost entirely of officials with ties to the oil and gas industry - convened to produce “best practices” for state-level regulations and disclosure standards for fracking.
Out of the subcommittee came the standards written into a Texas bill, HB 3328, passed one month later in June 2011 in a 137-8 roll call vote, while its Senate companion bill passed on a 31-0 unanimous roll call vote. $1.5 million in FracFocus funding stems from the DOE fracking subcommittee.
A Dec. 2012 Bloomberg probe revealed that the industry utilized the “trade secrets” exemption 19,000 times its first year as law of the land in Texas. For perspective, there are only 6,000 fracking wells in the state at-large.
In Oct. 2011 and Dec. 2011, the Texas bill became a “model bill” both at the CSG and ALEC annual meetings, respectively. ExxonMobil was one of the biggest corporate patrons for CSG's annual meeting that year, serving as a Gold Level Sponsor.
CSG is a partially corporate-funded and taxpayer-subsidized (via portions of state-level budgets) “trade association” which, like ALEC, passes model legislation often written by and voted upon by corporate lobbyists sitting alongside state-level legislators at its annual meetings. It refers to these bills as “Suggested State Legislation” (SSL). Unlike ALEC, its maintains bipartisan membership.
ALEC is 98 percent funded by corporations, corporate-funded foundations and trade associations. Like CSG, ALEC also passes “model bills” at its annual meetings in similar fashion: behind closed doors, with corporate lobbyists sitting alongside state-level legislators voting “up-down” on proposals. Unlike CSG, it's predominantly a Republican-centric operation.
The New York Times revealed in an April 2012 investigation that ExxonMobil authored the disclosure standards in the Texas bill that came from the DOE fracking subcommittee. ExxonMobil is the number one producer of shale oil and gas in the United States and a corporation which scored $44.9 billion in profits in 2012, $300 million dollars short of the world record for highest ever annual profit (which Exxon set in 2008).
The model bill has passed in Colorado and Pennsylvania and was proposed but failed in Massachusetts, Maryland, New York, Indiana, California, and Arkansas. Section 77 of Illinois' proposed Hydraulic Fracturing Regulation Act - as revealed here on DeSmogBlog - also contains the “trade secret” exemption.
Seven of the 15 members of the Florida Agriculture and Natural Resources Subcommittee are ALEC members.
Industry's Florida Plans Include Fracking the Everglades
A portion of the Sunniland Trend Shale, based in southwestern and southern Florida, overlaps the Everglades National Park. Florida's Republican Gov. Rick Scott, a climate change denier, has gone on the record stating fracking in the pristine park is fair game.
Department of Environmental Protection enforcement fell to record-low levels in 2011 in Florida, Scott's first year in office.
“The total number of enforcement cases fell by more than a fourth (28%) and the DEP Office of General Counsel received the third lowest number of case reports in agency history,” wrote The Bradenton Times. “Pollution penalty assessments dipped by a similar proportion (29%) while penalties actually collected dropped by more than half (57%). The number of big fine cases (more than $100,000) also was cut by half.”
While some speculate as to whether fracking will ever actually happen in Florida, the oil and gas industry has shown it's serious about developing this shale basin and will host the “Emerging Shale Plays USA” conference in Houston, TX from April 24-25. One of the sessions being led by Brandt Temple, the CEO of Sunrise Exploration & Production is titled, “Mapping The Geological Variance Of The Lower Sunniland To Pinpoint Sweet Spots And Identify Where To Place Wells.”
ALEC's track-record in the “United States of ALEC” is nothing to sneeze at.
“Each year, close to 1,000 bills, based at least in part on ALEC Model Legislation, are introduced in the states. Of these, an average of 20 percent become law,” ALEC boasts on its website.
One would be remiss given this track record, then, to write off the threat of fracking in the Florida swamplands.