Above photo: By Jared Rodriguez.
Is New Mexico’s state government aiding and abetting fracking companies’ damage to humans and the environment?
Penny Aucoin, her husband Carl Dee George, their son Gideon and their daughter Skyler have had their lives devastated by the fracking industry.
There was no oil and gas infrastructure where they lived when they moved to Carlsbad, New Mexico. But six years ago, during a massive expansion of drilling across the Permian Basin that spans West Texas and southeastern New Mexico — one of the most prolific oil and gas basins in the United States — the drilling began.
It was so loud they had to provide hearing protection for Skyler. Then when the flaring commenced, dead birds began literally falling out of the sky right next to their home, and one of their chickens died.
Shortly after that, Penny began feeling the health impacts. Blisters appeared on her face as more drilling pads were installed, some of them literally across the street from their home. Their bedroom walls shook as the drilling pads were constructed nearby, installing both a physical and psychological invasion on the family home. Skyler started having nosebleeds, respiratory issues beset them all, and Penny had ongoing headaches. Carl discovered a nodule on his tongue.
Then, when a pipeline near their home burst this January, they, along with their home and their animals were showered with toxic chemicals. When they walked outside to investigate the bang they heard, which was followed by gushing fluids, they believed it was raining. But what they thought was rain was, in fact, “produced water,” the byproduct of fracking. According to the American Geosciences Institute, this toxic byproduct is full of corrosive salts, oil residues (oil is a hazardous material), fracking chemicals, bacteria and dissolved organic compounds. These proprietary chemical blends created by industry and protected under trade secret law are highly carcinogenic.
Since then, the family’s days are filled with doctor’s appointments, and Carl, a veteran, regularly visits the VA in Albuquerque, hoping the nodule on his tongue doesn’t turn into cancer. Any dream of their life returning to what it was before the oil and gas invasion is long gone, and now it is a matter of survival.
They are just one family who are paying the price for a virtually unregulated drilling and fracking industry that has created one of the largest environmental disasters of modern times.
A report by Physicians for Social Responsibility released in 2019 outlines, in detail, the dire health impacts caused by fracking. The many public health effects it cites include these examples:
In Pennsylvania, hospitalizations for pneumonia among the elderly are elevated in areas of fracking activity, and one study found significantly elevated rates of bladder and thyroid cancers. In Colorado, children and young adults with leukemia were 4.3 times more likely to live in an area dense with oil and gas wells. Drilling and fracking operations in multiple states are variously correlated with increased rates of asthma; increased hospitalizations for pneumonia and kidney, bladder, and skin problems; high blood pressure and signs of cardiovascular disease; elevated motor vehicle fatalities; symptoms of depression; ambulance runs and emergency room visits.
The Environmental Defense Fund (EDF) recently released a Permian Basin-wide study on the emissions of methane and other volatile organic compounds. The study found methane releases across the Permian at a rate three times that which was reported nationally by the Environmental Protection Agency. Furthermore, the EDF found a leak rate 15 times higher than the goal set by the Oil and Gas Climate Initiative, a group of 10 oil and gas CEOs representing one quarter of the industry’s entire global production. The group committed to investing in projects that will accelerate commercial deployment of low-carbon energy technologies. The amount of wasted gas alone could meet the energy needs of every home in Dallas and Houston combined, and the EDF estimates these methane emissions cost New Mexican taxpayers as much as $43 million in revenue, annually.
It is against that backdrop that a Harvard nationwide study recently revealed a link between air pollution and higher rates of COVID-19 deaths. “The results of this paper suggest that long-term exposure to air pollution increases vulnerability to experiencing the most severe Covid-19 outcomes,” the authors wrote.
Direct assaults from air and environmental pollution, noise impacts, and chemical exposure for anyone living within 200 feet of oil and gas infrastructure are known to bring cancer, respiratory diseases, asthma, heart disease, and injury to small children, pregnant women and fetuses.
Now, in addition to these health threats, Penny Aucoin and her family are faced with the reality that they are more than twice as likely to contract COVID-19 compared to people not living among oil and gas drilling and fracking operations.
