By Zachary Grobe
Though the Marcellus Shale’s vast subterranean reserves of natural gas were once written off as prohibitively expensive and difficult to extract, unconventional drilling methods and fracturing techniques (i.e. “fracking”) have allowed companies to profitably mine this fossil fuel. Drilling operations have expanded rapidly, bringing with them lucrative business opportunities. Though often touted as promising high returns for landowners and a revitalized economy for rural communities, fracking has not been uniformly welcomed by those citizens in a position to lease their land for drilling. Concerns about environmental impacts, from water contamination to noise pollution, have fostered a growing anti-fracking movement in current or prospective sites of development, particularly since most of those areas consist of forests and farmland. Additionally, those industries adjacent to fracking have raised similar environmental concerns. A major component of the slurry injected into the ground as part of the fracturing process is comprised of sand, as it works well as a proppant, i.e. a material that holds open fractures. Sand mining has consequently exploded as an industry, especially in Wisconsin.
In response to residents’ and activists’ concerns, companies have worked tirelessly to influence the discourse around natural gas development, often by insinuating themselves into the communities they aim to exploit. In particular, corporations present themselves as paternal figures, dedicated to generously providing resources and stability for the wellbeing of the (typically rural) towns in which they are establishing their presence. This rhetoric often takes on a nationalist bent, as Jessica L. Rich observes, by invoking the figure of the patriot, soldier, and the “New Frontier” (297). She cites one particularly salient example, an advertisement that declares, “‘Natural gas drilling here is helping America become less dependent on foreign oil, and with that, comes a little piece of freedom we can pass along to our kids’” (qtd. in Rich 299).
Similarly, Fairmount Santrol, a sand mining company, begins tours of its operations with a brief presentation on the history and enduring importance of the industry. Fairmount’s presentations include a slide depicting the “Mineral Baby,” described by Thomas Pearson as “a cartoon drawing of a baby surrounded by figures that indicate the amounts of various natural resources a single American will consume over the course of his or her lifetime,” including “1.18 million pounds of stone, sand, and gravel” and “6.8 million cubic feet of natural gas” (Pearson 128). The message implied is, of course, that the extraction of natural resources is an inextricable part of enabling the future of the child and, by extension, the wellbeing of the next generation of Americans.
The companies’ paternal role is complimented by its position as a “neighbor,” a figure frequently invoked when action is taken to mitigate the alleged side effects of gas drilling. In the widely influential film Gasland (Josh Fox, 2010), Colorado residents Amee and Jesse Ellsworth were provided with drinking water after their well became contaminated. Noble Energy, Inc. did not take responsibility or frame their actions as a form of recompense, but rather steps taken in the interest of being a “good neighbor.” This same rhetoric was used following the Chesapeake Energy ATGAS Blowout, during which over 10,000 gallons of flowback were discharged from a well in Bradford, Pennsylvania, on April 11th, 2011. After the water quality in a nearby residential well deteriorated, the company spent $25,000 to seal a fracture in the well and install a reverse-osmosis filtration system. Denying any complicity in the affair in a subsequent press conference, Stephanie Timmermeyer of Chesapeake Energy described these actions as taken “to be a good neighbor” (“Chesapeake Energy”).
Furthermore, the American Petroleum Institute issued “Bulletin 100-3” in July of 2014, laying out best practices (or “Community Engagement Guidelines”) as part of the industry’s “commitment to being a good neighbor throughout the full project life cycle” (American Petroleum Institute). Such language, which marks a given company as both above and part of the community “stakeholders,” also works to preempt particular modes of redress. In 2012, for example, when Glacier Sands was denied a mining permit in Buffalo County, the company’s attorney lamented the decision and expressed that “‘It is Glacier’s hope to resolve this matter voluntarily without the need for litigation, which should always be a last resort between neighbors and friends’” (qtd. in Pearson 149).
Despite the claims that they lay to neighborliness, much of the corporations’ actual day-to-day work consists of undermining the very social structures of which they assert they are a part. As Melissa Troutman details in the documentary film Triple Divide (Pribanic and Troutman, 2013), gas companies pressure potential lessees to agree to allow drilling by fostering a sense of competition or stoking fears of missing out on lucrative opportunities. If adjacent landowners have signed leases, the gas under a dissenter’s property can be acquired anyway, and thus it would make sense for them to sign as soon as possible rather than forfeit the benefits others could acquire first. Underlying these specific behaviors are two key legal principles upon which the gas companies capitalize, especially when deploying their strategy of sowing division: the “rule of capture” and “forced pooling,” both of which allow companies to work around conventional private property rights and particular American ideals of land ownership.
