Posted: December 9, 2013
This page is categorized as:    link to Outrage Management index
Hover here for
Article SummaryThe battle over fracking of shale gas and shale oil keeps getting hotter, in large part because the fracking industry does such a lousy job of communicating with its stakeholders. This column lays out some of the pluses (mostly economic) and minuses (mostly environmental) of fracking, and builds a case that the fracking industry should acknowledge the genuine minuses far more than it does, rather than focusing so much on selling the pluses of fracking and rebutting its not-so-genuine minuses. Other ways in which the fracking industry has forfeited trust are also discussed: using a narrow definition of “fracking” to mislead people about environmental risks; refusing to disclose the contents of frac fluid; insisting on nondisclosure agreements. But while it urges the fracking industry to become more trustworthy, the column puts more faith in accountability as a replacement for trust – accountability to neutral third parties, to governments (that is, regulation), and especially to neighbors and activists. The column ends with a list of eight additional recommendations for reducing stakeholder outrage about fracking.

Fracking Risk Communication

Two corporate clients in the same recent week brought me out of semi-retirement to talk about risk communication strategies for shale gas and shale oil exploitation – “fracking.” Both posed essentially the same question: “We realize we have done a lousy job of communicating with our stakeholders. What should we be doing differently?”

This is major progress from a few years ago, when I had to work hard to convince them that they were indeed doing a lousy job of communicating with their stakeholders. Now there is a widespread sense throughout the world of fracking that the industry is at risk.

It’s not just the risk of tougher regulation; that will happen, and the sooner the better – better for the industry itself as well as for the environment and the public. What has chastened the industry is the risk of getting shut down altogether in places where a lot of oil and gas wait to be harvested, and in some cases a lot of money has already been spent on exploration and leases. Fracking is legally banned in Vermont; there’s a de facto moratorium in New York and growing talk of a moratorium referendum in Colorado; overseas there are national bans or moratoria in France, Bulgaria, Ireland, and South Africa; there are scores of local bans and moratoria in communities across the country and around the world.

Given the substantial benefits that shale gas/oil exploitation brings to an area, the growing opposition is testimony to something. To people’s ability to think beyond virtually guaranteed short-term economic gain and worry instead about possible long-term environmental harm? To the industry’s stunning failure to sell its strengths credibly and, more important, to acknowledge its weaknesses honestly? To the universal truth that outrage trumps not just hazard but even self-interest? All of the above, I think.

So now is a propitious time for me to make recommendations regarding shale gas and shale oil risk communication – not recommendations for anti-fracking activists, who I think are managing the issue superbly already, but recommendations for the industry, which desperately needs risk communication advice and may at last be ready to listen to some.

How People See Fracking:
Pluses, Minuses, and Tradeoffs

link up to indexThis first section is about the pluses and minuses of fracking – and how people see those pluses and minuses. If that’s old news to you, feel free to skip to the next section, “Acknowledging Opponents’ Arguments,” on why the fracking industry should pay more attention to the minuses.

Significant parts of the United States and many other countries around the world possess natural gas and oil deposits bound up in underground shale. Some shales are naturally fractured, making it easy to get to the gas and oil; those deposits have been harvested for decades. What’s comparatively new is a technique called hydraulic fracturing (“fracking”) – using a mixture of water, sand, and chemicals (“frac fluid”) under high pressure to crack the shale and liberate the gas and oil. Innovations in fracking have opened up vast areas for commercial production in just the past few years … with a lot more to come if governments and citizens decide to let it happen.

Shale gas and shale oil exploitation has real pluses and minuses.

The pluses are mostly economic. Locally, we’re talking about substantial royalties for lucky property owners and lots of new, high-paying jobs for those with the requisite skills – plus the economic benefits that come with royalties and jobs: increased tax revenues, new infrastructure, etc. Nationally, the economic benefits are even more impressive. Fracking makes energy independence feasible: The U.S. is well on its way to becoming a natural gas exporter instead of a natural gas importer, and Middle Eastern oil potentates wield appreciably less political power than they did a few years ago. And fracking exerts downward pressure on energy costs: home heating costs; commuting costs; trucking costs (and therefore the cost of virtually everything).