Adding insult to injury, Williams Production and Exploration Energy, Inc. (WPX), based in Tulsa, Oklahoma, and the company responsible for the burst pipeline, offered to buy them a new chicken coop and water bowl, and told them to keep the chickens off the ground for five days. That advice was contradicted by people from the Department of Health, the Eddy County Extension Office (Agriculture), and their vet who all deemed their yard too dangerous for the animals. Aucoin moved the family’s chickens and goat to the vet after the pipeline burst. Those officials, and the vet herself, all told Aucoin to have the chickens put down and not to eat the eggs. “They also told us not to grow food on the land because it is contaminated,” Aucoin told Truthout.
While WPX paid for the boarding at the vet, “they only offered us an insulting amount of money for compensation for everything,” Aucoin said. “But that doesn’t compensate us for the property damage, nor does it take into account our ongoing sickness, or having to move and start all over.”
“Now, because the land is contaminated, we can’t grow food or eat from the animals,” Aucoin said. “But we are still here, seven months later, and we are still in it. They didn’t evacuate us, or remediate the property.”
WPX does not have to release relevant health and toxicity information to the family about the contaminated water that rained down upon them because the makeup of this so-called “produced water” is considered proprietary.
Aucoin and her family have received no assistance from the State of New Mexico, and no actions have been brought against WPX by New Mexico Gov. Michelle Lujan Grisham and her relevant governmental “regulatory” groups. The Oil Conservation Division (OCD) performed no independent investigation of the incident and closed the case against WPX without a warning, fine, civil or criminal penalty, or revocation of their permit to drill.
A History of Environmental Destruction
Since Governor Lujan Grisham took office in early 2019, there have been 87 incidents, some of them major, by WPX alone.
WPX has a history of egregious failures, which wouldn’t have been possible without complicity of several New Mexico authorities, including the governor.
In July 2016, 36 of WPX’s oil and “produced water” tanks caught fire in San Juan County, setting off several explosions and causing the closure of a nearby highway. New Mexico’s OCD had approved the development of the site, despite warnings about the company.
“WPX Energy scored near the bottom of the industry in a recent scorecard report published by investors benchmarking 35 companies on their disclosed efforts to mitigate key impacts,” advisory firm Green Century Funds wrote in 2015, “and has faced controversy in the past over allegations that it irreparably contaminated local drinking water in Pennsylvania.”
In November 2019, a pipeline failure at a WPX well caused a large amount of “produced water” to be released into a nearby pasture. Despite the fact that an initial estimate of thousands of gallons of potentially carcinogenic produced wastewater were released onto an adjacent farm, neither the governor, New Mexico Environmental Department (NMED), Energy Minerals Natural Resource Department (EMNRD), nor OCD required WPX to even notify the adjacent property owner of the potentially hazardous release. OCD later downgraded the total amount of “produced water” that was lost to 1,260 gallons, but the case remains open.
Of the aforementioned 87 self-reported spills in New Mexico that have occurred since Governor Lujan Grisham took office, most of these have been fracked waste water and crude oil, with a total volume of at least 169,470 gallons, with WPX stating the majority of the incidents resulted from “equipment failure.”
Evidence gathered in preparation of a potential lawsuit by the Aucoin family, provided to Truthout, shows that WPX has repeatedly failed to take actions to mitigate harm to both people and the environment, and that the aforementioned New Mexico state entities, which are tasked with protecting citizens and the environment and overseeing the oil and gas industry in the state, have “repeatedly failed to hold WPX and other Oil and Gas companies accountable for committing that harm,” according to research conducted for the family.
The findings of the evidence also show numerous and egregious environmental violations WPX has carried out both in and outside of New Mexico.
WPX has been involved in numerous lawsuits that have alleged egregious environmental violations, particularly regarding water contamination. In one instance on February 27, 2017, the Pennsylvania Department of Environmental Protection fined WPX Energy Appalachia $1.2 million for contaminating drinking water.
In just one source alone, “Hydraulic Fracturing Tort Litigation Summary” published on July 15, there were at least three other lawsuits against WPX. One example that is eerily similar to the issues WPX is involved with in New Mexico, on page 52 of the document, reads: “On July 2, 2015, the Pennsylvania Department of Environmental Protection ordered WPX Energy Appalachia LLC to restore or replace the water supply of Virginia and Glen Kalp after determining that WPX’s fracking activities were responsible for contamination of the water.”
WPX is not alone in their malfeasance; since Governor Lujan Grisham took office two years ago, at least 901 incidents have been reported by the 10 largest companies operating in New Mexico. Other major violators include XTO Energy, which has had, at the time of this writing, 280 incidents in the same time period; Devon Energy, which has had 165; and Oxy USA with 153.