The “rule of capture” describes a key legal principle of property ownership concerning one’s rights to natural resources on a given parcel of land. As Heidi Gorovitz Robertson explains in Georgetown Environmental Law Review, “In property law, ferae naturae refers to ‘wild animals and other resources that do not respect human delineated property boundaries.’” Ferae naturae must be captured—not just present or pursued—in order for the legal rights and protections associated with ownership to be in effect. From a legal perspective, oil, gas, and similar resources have an “often-migratory nature,” and consequently are subject to the rule of capture. Curiously, the principle extends to fracked gas, as prior legal rulings did not specify whether the movement of fossil fuels must be naturally-occurring or artificially induced. Consequently, it is completely legal to extract gas that is made to flow from underneath unleased property.
Moreover, a dissenting landowner can be legally forced into signing a lease through mandatory pooling. Joseph Todd, a resident of Big Flatts, NY., and a landowner whose half-acre property was involuntarily integrated into a drilling unit, described the principle as “‘eminent domain for gas drillers’” (Baca). Tom Corbett, the former Governor of Pennsylvania and a notoriously pro-drilling politician, agreed, remarking that “I do not believe in private eminent domain and forced pooling would be exactly that” when speaking at a legal forum at which 400 drilling representatives and supporters had assembled (qtd. in Nootbaar). An especially concerning aspect of this practice is how little adjacent land companies need to have secured in order to enact a compulsory unitization: in New York (which currently has a moratorium on fracking), only 60% of the land necessary to drill needs to be secured before the state will consider a petition for mandatory pooling. In Virginia, a mere 25% is required before a permit may be granted (Baca). As of this writing, 39 states have laws allowing companies to force landowners into leases.
The crises such exploitative and coercive behavior creates within a community profoundly disrupts a very American notion of what a “neighbor” is, especially given that this figure occupies a unique and prominent position within the United States’ idiosyncratic culture of property ownership. Since the nation’s inception, private property has invariably been figured as “central to democratic political structures” (Jacobs 53). As Harvey M. Jacobs notes, the United States began forming while Europe was still operating under feudal principles. Land was largely held by an elite class, and the average person’s prospects of owning property were slim to none. In comparison, “America offered an alternative. It was a place where any white male immigrant could get ownership of land and, with that land as capital, make a future for himself” (54). This ideal reaches its apotheosis in Thomas Jefferson’s glorification of the figure of the “yeoman farmer,” which for him “linked the individual’s right to own and control property with the very existence and viability of democracy” (54). In owning his own land, a farmer could be self-sufficient, indebted to or reliant upon no one else, thus becoming the ideal democratic subject.
Following the end of America’s westward expansion, federal policy shifted its primary focus from land acquisition to resource management. This change eventually led to “a literal explosion of laws, policies, and regulations at the national, state, and local levels that affected private property,” including a vast number of laws protecting air and water from pollution. The growing interference of the state fostered the “so-called property rights movement,” which, in following a conservative interpretation of the founders’ principles, asserts that “[t]hrough ownership and control of property, the owner has material conditions that allow him to be literally free.” Extending Jefferson’s figure of the yeoman farmer, such groups argue that “[w]ithout the availability of property, liberty and democracy in the American configuration are not feasible.” Yet, as Jacobs notes, “legislatures and the Court seem to continuously affirm the right of government over the property rights of individuals” (59).
Given the tension between corporate and state interests and private citizens, the erosion of a specifically American ideal of land ownership, the incursion of mining interests into vulnerable communities, and the manipulation of residents through coercive or even forced leasing practices, what is the status of the neighbor and neighborliness under such conditions? As Suzanne Matteo, resident of New Bedford, Pennsylvania declares in an interview about Hilcorp’s attempt to forcibly pool land in the area, “It’s a ploy to pit neighbor against neighbor . . . [a]nd, you know, what better way to get people to hate each other, than money” (CBS News). Yet, I argue, the figure of the neighbor also comes to be one of hope and sociality as fracking and its associated social, environmental, and legal crises throw into disarray conventional conceptions of community and ownership rights and compel new ways of thinking about collectivity and belonging.
As a case study, I turn to Dryden, New York, a small town whose residents successfully organized to prevent fracking. Their efforts are detailed in the short documentary film “Dryden – The Small Town that Changed the Fracking Game,” produced by the nonprofit environmentalist law organization Earthjustice. The film opens by interviewing local resident Marie McRae, who recounts how she was manipulated into signing a lease: after repeated in-person visits, letters, and phone calls, the company representative resorted to outright coercion. He told McRae that all of the neighbors around her had signed, and if she did not follow suit, the company would proceed regardless. Regretting her choice and its potential effects on the nearby land, McRae began educating others. When Deborah and Joanne Cipolla-Dennis moved to the area to build their own home, they, too, were approached by a landman in much the same way as McRae was. Having already fallen prey to the company’s manipulations, she took Joanne aside after a town meeting. As Joanne recalls, she replied to the unexpected news that her home was “in the midst of a gas development zone” by replying, “I don’t know what that means, but I’m sure you’re gonna teach me.”
