Jeff Sessions joins Donald Trump at
a campaign rally. (Getty). In Heavy.com
In Counterpunch
by STEVE HORN
DECEMBER 8, 2016
U.S. Senator Jeff Sessions (R-AL), President-elect
Donald Trump’s nominee for U.S. Attorney General, introduced the first
so-called “Halliburton Loophole” bill back in 1999 before it was ever known as
such.
Sessions co-sponsored the bill (S.724) with the
climate change-denying Senator James Inhofe (R-OK). The bill called for the
U.S. Environmental Protection Agency (EPA) to exempt enforcement of the Safe
Drinking Water Act as it relates to hydraulic fracturing (“fracking”).
The bill’s language eventually became a provision in
the Energy Policy Act of 2005, known today as the “Halliburton Loophole”
because the company’s ex-CEO and then-Vice President Dick Cheney headed up the
industry-loaded Energy Policy Task Force which helped pen the bill’s language.
S.724 was introduced in 1999, in the middle of the
years-long Legal Environmental Assistance Foundation (LEAF) v. EPA legal
battle, which was heard in the U.S. Court of Appeals for the 11th Circuit.
LEAF v. EPA centered around whether fracking should be
regulated by the EPA as a form of “underground injection” as defined by the
Safe Drinking Water Act. The oil and gas industry, which had legal intervenors,
including Halliburton, in the LEAF v. EPA case, saw Sessions and Inhofe’s
Senate bill as a congressional remedy for the sticky legal situation.
Alabama Fracking Water Contamination
Contamination of drinking water originally spurred the
lawsuit for LEAF, a now-defunct pro-environmental law firm run at the time by
the Florida-based attorney David Ludder.
“In 1988, Ruben DeVaughn McMillian, a LEAF member,
complained that immediately after the injection of hydraulic fracturing fluids
at a nearby coalbed methane well, his private water well, which had always
produced abundant and clean water, became contaminated,” wrote Ludder in a 2000
paper. “Long ‘strings’ of a black oily substance flowed from his tap. A strong
sulphur smell emanated from the hot shower head. His wellhouse rumbled and
hissed. Eventually, Mr. McMillian had to purchase and install a $3,000 water
filter system to ensure that his water was safe to drink.”
McMillian was not alone in having his water contaminated,
Ludder went on to explain.
“At least a dozen other Alabama residents have
complained that coalbed methane production activities have caused a degradation
in the quality of the water produced from their drinking water wells,”
continued Ludder. “To silence others, landowners often evicted or threatened to
evict those that complained.”
In a letter written to U.S. Senator Jeff Bingaman
(D-NM), another Alabama resident, Peggy Hocutt, wrote about her water being
contaminated by fracking by Amoco (now owned by BP) and subsequent personal
health impacts she faced.
“I turned my dishwasher, and faucets on, and got huge
globs of black, jellied grease, bearing the strong odor of petroleum,” wrote
Hocutt. “I no longer wondered, but knew at once, that my suspicions were
correct, and that the underground aquifer, which supplied our drinking water
well was affected by the fracture of the gas well and that I, and my family,
were the innocent victims of drinking and bathing in water, contaminated with
toxic chemicals and radioactive materials, plus the filthy, bacteria filled water,
drawn from the strip mining lake.”
“Baseless Lawsuit”
Despite these examples occurring in his own backyard,
Sessions pointed to LEAF ‘s case as a “baseless lawsuit” as he introduced S.724
on the Senate floor. He went on to say that fracking “has never been attributed
to causing even a single case of contamination to an underground drinking water
source.”
Ludder responded to S.724’s introduction and Sessions’
floor statement in an April 1999 letter written to then-Chairman of the U.S.
Senate Committee on Environment and Public Works, John Chafee (R-RI).
“The bill is sponsored by Senators Sessions and Inhofe
who made statements on the floor of the Senate on March 25 in support of the
bill which contain misinformation and half-truths, most likely the result of
misinformation and half-truths provided by oil and gas industry lobbyists,”
wrote Ludder.
An Oil and Gas Industry Group’s Role
The initial push for a “Halliburton Loophole” didn’t
actually begin in the George W. Bush White House or even with the
Sessions-Inhofe bill. Rather, according to documents provided to InsideClimate
News by DeSmog and Greenpeace USA and reported in April 2016, the Interstate
Oil and Gas Compact Commission (IOGCC) actually implemented the first push for
such a regulatory cut-out.
IOGCC is a collective of state-level oil and gas
regulatory agency heads, coupled with industry executives and lobbyists, which
exists due to a 1935 interstate compact signed by Congress and essentially
functions as an industry lobbying organization. Its roster includes Harold
Hamm, founder and CEO of Continental Resources, who served as an energy adviser
to Trump’s presidential campaign and is in the running to become U.S. Secretary
of Energy.
IOGCC‘s headquarters is located on property adjacent
to the Oklahoma governor’s mansion and just blocks from the Oklahoma State
Capitol building. Oklahoma Republican Governor Mary Fallin is also being
considered for the Energy Secretary role, as well as the U.S. Secretary of
Interior job, and she has twice chaired the IOGCC.
In a 2005 IOGCC newsletter published after the passage
of the Energy Policy Act of 2005, the compact credited itself with getting
“statutory language that had been proposed by IOGCC” included in the
Sessions-Inhofe bill.
As early as 1997, IOGCC had a model resolution on the
books calling for language that eventually became what we know as the
Halliburton Loophole, which may have come out of the working group put in place
to deal with LEAF v. EPA. IOGCC also maintained a website section in the
late-1990s devoted exclusively to the LEAF v. EPA litigation.
About two weeks after the introduction of S.724 in
1999, IOGCC distributed a memorandum to member state governors and official
state representatives — obtained via the Alabama Public Records Law — titled,
“Needed Federal Legislation” and “Immediate Action Needed.” That memo offered a
sample letter template as an attachment, which IOGCC representatives could send
to their state congressional delegations urging them to vote for and pass the
bill.
Also in 1999, IOGCC passed a model resolution calling
for the passage of S.724. IOGCC also legally intervened in LEAF v. EPA...
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