The findings also reveal that Governor Lujan Grisham and all the relevant state agencies responsible took “little to no action … to supervise, monitor, control, or penalize the companies,” even for “major” incidents” which were most commonly spills of “produced water,” natural gas, or crude oil.
Failure to Regulate
The State of New Mexico does not even have legal standards for some of the top carcinogens found in the toxic wastewater produced by fracking.
The State of New Mexico holds all natural resources within its borders in public trust for the benefit of the people of New Mexico. The way Penny Aucoin sees it, the State of New Mexico has, according to their complaint, “failed in its fiduciary duty to recognize and prevent substantial impairment to the environment, control of pollution and control despoilment of the air, water, and other natural resources in violation of its Constitutional and statutory duties, thereby injuring these Plaintiffs.”
The very agencies that are charged with the protection of New Mexico’s air, land and water, and are “obligated to monitor, regulate, control, and enforce against oil and gas pollution” have failed in that responsibility causing injury to Aucoin and her family, as well as all New Mexicans.
Due to WPX’s contamination of Aucoin’s family and property with toxic, carcinogenic and other ultra-hazardous materials, they have suffered the usual things people suffer from when they live in the impact zone of the oil and gas industry: loss of the use and enjoyment of their property and their living space, loss of health, loss of quality of life, emotional distress, and other damages. They have no idea what the long-term impacts of their exposure will be, but the risks associated with long-term exposure to volatile organic compounds like benzene, toluene, ethylbenzene and xylenes — including growth reduction, cancer and birth impacts like low birth weight — are well known.
What makes Aucoin’s potential lawsuit special is that it is challenging the entire fracking method of oil and gas extraction in New Mexico, as well as all of the state entities complicit with the oil and gas companies engaging in fracking.
In the company’s own words, WPX is “focused on profitably exploiting, developing and growing our oil positions in the Williston Basin in North Dakota and the Permian and San Juan Basins,” and includes ownership, operation, construction, drilling, hydraulic fracturing, production and maintenance of certain natural gas wells.
Aucoin’s and her family’s claims arise precisely out of these very activities.
The NMED, EMNRD and OCD are all obligated to monitor, supervise, regulate, control and enforce against oil and gas pollution. Yet they all have grossly failed their responsibility to do so. None of them ever issued compliance actions, required remediation plans, assessed penalties, suspended permits, or launched civil or criminal actions against WPX or any other bad actors in the oil and gas industry in New Mexico. This means that the government entities and their negligence of their official policy responsibilities have directly caused the harms to Aucoin and her family, as well as depriving them of their rights, which are protected by New Mexico’s laws and constitution.
“Additionally, although not authorized by written law, such practices of extreme leniency,” reads the complaint, “including failure to investigate, failure to execute effective measures of enforcement or penalize violations, meaning that there are no proper proceedings for redress, by Defendant governmental entities, are so permanent and well settled as to constitute a ‘custom or usage’ with the force of law that encourage a ‘wild west’ or ‘anything goes’ environment that WPX and other oil and gas entities enjoy which caused the injuries to Plaintiffs.”
The harms aren’t just to human health. The toll on the state’s water resources is significant. New Mexico is already facing extreme water scarcity exacerbated alongside the climate crisis. Drilling one well required more than 11 million gallons of water per day in 2016, which is enough to fill 17 Olympic-size swimming pools, according to one study.
And for every barrel of oil produced, four barrels of toxic “produced water” come with it. “Produced water” presents a dangerous and costly waste issue. According to the NMED, in 2018, New Mexico wells generated 42 billion gallons of this toxic wastewater, which is enough to cover 8,000 football fields with a foot of water every day. High levels of carcinogenic and radioactive fracking waste have already contaminated New Mexico’s lands and waterways. According to the OCD, there were 1,523 reported spills in New Mexico in 2018, which is roughly one spill every six hours. Already in 2020, 1.6 million gallons of produced waste liquid have been released, according to industry self-reporting. These “spills” and “releases” are not considered a violation of any law, and operators face no punitive consequences.
