Wednesday, November 21, 2012

When is a Fracking Ban Justified?

I have been thinking about the ethics of banning fracking. Other cities and towns are doing it, so why not Denton? I'm interested here not in whether we CAN (legally get away with it) but whether we SHOULD (morally is it the right thing?).

I don't think a city should ban fracking just because that is what a majority of its citizens want. Majorities have a history of wanting some pretty unethical things, which is why the protection of minority rights plays such a large role in America's struggle for justice. In this case, mineral holders are the minority.

So, condition #1 for justifying a ban: We need some good reason for denying mineral holders the use of their private property.

Condition #2 is: We need some good reason for singling out shale gas/fracking as an industry/technology that requires prohibition rather than (as with other industries/technologies) regulation.

We don't satisfy these two conditions with the claim that fracking is inherently unsafe. So are electricity and airplanes, but we generally accept the inherent risks of those industries and technologies.

Rather, we need to say something like fracking is so dangerous that it could never be made acceptably safe (the benefits it brings would never be worth the costs it exacts -- necessary costs that could not be mitigated through regulations).

And/or we need to say that fracking is different in imposing risks on people who do not consent to those risks. This does seem true of an industry that rather uniquely sets up operations very close to homes, schools, parks, and hospitals because that is where the minerals are. Maybe the mineral holders and corporations are unjustly imposing risks and harms on others and the only way to protect them is via a ban.

I'm not sure, though, that a ban is justifiable on grounds of informed consent and autonomy. If this is the principle behind a ban, it seems more compatible with a policy that would allow fracking only under the condition that those exposed to the risks consent to the operation. Just as unregulated fracking infringes on one's freedom to choose against that risk, a ban seems to also infringe on one's autonomy or freedom to take calculated risks. But maybe because those exposed to risks are so widespread, there is no practical way to obtain all their informed consent, so a ban is necessary. If entire watersheds and ecosystems are really jeopardized by fracking, then that would justify a ban.

There is, I think, a third condition necessary to justify a ban. Condition #3: A city that bans fracking must eliminate its consumption of natural gas.

This seems necessary to avoid the charge of NIMBY-style hypocrisy. Italy is a good example here. They (a majority of Italians) have decided that nuclear power is too risky - all four of their nuclear plants have been decommissioned and plans to build new plants were shelved after the 2011 Fukishima disaster. Yet Italy imports 10% of its electricity from nuclear plants located in other countries. The implicit moral claim is: "Let others suffer the harms so that we may enjoy the benefits."

Should a city ban fracking but continue to consume electrons generated from fracking in Denton (or anywhere else)? I don't think they can without making an unjustified moral exception of themselves (that somehow their health and safety are worth more than that of others) - after all, they are the ones who decided fracking was so dangerous. Moral consistency demands not just that their ground be free of wells but that that their grid by free of electrons that bear the immoral stain of fracking.

So there are my three conditions for justifying a ban: show why minority property interests are justly denied; show why this industry is so dangerous as to require prohibition (rather than mere regulation); and make the ban complete by forbidding consumption of the commodities resulting from fracking. Otherwise a ban constitutes tyranny of the majority, unwarranted discrimination, or hypocrisy. But if we can meet these three conditions then Denton should pursue a ban.


  1. Second condition recalls the Precautionary Principle, which I generally think is not a good guide for public policy, though I'm open to debate. But I think the third condition needs more definition. Economics of power generation are such that if Denton receives no power from gas from fracked wells, it might well get it through conventional natural gas, or conventional oil, or coal... not sure what the next-cheapest source is in your area. Given that each of these also has impacts in both the production and the burning, shouldn't the third condition really be that the impacts of drilling and burning the fuel stay or at least concentrate within Denton's borders?

  2. All Denton needs it a plan to move to clean energy it need not happen all at once. I am 100% off the gas pipe. It's not that hard to do.


  4. I can appreciate your arguments Adam but first we should clarify that mineral owners are not using their private property many times. Why do mineral owners have more of a claim of "private property" than a surface owner. The minerals rights are a priviledge of the past. Many surface owners, such as my family in East Texas, have lived on the land for over 40 years but the minerals are in family trust. The people who benefit from the family trust may never have set foot on the land nor do they want to. Why is it not unethical for the lives of the surface owners to be disrupted and their property values plumment due to priviledges of the past?
    Secondly, with the advances of hydraulic fracturing why couldn't the activity be conducted in a more concentrated area which could be better monitored and regulated? Why next to school, homes, hospitals, and parks? The royalites could be split with the mineral owners of the land from which the gas is obtained. The problem with current regulation is if you choose to live in a rural setting you are not protected in the same manner as an urban dweller. It is "free for all" in Wise County and no one is concerned about the surface owners water wells, property values, or quality of life. So why is not unethical to benefit from the use of natural gas when a this portion of the population is suffering disproportionately?
    If you just want to take ethics out of the equation then natural gas drilling should occur anywhere and everywhere.
    The boom of natural gas well drilling has given way to common sense.
    Banning an activity will always have it's pros and cons. When I first started nursing the nurses could smoke at the nurses station. Was it unethical to take this priviledge away? What evidence is needed before an activity is considered hazardous? Twenty years from now do we want to look back and say "it was unethical" to ban or more closely regulate such a controversial activity as hydraulic fracturing.
    I did not become a "fractivist" because I was bored or had nothing better to with my time. Living thru the drilling of 7 wells so close to my home has given me a clear picture of the reality of hydraulic fracturing. I believe if bans occur it will bring the drilling companies into a more "compliant" state of mind and they will be more will to provide the protections we deserve. Sometime you need to use a bigger stick.

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