ALEC Wasn't First Industry Trojan Horse behind Fracking Disclosure Bill
By Steve Horn
The American Legislative Exchange Council (ALEC), put on the map by the Center for Media and Democracy in its "ALEC Exposed" project, is the archetype of von Bismarck's truism. So too are the fracking chemical disclosure bills that have passed and are currently being pushed for in statehouses nationwide.
State-level fracking chemical disclosure bills have been called a key piece of reform in the push to hold the unconventional gas industry accountable for its actions. The reality, though, is murkier.
On April 21, The New York Times penned an investigation making that clear. The Times wrote:
Last December, ALEC adopted model legislation, based on a Texas law, addressing the public disclosure of chemicals in drilling fluids used to extract natural gas through hydraulic fracturing, or fracking. The ALEC legislation, which has since provided the basis for similar bills submitted in five states, has been promoted as a victory for consumers’ right to know about potential drinking water contaminants.
A close reading of the bill, however, reveals loopholes that would allow energy companies to withhold the names of certain fluid contents, for reasons including that they have been deemed trade secrets. Most telling, perhaps, the bill was sponsored within ALEC by ExxonMobil, one of the largest practitioners of fracking—something not explained when ALEC lawmakers introduced their bills back home.
The Texas law The Times refers to is HB 3328, passed in June 2011 in a 137-8 roll call vote, while its Senate companion bill passed on a 31-0 unanimous roll call vote. Since then, variations of the model bill have passed in two other key states in which fracking is occuring.
Like dominos falling in quick succession over the following months, Colorado, Pennsylvania and, most recently, the Illinois Senate passed bills based on the ALEC model. Louisiana also has introduced a similar bill.
Other states where the bill has been proposed but has not yet passed—or has been killed dead in its tracks—include Massachusetts, Maryland, New York, Indiana, California and Arkansas, according to the National Conference of State Legislatures.
The tale of how the Texas bill became a national model exemplifies the stranglehold polluter power and corporations like ExxonMobil—referred to as a "private empire" in investigative journalist Steve Coll's new book—have over both the federal government and statehouses nationwide.
But was ALEC the only trojan horse behind the loophole-filled bill? The short answer is "no"—here's why.
First A Council of State Governments Model Bill…Then ALEC Model
Lost in the shuffle of the ALEC Exposed discussion has been another corporate-funded bill mill that has flown almost entirely under the radar: the Council of State Governments (CSG). While a CSG 101 is worthy of a series of articles in of itself, it is worth pointing out a few basics:
- CSG has a total operating budget of roughly $30 million a year, compared to ALEC's operating budget of roughly $6 million a year, according to each organization's IRS 990.
- Both organizations are funded by corporate largesse, with corporate membership costing in the range of $6,000-$25,000/year for CSG depending on what type of membership a corporation purchases, and between $7,000-$25,000 for ALEC.
- Unlike ALEC, which is Republican Party dominated, CSG is completely bipartisan in nature, with politicians from both sides of the aisle actively participating in it.
- Perhaps most importantly, corporate lobbyists that have a voice and vote as co-equals on "model bills" at ALEC's annual legislative conference have the same privilege at CSG's conferences, where they have a voice and a vote on "suggested state legislation" (SSL), as it calls it.
Texas HB 3328 became a piece of CSG's SSL arsenal at its October 2011 National Conference, which took place in Bellevue, Washington. In other words, this was a CSG model bill roughly two months before it became an ALEC model bill.
"I have not seen the CSG model bill so I would not be able to verify it was the same language. A lot of times ALEC model bills are derived and introduced in states before they even come to ALEC," Todd Wynn, the ALEC Energy, Environment, and Agriculture Task Force director told DeSmogBlog in an interview.
"What is interesting is that there has been bipartisan support for hydraulic fracturing fluid disclosure all across the country. Even President Obama supports it, as he stated in his last State of the Union address," Wynn continued.