The minuses are mostly environmental. Among them:

  • the risk that leaking frac fluid, gas, or oil can contaminate local well water, groundwater, or surface water;
  • the risk of drill rig explosions, fires, and other accidents, which can injure workers and neighbors and lead to air contamination;
  • the contention that fracturing shale lets harmful gases, previously trapped underground, travel to the surface;
  • routine leakage of methane and other hydrocarbons into the air;
  • air pollution from the heavy equipment that shale gas and shale oil exploitation requires;
  • the need to contaminate large quantities of water (sometimes in places where water is scarce) with various chemicals to make the frac fluid, and the need to put the frac fluid someplace when its job is done;
  • the growing evidence that fracking can sometimes destabilize hydrogeology and cause “mini-earthquakes” that may or may not be harmless; and
  • the proliferation of thousands of drilling sites in people’s backyards, pristine wilderness areas, and other places where they are not necessarily wanted.

This way of framing the controversy – economic pluses versus environmental minuses – is arguably part of the risk communication problem. That’s certainly the way most fracking proponents and opponents see the controversy, and the way most media stories report it: as a classic jobs-versus-environment battle. But both halves of this simplistic formulation are open to dispute.

Natural gas is a comparatively clean fuel, a lot cleaner than coal in terms of both greenhouse gas emissions (and thus global warming) and conventional pollutant emissions (especially particulates). Because fracking has significantly reduced the cost of gas, hundreds of power plants have switched or are thinking of switching from coal to gas, with impressive environmental benefits. Even shale oil is environmentally preferable to many other sources of oil, most notably the very “dirty” oil sands of Alberta.

Arguably the biggest environmental minus of fracking, in fact, is its possible negative impact on renewable energy technologies like solar and wind, precisely because shale gas and even shale oil are so plentiful and so much cleaner than coal. Local activist groups that fight fracking do so mostly because they are concerned about local environmental impacts. But national and international anti-fracking advocacy is run largely by groups that may privately admit that shale gas is a good interim energy source, but believe (perhaps correctly) that even a good interim energy source will do more harm than good because it will postpone the desperation needed to motivate the renewables revolution.

As for the economic benefits of fracking, a lot of those new local jobs are filled by non-locals, brought in because they already have the skills the industry is looking for. And almost by definition, any prosperity grounded in exploitation of natural resources like gas and oil is temporary, lasting only as long as the deposit lasts, and only as long as the price of the resource is higher than the cost of extracting it. Because resource prices are extremely volatile, resource industries are extremely prone to boom-and-bust economic cycles. For complicated reasons I only half-understand, economies dominated by natural resources also tend to prosper less than economies grounded in other industries, a phenomenon sometimes labeled the “resource curse.”

It would be helpful for people to start seeing the controversy as involving environmental pluses as well as minuses, and economic minuses as well as pluses.

Even seeing both environmental minuses and economic pluses at the same time would be very significant progress. It would force us all to grapple with the tradeoffs. Unfortunately, as risk communication expert David Ropeik has rightly argued, people tend to focus on one or the other, framing the fracking controversy in terms of either its economic benefits or its environmental risks. Ropeik attributes this one-sidedness largely to the fact that “the human brain is lazy.” According to Ropeik, “we hear a few initial facts, and based on how the issue is first presented via those early partial clues, we quickly form our judgment…. We rarely seek out more information.” So millions of Americans whose first exposure to the controversy was the anti-fracking documentary Gasland, for example, see the issue through the lens of fracking’s environmental drawbacks, and therefore tend to ignore its economic benefits.

An even bigger source of the one-sidedness, Ropeik suggests, is “cultural cognition.” Here Ropeik makes use of the four archetypes promulgated by Mary Douglas and Aaron Wildavsky in their influential 1983 book, Risk and Culture: An Essay on the Selection of Technical and Environmental Dangers. Douglas and Wildavsky claimed it was possible to predict which technologies people would embrace and which they would reject as too risky by categorizing them culturally as either egalitarian, communitarian/collectivist, individualistic, or hierarchical. Ropeik says egalitarians and communitarians tend to oppose fracking, while individualists and hierarchists tend to support it. A recent study link is to a PDF file confirmed one of these hypotheses: Egalitarians do tend to oppose fracking. The study found no significant relationship between individualism and support. It didn’t test the other two cultural archetypes.

