I am in favor of the moratorium extension, and I would like to see EagleRidge adopt green completions, vapor recovery units, and other preferred practices for the four wells that have been the subject of so much controversy. I would like to point out that this is just an instance of a much larger problem – I will name the problem (which you are all aware of) and underline its importance, but I have to leave it up to you all to figure out the legal means of solving it.
The problem is the ghost of technologies past. We live in a society that largely adopts a proactionary posture toward innovation: implement a new technology as soon as it is economically viable and then learn more about its social impacts as we run a real-world experiment. If this approach is to mitigate the unintended negative consequences that will inevitably accompany the intended positive ones, it must have a feedback mechanism. There must be some way to alter the technology in light of the knowledge we have gained in the course of the real-world experiment. I call this process renovation.
It happens all the time. For example, lead was a wonderful way to reduce engine knocking, but then we learned about its health impacts so we phased it out of gasoline. We could also consider the fish ladders that have been fitted on to some dams to mitigate their unintended impacts on salmon migration. It is clearly the case in shale gas development that we leaped first and looked later. Over the past ten years much has been learned about the broader impacts of fracking. And new technologies and practices have been developed and proposed.
But the problem is that renovations can be expensive. Even if they do save a developer money, it may not pay off for a while and there will be resistance to the upfront costs. This is what we see with the New Source Review permitting process for coal-fired power plants. This Clean Air Act amendment requires new pollution control measures anytime a facility is modified. But the language allows for “routine scheduled maintenance” that would not require renovating the system with upgraded pollution controls. As a result significant amount of emissions have been released that could have been prevented. This is the ghost of technologies past: we become chained to industrial practices that we know are bad and that we could easily fix had we been more careful in writing the rules.
And this is your challenge in drafting the new ordinance over the coming months. Much has been said about what kinds of substantive regulations ought to go into it. But the impact of those rules will be diminished if operators can find ways to claim they are vested under older regulations. This is especially troublesome given the likelihood that we will see old wells reworked by new operators. We need to make sure such operations must adhere to best practices at the time rather than antiquated standards made when we knew so much less.