ExxonMobil and API High-Level Sponsors of CSG Conference
DeSmogBlog has obtained a copy of the model bill, a list of lobbyists and politicians who attended the SSL session for the 2011 Conference, and the rest of the legislative docket that received "up" or "down" votes at the 2011 Conference, as well.
While no oil and gas industry lobbyists appear on the SSL "up/down vote" list, that does not necessarily mean they were absent from the Conference at-large, as the list of lobbyist attendees is not publicly available information.
That said, ExxonMobil and the American Petroleum Institute (API) were both Conference Sponsors at CSG's 2011 National Conference. ExxonMobil was a Gold Level Sponsor, while API was a Silver Level Sponsor. CSG Director of Membership, Marketing & Media, Kelley Arnold, told DeSmogBlog that CSG does not disclose how much money each sponsorship level is worth.
ExxonMobil was also the sponsor of the ALEC model bill.
It doesn't end there.
The disclosure standards found within both the CSG and ALEC models, in turn, were initially decided by a gas industry-heavy Obama Administration-created Panel formed in May 2011.
Obama Administration Announces DOE Fracking Safety Panel
In May 2011, the Obama Administration Department of Energy (DOE) announced the formation of a panel to "study the practice of hydraulic fracturing (fracking), and determine if there are ways, or even a necessity, to make it safer for the environment and public health," as we reported on DeSmogBlog.
The other half of that equation we reported back in May: "Unfortunately, according to a report by the Environmental Working Group (EWG), the administration stacked the panel with oil and gas industry insiders."
EWG provided a list of these figures, as seen below:
Panel chair John Deutch, a former director of the Central Intelligence Agency, now on the board of Cheniere Energy, Inc., a Houston-based liquified natural gas company that, according to Forbes Magazine online, paid Deutch about $882,000 from 2006 through 2009. During a stint on the board of Schlumberger Ltd., one of the world’s three largest hydraulic fracturing companies, Deutch received about $563,000 in 2006 and 2007, according to Forbes.
Stephen Holditch, head of the petroleum engineering department at Texas A&M University and a leader in the field of hydraulic fracturing designs, first at Shell Oil, later as head of his own firm, acquired by Schlumberger in 1997. Today, he is engineering committee chairman at Matador Resources, a Dallas oil and gas exploration company.
Mark Zoback, a geophysics professor at Stanford and senior advisor to Baker Hughes, Inc., a Houston-based oilfield services company engaged in hydraulic fracturing. Zoback is chair of GeoMechanics International, a consulting firm that advises on various oil and gas drilling problems and that was acquired by Baker Hughes in 2008.
Kathleen McGinty, chair of the White House Council on Environmental Quality during the Clinton administration and a former secretary of the Pennsylvania Department of Environmental Protection, now senior vice president of Weston Solutions, Inc., which consults for the oil and gas industry, including leading natural gas driller Chesapeake Energy, and a director of NRG Energy, a Princeton, N.J., wholesale power generation company whose assets include more than two dozen natural gas companies.
Susan Tierney, assistant secretary of the Energy department under President Clinton, now managing principal of Analysis Group, which consults for utilities that use natural gas and for the Interstate Natural Gas Association of America, the natural gas pipeline industry association.
Daniel Yergin, Pulitzer-Prize winning author of The Prize, a 1991 book about the oil industry, and co-founder, chairman and executive vice president of IHS CERA, originally called Cambridge Energy Research Associates, acquired in 2004 by IHS, an international consulting firm whose clients include the oil, natural gas, coal, power and clean energy communities.
Also on the panel was a single environmental representative….kind of. That all depends on your definition of "environmental." Environmental Working Group explains it best:
The panel’s environmental representative is Fred Krupp, president of Environmental Defense Fund, a New York-based nonprofit that focuses on environmental issues. Scott Anderson, EDF’s senior policy advisor for energy and spokesman on hydraulic fracturing is a member of the Interstate Oil and Gas Compact Commission, which opposes extending the federal Safe Drinking Water Act to hydraulic fracturing. The commission website asserts that fracking “needs no further study." Anderson is a former executive vice president and general counsel for the Texas Independent Producers and Royalty Owners Association.