Framing is a universal psychological phenomenon. And the one-sidedness Ropeik points to isn’t unique to fracking. It is characteristic of nearly all risk-versus-benefit controversies. Once people decide a technology is unacceptably risky, they tend to ignore or disparage its benefits, rather than regretting that the risks make those benefits sadly unattainable. Similarly, once people decide a technology is too good to pass up, they tend to ignore or disparage its risks, rather than claiming that the risks are real but the benefits make those risks worth taking. You don’t have to be a fan of Douglas and Wildavsky’s cultural theory of risk (I’m not) to agree that most people are disposed to focus on either a technology’s risks or its benefits, and that it’s hard to get them to acknowledge both and make tough judgments about the tradeoffs.

With regard to fracking, so far most people are in neither camp. According to a September 2012 survey link is to a PDF file, when asked how much they have ever heard about fracking, 39% of Americans say not at all, 16% say a little, 22% say some, 9% say a lot, and 13% say they don’t know how much they have heard. After being given one sentence on what fracking is and then asked their opinion about it, 58% not surprisingly picked “undecided” or “don’t know.” The rest: 9% strongly supported fracking, 13% somewhat supported it, 10% somewhat opposed it, and 10% strongly opposed it.

There aren’t a lot of people who have heard a good bit about fracking, see real benefits and real risks, and are still unsure which way to go. Of the people who said they knew a lot about fracking, only 5% hadn’t picked a side. The most common positions were strong opposition (34%) and strong support (30%); 18% were somewhat opposed and 13% were somewhat supportive.

Those who feel most knowledgeable, in other words, are very unlikely to be suspending judgment; their judgments are likelier to be fervent than mild, and likelier to be anti-fracking than pro-fracking. I have no idea what the direction of the causality is. Maybe knowledge (or the sort of knowledge that comes from paying attention to media coverage and blogs) motivates people to be fervently anti-fracking. Maybe fervent opposition to fracking motivates people to learn more (or think they know more). Either way, there are damn few knowledgeable undecideds.

There is more support in the same survey for the conclusion that relatively few people have any position on fracking, and almost nobody has a nuanced position. When respondents were asked what one thing comes to mind first when they think of fracking, the majority (58%) said they didn’t know, or said something irrelevant or too vague to categorize. The only other common response (32%) was some non-evaluative reference to gas, oil, fracturing shale, and the like. Of the small minority who mentioned a positive or negative impact, 7% (overwhelmingly opponents) said something about an environmental impact and 3% (overwhelmingly supporters) said something about an economic impact. Environmental pluses and economic minuses were not much in evidence, and neither were tradeoffs between the environment and the economy.

How do I personally see the tradeoffs? In a March 2011 Guestbook entry entitled “Will the shale gas industry try risk communication?” I wrote that “I’m neither an energy policy expert nor an environmental expert, but as near as I can tell the potential benefits of shale gas are huge and the risks are considerable – maybe not huge, but far from negligible.” Now, nearly three years later, it still looks to me like the pluses of fracking outweigh the minuses, but with two provisos: I need to be convinced that fracking will buy time for the transition to renewables rather than providing an excuse for further delaying that transition; and I need to be convinced that fracking will be regulated adequately – tough regs and tough enforcement – so the environmental minuses are kept to a minimum. But it’s not my field, and my opinion is not an expert opinion.

Acknowledging Opponents’ Arguments

link up to indexHere’s an expert opinion, a risk communication opinion: While it would be nice if anti-fracking activists were to acknowledge the pluses of fracking, it’s a lot more important for proponents and especially the industry itself to acknowledge its minuses.

The main reason for this asymmetry is conservativeness – that is, our wise inclination to err on the side of caution when assessing risks. As I argued at length in my 2006 column on “The Outrage Industries: The Role of Journalists and Activists in Risk Controversies,” conservativeness explains why alarming half-truths tend to be more acceptable to the public than reassuring half-truths. I wrote:

Erring on the side of caution is good risk management (and good risk communication). If a smoke alarm goes off when there isn’t any fire, that’s an irritation; if there’s a fire and the smoke alarm doesn’t go off, that’s a catastrophe. So we calibrate smoke alarms to go off too often rather than too seldom. We similarly calibrate journalists and activists to sound the alarm when they think they might smell smoke; we don’t want them to wait till they’re sure. But companies need to be pretty damn certain before they try to shut off the alarm.

Over-caution can be costly, of course – but as a rule it is less costly than insufficient caution. So societies rig the risk dialogue with that in mind. Even seriously exaggerated warnings are seen as a societal service; even slightly exaggerated reassurances are seen as a societal disservice.

