The Ethics of Banning Fracking

[This is an open-source argument - I plea with anyone to help me think through this...I am struggling here!] As shale gas development continues to encroach on communities across the nation, municipalities are asking themselves: Should we ban fracking and can we ban fracking?

The latter question is the legal one and the answer seems to be a qualified ‘yes.’ Courts in New York have ruled in favor of local control – claiming that towns are within their authority to amend zoning laws to keep out natural gas development. This will continue to be a live question, especially following recent bans by Longmont, Colorado and towns in Ohio.

The former question is the ethical one. Are these laws just? Is a ban the right thing to do?

It’s important to ask, because a ban has victims. Of course, the natural gas industry will be harmed. Justifying a ban will require articulating some morally relevant reason(s) for singling out that industry for prohibition. Otherwise, it is baseless discrimination.

More importantly, mineral rights holders will not be allowed to use their private property. We cannot simply affirm a ban on the grounds that it represents the will of the majority (interestingly, a bipartisan majority in the case of Longmont, CO). The majority should not be allowed to coerce minorities simply by virtue of their brute numbers. So justifying a ban will also require articulating some morally relevant reason(s) to impose the will of the majority on a minority.

In other words, we tolerate all sorts of industries and all sorts of private property uses. How is natural gas different from a chemical or concrete plant or paper or steel mill? Why ban development of mineral rights when we allow development of surface rights into strip malls, parking lots, and NASCAR stadiums? Why do we think grassroots-driven fracking bans are “what democracy looks like” when we don’t even think about democracy when companies come into “our town” to set up telephone lines or to build fast food restaurants?

In this case, the reason is grounded in public risks and harms. It is one thing for a private property owner to cause some minor nuisance to the surrounding community – there are ways to mitigate that. But imagine that the minority required an industrial process to enjoy their property that, without a doubt, killed thousands of their neighbors and fellow community members. Clearly such certain and egregious harm to others would justify prohibiting this use of private property and the industry it relies on.

Now, I have not actually seen a good ethical justification for fracking bans. But I think most proponents of bans have something like this in mind. The hazards posed by fracking justify the denial of mineral rights. They may not amount to certain death for thousands, but they are far more than minor nuisances that lend themselves to regulatory tweaking. The hazards are sufficient to make fracking unlike other industries that we regulate rather than ban.

I think this is a crucial point for any ethical justification of a ban – that regulation is insufficient. I have had people tell me, roughly, “no amount of regulations can prevent harm and suffering.” I think this can mean either “no rules can militate against the inherently toxic nature of this activity” or “maybe there are rules that could make it safe in theory, but they will never be enforced in reality.”

I have been advocating a more moderate position of improving regulations to make fracking safer. But I have been impressed with the number of times I have been told “safe fracking is an oxymoron.” This is an emerging position on the national scale. In an interview with Rolling Stone, Sean Lennon claimed that “fracking for gas is inherently dirty and dangerous” and that “no amount of regulation can make fracking safe.” Sandra Steingraber has also insisted that “safe hydrofracking is the new jumbo shrimp.” She writes, “safe fracking is an oxymoron even with the best of laws and with their strongest enforcement.”

This might mean that, no matter what the rules, fracking will always carry the risk of negative consequences. If that is the case, I agree, but it doesn’t do the moral work we need – namely, it does not differentiate fracking from other industries and technologies. Flu shots carry inherent risks. So do electricity, lawnmowers, airplanes, processed foods, and pharmaceuticals. So does driving, as Ralph Nader claimed in his 1965 book Unsafe at Any Speed: The Designed-in Dangers of the American Automobile. The US Census Bureau reports that nearly 34,000 people were killed in automobile accidents in 2009. I haven’t seen any comparable mortality figures from fracking.

We have not banned all industry and all technology, despite inherent dangers, because safety is not the only thing we value.

But maybe the oxymoron claim means that there is no such thing as an acceptably safe fracking: sure, risk is unavoidable, but there is a limit to what we can and must tolerate. Perhaps fracking is so much more dangerous than other technologies and industries that we simply ought no longer to pursue it. This is, I think, the position that many hold. It explains Canterow’s claim that fracking is the earth’s final showdown. Her case for a ban depends on singling fracking out as exceptionally catastrophic.

But is it? I have been chastised by both sides for my gullibility when I claim that I don’t know an answer to this question. One side says that I have been hoodwinked by deep-pocketed merchants of doubt. The other side says I have been swayed by irrational phobias. There are two worldviews at work here and I haven’t found any neutral ground from which to judge both of their claims. They both claim that science and truth is on their side.

Maybe this stalemate of dueling experts could be avoided by justifying a ban not by what we know, but by what we don’t. Fracking might be catastrophic and until we know more we ought not to pursue it. But that won’t avoid the duel, because the industry side claims that we know plenty already to rest content with its relative safety. And that really only justifies a moratorium, not a ban.

But maybe the oxymoron claim is about more than levels of safety. Maybe it points to a deeper concern about autonomy. Perhaps it is saying something like: WE, the people of this community, do not find it acceptably safe, and WE are the decision makers who count. The general principle would be something like: no one shall incur risks that they have not freely consented to; or no innovation without representation.

Yet we regularly bear risks that we don’t consent to (I don’t recall consenting to the risks created by nuclear weapons or plastics or GMOs). So, what would make fracking different? Furthermore, this “WE” is the majority, so there is a need to justify their will on the grounds of something more than just raw numbers. Imagine the majority had been subjected to a propaganda campaign that smeared an industry with unfounded accusations. Then they ban it on that basis. Their might, in such a case, would not make right. Once again, this throws us back on the science of proving that fracking is so dangerous as to justify the denial of mineral rights.

Or it leads to the claim that the siting of hazardous industries shall be granted only under the condition that those most vulnerable (those nearest to it) give their free and informed consent. I like this idea, but it is not a ban. It would allow fracking as long as a deal could be struck that satisfied all parties involved.  

There is one last salient difference between natural gas and most other industries.

This industry can occur anywhere there is gas under the soil. It is not restricted to particular zoning classifications, because the industry comes in to extract minerals that nature had long-ago tucked away here and there regardless of any political boundaries. But when a heavy duty truck factory comes to town, it must obey the zoning categories that make human sense in terms of which uses belong next to one another. So, fracking can suddenly bring hazards to neighborhoods where no one signed-up for an industrial neighbor.

Perhaps a ban is a response to the geological accident that put gas under schools, homes, parks, and hospitals rather than just under the appropriately zoned areas. But a ban is not necessary for this correction. Fracking could just be zoned industrial (and I think it should be). Again we are thrown back on the necessity of claiming that it is simply too dangerous to permit at all, anywhere in town (or in the state in the case of calls for state-wide bans).

So, that’s where I am at this point. To justify a ban, we have to provide morally relevant reasons for singling out this industry and denying mineral rights. Do we have those reasons? If not, then I don’t think it is right to ban fracking just because we can. But if we do have those reasons, then we should pursue this option.