This industry friendly panel eventually published a report offering its advice on disclosure standards in August 2011, two months after the passage of the Texas bill. These standards were incorporated into both the Colorado and Pennsylvania bills that are copycats of the original Texas bill (which is now the ALEC/CSG model), according to blog posts written by the Environmental Defense Fund (EDF).
EDF's Role in the Process
The Texas bill, in turn, was written collaboratively by the EDF and gas industry insiders, according to Earthworks, an environmental advocacy group which also expressed other concerns with the bill, writing,
HB 3328 continues a long Texas tradition of letting the oil and gas industry decide what's best. It requires only incomplete chemical disclosure of fracturing fluids, no advance notice to landowners that this information is available, and has no provision for third-party challenges to any trade secret exceptions.
Most of HB 3328 focuses on how industry may claim a trade secrets exemption and avoid chemical disclosure, and with no provision for a water user or a landowner to challenge the claim.
Other outspoken gas industry supporters of this loophole-laced Texas bill: Apache, El Paso, Petrohawk, Pioneer Natural Resources, and Talisman, according to EDF's Scott Anderson. (Anderson is a former high-ranking oil and gas industry official himself.)
Not the "Schoolhouse Rock" Version of Bill Creation
In December 2011, the fracking chemical fluid disclosure bill became an ALEC model bill at its States & Nation Policy Summit, which took place in Phoenix, Ariz.
It sure looks more and more like Otto von Bismarck was right on the money (excuse the pun!) nearly two centuries ago.
For more information, click here.
By Dana M Bergstrom, Euan Ritchie, Lesley Hughes and Michael Depledge
In 1992, 1,700 scientists warned that human beings and the natural world were "on a collision course." Seventeen years later, scientists described planetary boundaries within which humans and other life could have a "safe space to operate." These are environmental thresholds, such as the amount of carbon dioxide in the atmosphere and changes in land use.
The Good and Bad News<p><span>Ecosystems consist of living and non-living components, and their interactions. They work like a super-complex engine: when some components are removed or stop working, knock-on consequences can lead to system failure.</span></p><p>Our study is based on measured data and observations, not modeling or predictions for the future. Encouragingly, not all ecosystems we examined have collapsed across their entire range. We still have, for instance, some intact reefs on the Great Barrier Reef, especially in deeper waters. And northern Australia has some of the most intact and least-modified stretches of savanna woodlands on Earth.</p><p><span>Still, collapses are happening, including in regions critical for growing food. This includes the </span><a href="https://www.mdba.gov.au/importance-murray-darling-basin/where-basin" target="_blank" rel="noopener noreferrer">Murray-Darling Basin</a><span>, which covers around 14% of Australia's landmass. Its rivers and other freshwater systems support more than </span><a href="https://www.abs.gov.au/ausstats/[email protected]/latestproducts/94F2007584736094CA2574A50014B1B6?opendocument" target="_blank" rel="noopener noreferrer">30% of Australia's food</a><span> production.</span></p><p><span></span><span>The effects of floods, fires, heatwaves and storms do not stop at farm gates; they're felt equally in agricultural areas and natural ecosystems. We shouldn't forget how towns ran out of </span><a href="https://www.mdba.gov.au/issues-murray-darling-basin/drought#effects" target="_blank" rel="noopener noreferrer">drinking water</a><span> during the recent drought.</span></p><p><span></span><span>Drinking water is also at risk when ecosystems collapse in our water catchments. In Victoria, for example, the degradation of giant </span><a href="https://theconversation.com/logging-must-stop-in-melbournes-biggest-water-supply-catchment-106922" target="_blank" rel="noopener noreferrer">Mountain Ash forests</a><span> greatly reduces the amount of water flowing through the Thompson catchment, threatening nearly five million people's drinking water in Melbourne.