It follows that a well-fought risk controversy is a battle between one edge and the middle. Those who are sounding the alarm about a controversial technology – in this case, anti-fracking activists – don’t necessarily need to acknowledge the proponents’ best arguments. They can get into trouble if they get too one-sided, but within reason they are free to focus on briefing (and even exaggerating) the case for their side and rebutting the proponents’ exaggerations (if any). But those trying to reassure people about a controversial technology – e.g. fracking proponents – can’t afford to exaggerate at all. They need to be scrupulously candid about the critics’ best arguments. If they’re smart they will include those arguments in their own communications, leaving the critics nothing to say except points they have already acknowledged and flat-out lies.

Gasland and the typical fracking industry brochure are about equally dishonest (though Gasland is a lot more entertaining). But they’re held to different standards. Gasland is good anti-fracking propaganda. The typical industry brochure is dangerously one-sided.

There are at least four other reasons why the fracking industry has more incentive to acknowledge the anti-fracking case than activists have to acknowledge the pro-fracking case:

  • One-sidedness, exaggeration, and even dishonesty do relatively little harm when perpetrated by people who will never get their hands on a drill rig. We don’t need to trust activists with our health, our safety, our air and water – so we don’t necessarily scour their communications for evidence of their trustworthiness or untrustworthiness. By contrast, it’s common sense to reject a technology that will be managed by people who seem willing to mislead us.
  • Claims about the local economic benefits of fracking tend to be vague and mostly about the future: how much added prosperity a particular community is likely to experience. They’re basically opinions, difficult to prove or disprove. But claims about fracking’s local environmental risks are more concrete and mostly about the past. Typically, fracking proponents unwisely claim that this or that environmental problem has never happened anywhere, which makes it all too easy for critics to specify a place where it looks like it happened. Proponents are branded as liars and the technology’s reputation becomes toxic. Another way to put this problem: Evidence that an economic benefit happened elsewhere doesn’t convincingly show that it will happen here. But evidence that an environmental disaster happened elsewhere very convincingly shows that it could happen here. A smart fracking proponent concedes that it may have happened elsewhere and could happen here, and then focuses on what precautions are in place to keep it from happening and address it if it does.
  • The anti-fracking case is easy to dramatize in emotionally impactful ways. The influential anti-fracking documentary Gasland, for example, is memorable not for its carefully reasoned arguments but for its moving portraits of devastated homeowners who show the camera how their tap water is so contaminated you can set it on fire. The pro-fracking case, by contrast, is more intellectual. Emotional appeals don’t have to be balanced. But intellectual arguments invite skeptical attention – so they need to be able to stand up to that attention.
  • The gas and oil industry is widely distrusted already. And when gas and oil executives argue the case for fracking, their arguments are obviously self-serving. Self-serving arguments from an already distrusted source are unlikely to carry much weight unless the source somehow earns a little trust. By far the most effective way to do that is to acknowledge the truth of your critics’ truthful points. Those critics, on the other hand, are mostly volunteers, acting out of conviction and altruism. (Even the paid staff of national environmental groups are high on conviction and altruism.) They are by no means objective; ideology and personal animus can distort objectivity every bit as much as the profit motive or a hefty paycheck. Still, most people find it easier to believe an angry activist ideologue than a greedy corporate apologist.

This is the single biggest mistake the fracking industry has made: claiming (or seeming to claim) that the environmental risks of fracking are non-existent or trivial, that the activists are making them up. Instead, industry spokespeople and their allies should acknowledge the genuine risks forthrightly.

Only then can they talk meaningfully about what they will do to protect their neighbors – to minimize the probability and magnitude of environmental damage, and to make it right if something goes wrong.

Only then can they talk meaningfully about why their neighbors should be confident that the precautions will work – about their company’s inability to get away with cutting corners any longer; about tough regulations, tough enforcement, and even tougher activists.

Only then can they talk meaningfully about the not-so-genuine risks they think activists have invented or exaggerated.

And only then can they talk meaningfully about frackings’s benefits, and the tradeoffs between risks and benefits.

Of course all the candor in the world won’t help until the industry has meaningful things to say about the steps it is taking to reduce environmental risk and the steps regulators are taking to improve oversight. But the reverse is also true: Reduced risk and improved oversight won’t be credible – won’t even be discussable – until the industry is prepared to acknowledge that the environmental minuses of fracking are real. I think that time might have come.

