Informed Consent and Compulsory Integration

We have all had the experience of going to a new doctor’s office for the first time and before we are seen we fill out forms in which we give the physician permission to examine us, prescribe treatments, suggest tests or share our medical records with appropriate other professionals. Prior to an outpatient procedure or a surgery in the hospital, a doctor explains the risks and benefits and answers our questions about alternatives, side-effects etc. Based on this communication we either give our consent or refuse the treatment. This process, which is a basic concept in medical practice, is known as informed consent.

Informed consent is prevalent in many parts of our lives. In the grocery store, all ingredients are on the labels, allowing us to make an informed decision. Although we might get sick of the drug ads on TV, they also inform us of possible side effects. The notion of informed consent is so fundamental to how we are able to make decisions that it is shocking when basic transparency is withheld from us.

The gas companies operate behind a veil of secrecy. They are not required to reveal what chemicals they mix with water, even though they are, first, pumping millions of gallons of this toxic mixture into the ground to “frack” the shale and then storing what is recovered in large pools on the surface where toxic compounds are mechanically evaporated. As you can see in the aerial photograph taken in Pennsylvania these pools are often in disturbing proximity to houses.

This practice runs counter to the open communication and accountability that is at the heart of the concept of informed consent. I want to emphasize that even though this week’s column is basically about ethics, even if the gas companies are eventually forced by the DEC to reveal all the chemicals they are using, just knowing what they are is not a solution. Many of the carcinogens used (next week’s column) make fracking a practice that is dangerous to our health and the environment.

Another practice that conflicts with an individual’s right to give his or her consent is called Compulsory Integration. The moment it was explained to me my immediate thought was, “in America? No! you have to be talking about Russia or China!”.

Although it sounds like a concept from the struggles of the civil rights era, perhaps something concerned with enforcing basic freedoms, actually, it is quite the opposite.

Compulsory Integration means that when gas companies create well spacing units, all they have to control by lease is 60% of the land. The other 40% is “integrated,” meaning whether the landowners consent or not, their land will be fracked. Non-participation is not an option. Let me repeat: non-participation is not an option. Simply put – if my neighbors have signed leases and the gas company wants to frack horizontally under my land, but I want to protect my family, animals, land and water from drilling and the effects of chemicals injected into the ground, evaporated into the air, dumped on fields, roads, and in streams, I cannot.

The gas companies are allowed to do this under the Compulsory Integration provisions of the New York Oil, Gas and Solution Mining Law of 2005, according to Christopher Denton, an Elmira attorney who has represented dozens of landowners in compulsory integration cases. As Mr. Denton explained, the original intent of the law had an element of equality to it. In the old days of conventional gas or oil extraction you had a pool or a reservoir underground. That pool didn’t recognize property boundaries. Because these formations were under pressure, all it could take was one neighbor drilling into them to empty them, essentially depriving the other landowners, whose property was also on top of the formation, from obtaining their share of the profits. The intent of this statute was to make sure that adjacent landowners could not be deprived of the value under their land and to make sure profits were shared proportionately. Mr. Denton said that there was no mention of high volume slickwater horizontal hydrofracking in the statute.

A law whose intent was originally about fairness is now used by an industry to rob us of our rights and freedoms, our right to clean air, clean water, health, and our sovereignty as landowners to give our consent, or not, freely. This is eminent domain practiced by private industry on a mass scale and in my opinion, a violation of some of our most basic constitutional rights. 

___________________________________________________

For more on this issue, Cornell Cooperative Extension has an impressive online resource of educational materials. For an overview of the available resources go to:  http://ccetompkins.org/environment/shalegas/gas-drilling-library

On this page scroll down and you will see an entry for Compulsory Integration that will take you to some very informative video presentations. 

________________________________________________________________

Moratorium and Ban update: In New York State there are currently 76 communities with either a ban or moratorium in place. 37 more are in the process of study, discussion, and/or drafting legislation. The newest towns are: Nunda and Mount Morris (Livingston Co), Wayne (Steuben Co.), Moravia (Cayuga Co.), and Mendon (Monroe Co.) ; all have enacted one-year moratoriums. The Town Board of Caroline (Tompkins Co.) passed a resolution to prepare a draft local law that prohibits unconventional gas drilling and associated high impact activities.