</span></p><p>This is a dire <em data-redactor-tag="em">wake-up</em> call — not just a <em data-redactor-tag="em">warning</em>. Put bluntly, current changes across the continent, and their potential outcomes, pose an existential threat to our survival, and other life we share environments with.</p><p><span>In investigating patterns of collapse, we found most ecosystems experience multiple, concurrent pressures from both global climate change and regional human impacts (such as land clearing). Pressures are often </span><a href="https://besjournals.onlinelibrary.wiley.com/doi/abs/10.1111/1365-2664.13427" target="_blank" rel="noopener noreferrer">additive and extreme</a><span>.</span></p><p>Take the last 11 years in Western Australia as an example.</p><p>In the summer of 2010 and 2011, a <a href="https://theconversation.com/marine-heatwaves-are-getting-hotter-lasting-longer-and-doing-more-damage-95637" target="_blank" rel="noopener noreferrer">heatwave</a> spanning more than 300,000 square kilometers ravaged both marine and land ecosystems. The extreme heat devastated forests and woodlands, kelp forests, seagrass meadows and coral reefs. This catastrophe was followed by two cyclones.</p><p>A record-breaking, marine heatwave in late 2019 dealt a further blow. And another marine heatwave is predicted for <a href="https://www.theguardian.com/environment/2020/dec/24/wa-coastline-facing-marine-heatwave-in-early-2021-csiro-predicts" target="_blank" rel="noopener noreferrer">this April</a>.</p>
What to Do About It?<p><span>Our brains trust comprises 38 experts from 21 universities, CSIRO and the federal Department of Agriculture Water and Environment. Beyond quantifying and reporting more doom and gloom, we asked the question: what can be done?</span></p><p>We devised a simple but tractable scheme called the 3As:</p><ul><li>Awareness of what is important</li><li>Anticipation of what is coming down the line</li><li>Action to stop the pressures or deal with impacts.</li></ul><p>In our paper, we identify positive actions to help protect or restore ecosystems. Many are already happening. In some cases, ecosystems might be better left to recover by themselves, such as coral after a cyclone.</p><p>In other cases, active human intervention will be required – for example, placing artificial nesting boxes for Carnaby's black cockatoos in areas where old trees have been <a href="https://www.environment.gov.au/biodiversity/threatened/publications/factsheet-carnabys-black-cockatoo-calyptorhynchus-latirostris" target="_blank" rel="noopener noreferrer">removed</a>.</p><p><span>"Future-ready" actions are also vital. This includes reinstating </span><a href="https://www.abc.net.au/gardening/factsheets/a-burning-question-fire/12395700" target="_blank" rel="noopener noreferrer">cultural burning practices</a><span>, which have </span><a href="https://theconversation.com/australia-you-have-unfinished-business-its-time-to-let-our-fire-people-care-for-this-land-135196" target="_blank" rel="noopener noreferrer">multiple values and benefits for Aboriginal communities</a><span> and can help minimize the risk and strength of bushfires.</span></p><p>It might also include replanting banks along the Murray River with species better suited to <a href="https://www.abc.net.au/gardening/factsheets/my-garden-path---matt-hansen/12322978" target="_blank" rel="noopener noreferrer">warmer conditions</a>.</p><p>Some actions may be small and localized, but have substantial positive benefits.</p><p>For example, billions of migrating Bogong moths, the main summer food for critically endangered mountain pygmy possums, have not arrived in their typical numbers in Australian alpine regions in recent years. This was further exacerbated by the <a href="https://theconversation.com/six-million-hectares-of-threatened-species-habitat-up-in-smoke-129438" target="_blank" rel="noopener noreferrer">2019-20</a> fires. Brilliantly, <a href="https://www.zoo.org.au/" target="_blank" rel="noopener noreferrer">Zoos Victoria</a> anticipated this pressure and developed supplementary food — <a href="https://theconversation.com/looks-like-an-anzac-biscuit-tastes-like-a-protein-bar-bogong-bikkies-help-mountain-pygmy-possums-after-fire-131045" target="_blank" rel="noopener noreferrer">Bogong bikkies</a>.