There is a rebuttal argument. As David Ropeik’s remarks about framing demonstrate, a lot of people think there is already too much attention to fracking’s minuses, disposing the public to ignore its pluses. I don’t disagree that the pluses deserve attention. The fracking industry has sometimes failed to make the case for economic benefits persuasively, and it has often failed to make the case for environmental benefits at all. For one thing, too many fracking companies are also coal companies, which keeps them from promoting the environmental benefits of shale gas and shale oil over coal.

But for the reasons I’ve given, one-sided opposition to a controversial new technology goes over a lot more smoothly than one-sided promotion of that technology.

It’s not just Gasland fans who don’t want to hear much about fracking’s economic pluses until they’ve heard what the industry has to say about its environmental minuses. That’s how anyone who has been told about those minuses is likely to feel.

Of course those who know next to nothing about fracking – who don’t yet know there are environmental minuses – will probably swallow a one-sided pro-fracking sales pitch. The question is how they’ll react later when they hear something about the risks of fracking. Will they shrug off what they hear because they have already learned to frame the controversy in terms of benefits? Some will. But others will conclude that the industry misled them, and they’ll boomerang resentfully to the opposite view. (For more on this dynamic, see my 2012 column “Misoversimplification: The Communicative Accuracy Standard Distinguishes Simplifying from Misleading.”)

So there are three audiences to think about:

  1. People who have already heard about fracking’s minuses, who won’t listen to what the industry has to say about pluses until it acknowledges those minuses (the genuine ones).
  2. People who haven’t yet heard much about fracking, who will acquire a hard-to-shake pro-fracking frame if the industry gets to them first with a one-sided argument about the pluses.
  3. People who haven’t yet heard much about fracking, who will turn into opponents if the industry sells them a one-sided argument about the pluses and then they learn elsewhere about the minuses.

Opinions can differ about the relative size and importance of these three audiences. But it’s hard to imagine that the second group could be bigger and more important than the other two put together. And the second group is the only group for which a one-sided pro-fracking argument could actually help the industry.

And here are two more audiences:

  1. People who already oppose fracking but not too passionately, who will become more passionate enemies if they hear a one-sided industry argument about the pluses.
  2. People who already support fracking but not too passionately, who will become more passionate allies if they hear a one-sided industry argument about the pluses.

Which of those two matter more? Well, does the industry want an even more polarized fracking debate than it faces already, or would it prefer a calmer environment in which fracking isn’t such a hot-button issue? Does business proceed more smoothly when there are lots of passionate enemies and passionate allies, or when there are comparatively few of either? These questions almost answer themselves.

More simply, let’s just divide pro-fracking messaging into three categories:

  • selling valid pluses;
  • rebutting invalid minuses; and
  • acknowledging valid minuses.

(I’m omitting various efforts to sell invalid pluses and rebut valid minuses.)

Which of the three does the fracking industry do too little? The last one: acknowledging valid minuses.

How Do You Spell “Fracking”
and What Does It Mean?

link up to indexAs I mentioned at the outset, the word “fracking” is short for hydraulic fracturing, the key technology that enables far more exploitation of shale gas and shale oil than ever before.

Long before fracking technology became controversial, the word was widespread jargon within the industry. But most industry techies spelled it “fracing,” which worked fine as long as you already knew how to pronounce it (rhymes with “tracking,” not with “tracing”). There were alternative spellings – “fraccing” had some support, and even “frac’ing” and “fracting” had champions – but “fracing” was the clear favorite.

The term was informal anyway, almost slang, and spoken more often than written, so it didn’t matter much how it was spelled. In technical contexts engineers usually wrote “hydraulic fracturing.” As for what they said when talking to the public, that didn’t come up much. There was little demand and little inclination to talk to the public about hydraulic fracturing.

How did fracking-with-a-k arise? According to Simone Sebastian of

Barnett Shale-based blogger and activist Sharon Wilson recently set out to track down the founder of “fracking.” Wilson eventually fingered Lisa Sumi as the originator of the K-based spelling. In 2004, Sumi joined Earthworks’ Oil and Gas Accountability Project. She took on a research report about the then-relatively unrenowned method for extracting oil and natural gas.

The documents she read about hydraulic fracturing shortened the term to “fracing.”

“In my own head, I immediately started spelling it with a K,” she said. “It rhymed with cracking. For me it was purely grammatical.”