Though small communities like Dryden cannot regulate industries and thus lack the power to ban fracking outright, the citizens of the town successfully foreclosed the possibility of drilling through the use of zoning laws. Their triumph was the end result of significant community mobilization. McRae describes the process as one of neighborly solidarity: “We went door-to-door, talking to our neighbors, talking to people we’d never met.” At the heart of the operation was an unlikely figure: Martha Ferger, an 88-year-old retired scientist. As Deborah Cipolla-Dennis remarks, “[S]he knows everybody! What she did was sit at her table with the phone and called everybody she knew and told them they had to come to her house and sign [our] petition. And it’s amazing! She got the most number of signatures.” By the time the concerned residents presented the petition to the town council, one out of every ten people in Dryden had signed.
The council voted unanimously to impose land use prohibitions, effectively banning fracking within town limits. Reflecting on the successful effort, McRae remarks that “My voice by itself carries very little weight, but when I join my voice with my immediate neighbors, with the larger community that I live in, we all—together—have a voice that’s loud enough for our elected officials to hear.” Joanne follows McRae’s remarks with her own final reflection: “Every community across this nation can do exactly what Dryden did. You have to care about each other. That is the American Dream. Right? Yeah. That’s the American Dream. You count on your neighbor.”
The underground breaking of rock finds its above-ground analog in the landman, who works to fracture a community, pitting neighbor and against neighbor so that natural gas companies can expand their operations and increase their profits. Yet, the very discursive figures that such corporations deploy also come to serve as sites of resistance. As seen in Dryden, the neighbor comes to serve as a kind of leveling figure: to have a neighbor means that one is also a neighbor. A citizen’s responsibilities to a larger social body cannot and do not end at their property lines, but rather, social relations work across such divisions and give rise to new understandings of space and place. The residents of Dryden developed a sense of collective responsibility, understanding that they all depend on the wellbeing of their surrounding environment. The danger of place-loss and its effects on community compel new understandings of the relationship between the individual and the whole, imbuing figures such as the neighbor with renewed possibility, transforming it into a site from which new forms of sociality and belonging might emerge.
American Petroleum Institute. “ANSI/API Bulletin 100-3.” July 2014.
Baca, Marie C. “Forced Pooling: When Landowners Can’t Say No to Drilling.” ProPublica, 18 May 2011, http://www.propublica.org/article/forced-pooling-when-landowners-cant-say-no-todrilling.
CBS News. “Pennsylvania Law Pits ‘Neighbor against Neighbor’ in Fracking Feud.” CBS This Morning, 8 Apr. 2014, http://www.cbsnews.com/news/fracking-for-all-pa-law-pits-neighboragainst-neighbor-in-drilling-fight/.
“Chesapeake Energy Helps Pennsylvania Afford Study of Natural Gas Blowout.” Public Herald, 2011, http://www.publicherald.org/chesapeake-neighbor/.
“Dryden – The Small Town That Changed the Fracking Game.” YouTube, Earthjustice, 2 May 2014.
Fox, Josh, director. Gasland. Amazon, HBO, 2010, http://www.amazon.com/gp/video/detail/B005C0DHEY/ref=atv_dp_share_cu_r.
Jacobs, Harvey M. “U.S. Private Property Rights in International Perspective.” Lincoln Institute of Land Policy, Property Rights and Land Policies, 2009, pp. 52–69.
Nootbaar, Mark. “No Forced Pooling Says Corbett.” WDUQ News, National Public Radio, Inc. , 26 Apr. 2011, http://www.wduqnews.blogspot.com/2011/04/no-forced-pooling-says-corbett.html.
Pearson, Thomas W. When the Hills Are Gone: Frac Sand Mining and the Struggle for Community. University of Minnesota Press, 2017.
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Rich, Jessica L. “Drilling Is Just the Beginning: Romanticizing Rust Belt Identities in the Campaign for Shale Gas.” Environmental Communication, 9 Mar. 2016, pp. 292–394., doi:10.1080/17524032.2016.1149085.
Robertson, Heidi Gorovitz. “Get Out From Under My Land! Hydraulic Fracturing, Forced Pooling or Unitization, and the Role of the Dissenting Landowner.” Georgetown Environmental Law Review, vol. 30, no. 4, 2018, go.gale.com/ps/i.do?p=AONE&u=nysl_sc_cornl&id=GALE%7CA568118684&v=2.1&it=r&sid=ebsco