Weekly John Locke Foundation research division newsletter focusing on environmental issues.
This newsletter highlights relevant analysis done by the JLF and other think tanks as well as items in the news.
1. Fracking and the question of property rights
The issue of property rights has moved front and center in the debate over whether and how the state of North Carolina should allow the use of hydraulic fracturing (fracking) in the exploration and extraction of natural gas. The issue that has made apparent Ayn Rand devotes (my description not theirs) out of environmental advocates who typically have had little concern for private property is known as forced pooling. As described in JD Supra Law News:
Forced pooling, sometimes referred to as "compulsory pooling," gives lessees or landowners the right to consolidate adjoining tracts and drill within a producing unit with or without the consent of all landowners within the unit. Forced pooling is similar to eminent domain in that it permits a lessee to apply directly to the state or regulatory body to compel all mineral interests in a producing unit to participate… North Carolina General Statutes 113-393…permits the state to force pool leased and unleased estates into a single drilling unit…
Forced pooling lives up to its name. It is the legal use of force to compel people to use their property in ways to which they might not otherwise agree, an injustice that I have spent my career as a libertarian scholar and policy analyst advocating against. As such, it is my view that the North Carolina statutes allowing these rights violations to take place should be repealed. For years, analysts at the John Locke Foundation have been arguing against the use of eminent domain to seize property for private use. From all appearances forced pooling falls neatly into that category.
Recently, in looking at an array of regulatory issues regarding the use of fracking in North Carolina, the state’s Mining and Energy Commission (MEC) has endorsed the use of forced pooling. What this would mean is that, instead of having to negotiate with individual landowners over the rights to explore and drill under their property, gas companies and neighboring property owners would be granted those rights regardless of the landowner’s wishes.
This decision has rallied the anti-fracking environmental movement to the defense of, and an apparent new found appreciation for, property rights. And as noted, the rhetoric that they are using would make Ayn Rand proud. As one anti-fracking advocate exclaimed to the Raleigh News and Observer, "That’s just unfair…they’re taking control of your property — your neighbors, the government and a commercial interest — and making you sell your resource." And in classic Randian fashion, intentional or not, one anti-fracking advocate analogizes the loss of these property rights with the loss of personal freedoms, stating that, "It’s like saying there’s three people in the room who want a tattoo, and we’re going to hold you down and tattoo your face, also." All I can say is, right on brother. Keep speaking truth to power.
For those "neo-Randians" who may actually be more interested in stopping fracking than consistently defending property rights, a word of caution is in order. Property rights are a double-edged sword. The reason why most of us in the pro-property rights movement were in favor of lifting North Carolina’s ban on fracking, which now has occurred, has nothing to do with fracking per se. Indeed, as an economist, I am agnostic on what are better or worse techniques for extracting natural gas from under the earth’s surface. We have been in favor of repealing this ban because it violates people’s property rights. Just like it is a property rights violation to use government force to get people to do things with their property that they would not otherwise do, it is equally a property rights violation to coercively prevent them from doing things with their property that they would like to do. In fact, there is no logical distinction between the two.
North Carolina’s ban on fracking, just like its law allowing forced pooling, violated people’s rights to do with their property as they wished. If one is going to be in favor of repealing North Carolina’s law allowing forced pooling on the grounds that it is a violation of property rights, then consistency demands that he or she should also favor repeal of the state’s ban on fracking. Property rights are not something that you can pick and choose to defend based on the individual outcomes that you want to achieve. If it is "unfair" to tell some people that they have to allow fracking on their property, it is equally unfair to tell others that they can’t. Of course, so far under the set of laws that have been in place, no one’s rights have been violated with respect to the former, but there are landowners whose rights have been violated for years with respect to the latter.
2. 2013 Ozone Report — On track for the best year on record
The 2013 ozone season began on April 1 and will end October 31. As in the past, each week during the ozone — often called smog — season, this newsletter will report how many, if any, high ozone days have been experienced throughout the state during the previous week, where they were experienced, and how many have been recorded during the entire season to date. According to current EPA standards a region or county experiences a high ozone day if a monitor in that area registers the amount of ozone in the air as 76 parts per billion (ppb) or greater. As noted, the official ozone season will end on October 31. What this means is that North Carolina is one month away from having the best ozone season on record.
During the period from September 23-29, there were no high-ozone days recorded. For the state as a whole, there has been only 1 high ozone day on one monitor recorded in 2013. All reported data is preliminary and issued by the North Carolina Division of Air Quality, which is part of the state’s Department of Environment and Natural Resources.
The table below shows all of North Carolina’s ozone monitors and the number of high ozone days for the week and the year to date.