Sumi said it took her two years to convince the folks at Earthworks to add a K to their spelling of the term. She had no idea the K would become a political powder keg.

(This is Sebastian’s summary of Wilson’s narrative, duly attributed. For the original, see “Who put the ‘k’ in fracking? The truth, the whole truth and nothing but the fracking truth.”)

The fracking industry hates the k. And despite Sumi’s disclaimer, most people on the pro-fracking side think the new spelling was an intentional effort by opponents to mobilize the f*ck connection and make “fracking” a dirty word. Intentional or not, they’re right about the f*ck connection. Anti-fracking demonstrations typically include lots of double entendre signs: “Frack Off!”, “All Fracked Up,” “Stop Fracking with Our Water,” “What the Frack!”, and even “Frack You!” Even David Ropeik’s article, discussed earlier, was entitled “The Way We’re Fighting over Fracking is all Fracked Up.” And according to Wikipedia: “Frak is a fictional version (profanity of the future) of ‘fuck’ first used (with the spelling ‘frack’) in the Battlestar Galactica TV series. It continues to be used throughout different versions of the franchise as an expletive.”

Source: Baltimore Post-Examiner              


A minute on Google demonstrates that the spelling battle is over and “fracking” has won:

“Fracking” 7,170,000 hits 
“Hydraulic fracturing”     1,280,000 hits 
“Fracing” 428,000 hits   (“Did you mean: fracking?”)
“Fraccing” 68,000 hits   (“Did you mean: fracking?”)

Even “frac fluid” (45,600 hits) may eventually be supplanted by “frack fluid” (15,200 hits), despite the absence of a second syllable to pose the pronunciation problem that justifies the k.

With rare exceptions, I think, offensive terminology isn’t worth trying to defeat. It’s usually more productive for an industry to embrace the offensive term and work with it. In a 2010 Guestbook entry on “‘Corn sugar’ and other euphemisms,” for example, I advised against trying to replace “high-fructose corn syrup” with “corn sugar”:

In outrage management, euphemisms almost always backfire. People who are already upset about an organization’s activities or products aren’t going to be fooled by a name change; the change will simply add another reason for irritation and mistrust….

My advice to clients is always to use their opponents’ terminology. That’s a good idea, I think, even if the terminology is mistaken. The oilsands of Alberta are routinely called “tar sands” by critics. I fully understand that “tar” is another substance entirely. Nonetheless, there are lots of reasons for supporters of oilsands development to address the connotation of the “tar sands” term head-on, starting with the term itself. (Among the reasons: Anyone who Google searches “tar sands” will find almost exclusively opponents’ URLs, because the proponents so studiously avoid the term.) It’s fine to correct the technical error in passing: “The oilsands – which many people call ‘tar sands’ because of their tar-like consistency….”

The same goes for “fracing” versus “fracking.” An offensive spelling, in fact, is even sillier to try to defeat than an offensive term.

But the battle over “fracing” versus “fracking” isn’t the big problem with this problematic word. The big problem is deciding what the word means.

What it means technically, of course, is hydraulic fracturing, the specific process by which the shale is cracked to release the gas or oil. But what it means popularly is much broader than that. Deborah Bailin of the Union of Concerned Scientists explains:

Hydraulic fracturing, technically, is just one step in the many stage process of getting oil and gas out of rock formations deep underground…. Constructing a well pad, drilling the well, and preparing the well with steel casing and cement all must precede hydraulic fracturing itself. After fracturing occurs, the oil and gas must then be captured and transported and the wastewater properly disposed of. Other activities also surround the process….

Unlike technical experts, who use fracking to mean a very specific thing, nontechnical stakeholders have broadened its meaning to encompass the entire scope of operations involved in recent oil and gas development. The word, in popular usage, includes not only the specific step of fracturing the well but pre- and post-fracturing activities, as well as community impacts – real, potential, or merely perceived.

Each side relies on its own definition. Thus, anti-fracking activists routinely claim that fracking can lead to drinking water contamination, while supporters insist endlessly that “there are no documented instances of drinking water contamination caused by fracking.” The truth: Drinking water contamination is likeliest when the cementing is badly done and the pipes carrying frac fluid, gas, or oil leak at or near the surface. It is vanishingly unlikely deep underground where the shale is being fractured. So the industry is right if we accept the narrow, technical definition of fracking, and the activists are right if we’re using the broader, popular definition.