</p><p><span>Other more challenging, global or large-scale actions must address the </span><a href="https://www.youtube.com/watch?v=iICpI9H0GkU&t=34s" target="_blank" rel="noopener noreferrer">root cause of environmental threats</a><span>, such as </span><a href="https://www.nature.com/articles/s41559-018-0504-8" target="_blank" rel="noopener noreferrer">human population growth and per-capita consumption</a><span> of environmental resources.</span><br></p><p>We must rapidly reduce greenhouse gas emissions to net-zero, remove or suppress invasive species such as <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/mam.12080" target="_blank" rel="noopener noreferrer">feral cats</a> and <a href="https://theconversation.com/the-buffel-kerfuffle-how-one-species-quietly-destroys-native-wildlife-and-cultural-sites-in-arid-australia-149456" target="_blank" rel="noopener noreferrer">buffel grass</a>, and stop widespread <a href="https://theconversation.com/to-reduce-fire-risk-and-meet-climate-targets-over-300-scientists-call-for-stronger-land-clearing-laws-113172" target="_blank" rel="noopener noreferrer">land clearing</a> and other forms of habitat destruction.</p>
Our Lives Depend On It<p>The multiple ecosystem collapses we have documented in Australia are a harbinger for <a href="https://www.iucn.org/news/protected-areas/202102/natures-future-our-future-world-speaks" target="_blank">environments globally</a>.</p><p>The simplicity of the 3As is to show people <em>can</em> do something positive, either at the local level of a landcare group, or at the level of government departments and conservation agencies.</p><p>Our lives and those of our <a href="https://theconversation.com/children-are-our-future-and-the-planets-heres-how-you-can-teach-them-to-take-care-of-it-113759" target="_blank">children</a>, as well as our <a href="https://theconversation.com/taking-care-of-business-the-private-sector-is-waking-up-to-natures-value-153786" target="_blank" rel="noopener noreferrer">economies</a>, societies and <a href="https://theconversation.com/to-address-the-ecological-crisis-aboriginal-peoples-must-be-restored-as-custodians-of-country-108594" target="_blank" rel="noopener noreferrer">cultures</a>, depend on it.</p><p>We simply cannot afford any further delay.</p><p><em><a rel="noopener noreferrer" href="https://theconversation.com/profiles/dana-m-bergstrom-1008495" target="_blank" style="">Dana M Bergstrom</a> is a principal research scientist at the University of Wollongong. <a rel="noopener noreferrer" href="https://theconversation.com/profiles/euan-ritchie-735" target="_blank" style="">Euan Ritchie</a> is a professor in Wildlife Ecology and Conservation, Centre for Integrative Ecology, School of Life & Environmental Sciences at Deakin University. <a rel="noopener noreferrer" href="https://theconversation.com/profiles/lesley-hughes-5823" target="_blank">Lesley Hughes</a> is a professor at the Department of Biological Sciences at Macquarie University. <a rel="noopener noreferrer" href="https://theconversation.com/profiles/michael-depledge-114659" target="_blank">Michael Depledge</a> is a professor and chair, Environment and Human Health, at the University of Exeter. </em></p><p><em>Disclosure statements: Dana Bergstrom works for the Australian Antarctic Division and is a Visiting Fellow at the University of Wollongong. Her research including fieldwork on Macquarie Island and in Antarctica was supported by the Australian Antarctic Division.</em></p><p><em>Euan Ritchie receives funding from the Australian Research Council, The Australia and Pacific Science Foundation, Australian Geographic, Parks Victoria, Department of Environment, Land, Water and Planning, and the Bushfire and Natural Hazards CRC. Euan Ritchie is a Director (Media Working Group) of the Ecological Society of Australia, and a member of the Australian Mammal Society.</em></p><p><em>Lesley Hughes receives funding from the Australian Research Council. She is a Councillor with the Climate Council of Australia, a member of the Wentworth Group of Concerned Scientists and a Director of WWF-Australia.</em></p><p><em>Michael Depledge does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</em></p><p><em>Reposted with permission from <a href="https://theconversation.com/existential-threat-to-our-survival-see-the-19-australian-ecosystems-already-collapsing-154077" target="_blank" style="">The Conversation</a>. </em></p>
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