What is the state’s answer to this ever-increasing waste problem? OCD released a proposed rule amendment in July with new mandates established in the state Produced Water Act, which was signed into law in 2019. The law was hailed by New Mexico House Speaker Brian Egolf as one of the greatest environmental achievements in the state’s history, but critics have raised concerns that the Produced Water Act and subsequent rule-making could open the door for carcinogenic and radioactive fracking waste fluids to be “re-purposed” in other sectors, such as road construction and management, and even irrigation. Whether that is the intention of the bill’s sponsors is unclear.
Speaker Egolf submitted written comments to the OCD, according to research for the Aucoin family, stating, “I urge you to take care in the crafting of these regulations to ensure that none of the rules and regulations adopted pursuant to House Bill 546 inadvertently allow or purport to permit any use, application, or discharge of produced water outside of oil and gas operations. The people of New Mexico will be best served by the adoption of stringent regulations of produced water that put public health and safety first and clearly state that any use of produced water outside of oil and gas operations is prohibited.”
However, a public records request revealed the OCD is working with industry on “pilot projects” for off-field application before the state’s Consortium on Produced Water has completed a public safety review. Experts at the two-day hearing also pointed out that restricting produced water’s reuse to the “oilfield” is a legal fiction: What constitutes the oil field? Penny, Carl, Gideon and Skyler’s home is technically outside of the well pad — but that didn’t protect them from the impacts of exposure. The Aucoin/George family, like tens of thousands of others, live inside a checkerboard of “oil and gas operations.”
Searching for Justice
When asked what WPX is doing to compensate or “make whole” the Aucoin/George family for their ongoing health issues, and the fact that the family no longer feels safe living where they do because of the proximity to the oil and gas operations, WPX spokesperson Kelly Swan told Truthout, “It’s difficult to ascertain the status of their health situation without undertaking an extensive discovery process, which would include an examination of historical medical records. However, a member of the Aucoin family publicly testified in October 2019 about blisters, headaches, asthma and nosebleeds. Those conditions obviously pre-date the rupture that occurred on our water line near their property in January 2020.”
Swan stated that since the accident, WPX has repaired the line and conducted safety and pressure tests, buried part of the line that was aboveground, and shut the oil well that fed the line. He also said soil testing and remediation was conducted, and the results were reported to OCD.
“Data from this work confirms that any misting from the tear in the line that may have impacted the family’s property has been remediated and cleaned up to NMOCD standards,” Swan said. “On Aug. 4, the NMOCD approved the completion of our remediation work.”
When asked what his company is doing to remedy what appears to be a history of accidents, spills and contaminating water sources, Swan said:
In 2019, WPX had 366 spills while managing more than 188 million barrels of produced water and oil on our drilling and production sites in Texas, New Mexico and North Dakota. That’s enough liquid to fill about 12,000 Olympic-sized swimming pools. Of that amount, we kept 99.988% of the water and oil where it was supposed to be — in pipes, tanks, equipment, trucks, etc. In addition to state reporting requirements, we make this information publicly available in an ESG report on our website.
He added that his company spends millions of dollars on prevention, maintenance, training and research into the causes of spills, and that in 2019, WPX reduced the volume of its spills by 29 percent compared to 2018.
As for what WPX is doing to compensate the Aucoin/George family, Swan said, “WPX had someone on-site to shut-in the well and stop the release within 24 minutes of learning about the incident. We have remained engaged with the family ever since and will continue to address their claims.”
Meanwhile, Penny, Carl and Skyler’s nosebleeds, headaches and rashes continue. Gideon, their son, will soon have his nose cauterized again in an attempt to stem the nosebleeds, and Carl’s skin rashes have spread across his back and shoulders.
Aucoin wants WPX to make things right, but also simply wants acknowledgement of the suffering that has been caused to her family.
“We want them to realize we are people, and that they’ve ruined our lives,” she said. “They need to get us out of there and move us to a safe place.”
Carl told Truthout that WPX needs to “replace all that we’ve lost,” including the loss of his family’s home, and strained relations within his family.
“This has ruined our lives in so many different ways,” Aucoin said. “Our health, family relations, financial problems, literally all aspects of our lives. It has become a living nightmare. It’s like the company does not realize how they have impacted and changed every aspect of our lives.”
New Mexico is faced with this fundamental issue: Does it fill its coffers with blood money, sacrificing the health of its people in order to reap funding from the oil and gas industry? Or does it hold accountable an entire industry that is poisoning its people and the Land of Enchantment?
New Mexico’s current administration has chosen the former.