Fin Dooley
What do we do?
The SLC educates and equips surface and mineral owners, and all other persons interested in stewardship of land and water about oilfield produced water which is always extremely salty, sometimes twice as salty as the Dead Sea which is 35% salt by mass. North Dakota's Devils Lake is 1% salt. Sea water averages 3-4%. The drilling and producing processes bring up salt, oil, gas and heavy metals with fracing chemicals. The mismanagement of these fluids has destroyed thousands of acres of land in North Dakota. The older, that is the conventional oil industry, rather than the newer unconventional fracing industry is the primary source of salt damage to land and water in North Dakota.
North Dakota is no different than Louisiana, Texas, Oklahoma, Nebraska, Kansas, Colorado, Wyoming, and Montana. All these central Plains states and indeed other oil-producing states from New York to California, face the political and financial challnge of remediating salt contaminated land. Salt water brought up from the bowels of the earth is a byproduct of oil production. Unless it is carefully managed every spill imperils the productivity of land and threatens the web of life in the watershed.
In North Dakota, the most important legal truth is that the state is responsible for every gallon of produced water spilled. The state issues the permits for the drilling of oil wells. Without permits, oil wells would not pump salt water. That is right. No saltwater would ever be produced without state permit. The failure of the state to protect land and water imposes liability upon the state. That liability is not precluded by sovereign immunity. By what is called “state action,” the state permits the generation of a toxic substance and occasions it’s dumping on land or into watersheds. This is not to say that the oil producers, pipeline or trucking companies are not liable. Since the 1950s, many oil companies have gone bankrupt. Salt damage is like the damage a smoker suffers, the manifestation of the damaging effects are delayed. Another example is the cancer-causing effects of asbestos fibers; the damage done to lungs is often delayed, sometimes manifesting as much as four decades later. Likewise, the damage done to productive lands, water sheds and aquifers does not manifest until precipitation is excessive or the buffering capacity of soils overwhelmed. Deminished productivity of soil due to prodiced water is often not recognized for decades. An operator may see natural salinity as the source of the problem when, in fact, natural and produced salts combine to deminish or destroy productivity.
Our task is to educate landowners that they have several legal remedies. We help property owners form alliances so that comprehensive remediation occurs.
Who can be a part of SLC?
Farmers and ranchers have thusfar funded most of the SLC endeavors. Most, but not all, are surface owners. Some of our supporters have grown up on farms, moved away or retired. Often owners of severed minerals are even more removed from the realization of the damage done by produced water than are absentee landowners. When owners of severed minerals understand salt damage to surface estates usually owned by family, friends or relatives, they are alarmed. Our task is to help them understand the process by which the produced water that comes up with their oil is polluting the surface of the land above their minerals. Others who care about salt damaged land and water include hunters, promoters of wildlife and historic preservationists. We intend to make our pleas for support to corporations which identify as green and especially to those that process wheat into bread, barley into beer and beef into brats. The entire American livestock industry, especially the beef industry, depends upon forage grown upon land in the central plains oil producing states.
What is the mission?
SLC’s mission is to prompt comprehensive remediation and enable that process either by legislation or litigation. Legislators need education. The oil industry decision makers do not wish to tell what ithey know about risk to life, limb and land. They know about the cost of remediating salt contaminated land. The API has produced many papers on the matter since 1932. The industry will not volunteer to remediate the damage left by their predecessors. No one, not even they will dispute their profitability. Day by day North Dakota now produces as much oil as Kazakhstan. In future blogs, we will talk more of enterprise liabilty. Ultimately, consumers will be the source of the funds for remediation. That battle of pursuasion will be won in the court of public opionion or in the court of law.
Enterprise liability.
In the 1970's, the entire coal mining industry was called to account for their lack of reclamation of mined lands. Laws were passed requirig a tax on every ton of coal to reclaim Rural Abandoned Mined Lands. Salted land reclaimation must be just as comprehenve and similarly standard based. North Dakota enforces the Federal Surface Mining Acts which are funded by a per each ton of coal production tax in the form of the Rural Abandoned Mine Program (RAMP). North Dakota should lead the nation because we have the most potent legal tools the Anglo-American Legal system has evolved, the Public Trust Doctrine. Our first blog will tell more.
Our mission then is remediate old and recent salt spilled lands. The task is more complex and is likely to be more expensive than remediation of coal mined lands.