After explaining how the difference in usage “causes confusion in the public dialogue,” Bailin charitably concludes: “Whether the narrower, technical definition or the broader, popular one is more correct isn’t the point. Both are already part of the public dialogue. The point is to insist on clarity.”

But my industry clients know what they’re doing when they lean on the narrow definition in order to mislead a nontechnical audience about the possibility of drinking water contamination.

  • They know that their audience calls the whole process “fracking,” not just the hydraulic fracturing part of the process.
  • They know that the concern they’re addressing is whether anything they propose to do in the neighborhood might contaminate their neighbors’ drinking water.
  • They know that using a part of something to denote the whole thing is common; it’s called synecdoche, as in “the church took a stand on pornography” or “all hands on deck” or “my teenager can’t wait to get wheels” or “she earns her bread working as a carpenter.”
  • They know that their own companies routinely advertise job opportunities in “the fracking industry” without any intention of limiting their recruitment to hydraulic fracturing specialists.
  • And they know that if they wanted to use the narrow definition without misleading people, they could easily explain: “Drinking water contamination is a genuine risk from what we do, although it’s not the hydraulic fracturing part of what we do that poses the risk.”

If you’re not convinced yet that my clients are misleading on purpose, do this thought experiment, which I have sometimes done with clients who wouldn’t concede the point:

Imagine that a local politician promised a gas or oil company that s/he would support fracking in an upcoming Council vote. Then, when the vote came, the politician announced that hydraulic fracturing itself was acceptable but drilling was too dangerous to permit. Would company officials be satisfied, or would they feel tricked and betrayed?

Tricked and betrayed is exactly how fracking opponents feel when the industry relies on the narrow definition of fracking to say something untrue about the process as a whole. Worse, it’s how undecideds feel when they belatedly learn that that’s how the industry persuaded them that fracking was safe.

On both counts – the spelling and the definition – the industry is beginning to shape up. I recently listened to a public radio story on fracking out of Boulder, Colorado. Everyone being interviewed, the industry reps as well as the activists and ordinary citizens, used the term in its broader meaning. And while most industry communicators still try to avoid the word – so a Google search for “fracking” yields mostly opposition sites – it’s not quite as hard as it used to be to find a company website that spells fracking with a k.

Trustworthiness: Frac Fluid and Nondisclosure Agreements

link up to indexAll sides in the fracking controversy agree that the public generally distrusts what industry has to say about the controversy. Even the industry itself thinks so. I haven’t found any surveys that document the distrust specifically with regard to fracking, almost as if the point were too obvious to be worth documenting. But in broader surveys of trust in various institutions, the oil (and gas) industry consistently comes out at or near the bottom. A 2012 summary of fracking-related attitudes, for example, cites a 2008 Harris poll in which just 4% of Americans agreed that “oil companies are generally honest and trustworthy.”

Industry commentators take the distrust as a given and dwell on the need to “build” trust, or “rebuild” trust (as if they once had it) or – the best formulation – “earn” trust.

Acting more trustworthy is a place to start. I have already discussed two examples of untrustworthy behavior by the fracking industry. Failing to acknowledge the truthful claims of critics merits distrust. Hiding behind a narrow definition of fracking to pretend that there’s no risk of drinking water contamination merits distrust. I want to discuss two more examples before I move on.

The first example is the industry’s foolish refusal to disclose the contents of frac fluid.

For years, neighbors and activists demanded to know exactly what was in frac fluid. This was a self-evidently sensible question, and the unwillingness of fracking operators to answer it greatly exacerbated public distrust. Not surprisingly, activists quickly saw that the unanswered question was a lot more useful to them than the answers would have been, so they made the demand for answers a centerpiece of their campaigns. Achingly slowly, companies saw how they had trapped themselves and started providing the answers. But the damage had already been done. Many casual opponents of fracking still believe that the contents of frac fluid are so toxic the industry dare not disclose what they are.

It’s not just that the companies wouldn’t answer the question. Their non-answers often came out sounding patronizing, off-point, and evasive.

  • “It’s mostly water and sand.” (True but irrelevant. People rightly wanted to know what else is in there that might be dangerous even in low concentrations.)
  • “The other chemicals are mostly common substances that are found in foods and other familiar products.” (Also true, thanks to the “mostly” qualifier. And also irrelevant. People wanted to hear about the ones that are carcinogens or otherwise potentially harmful, whether they’re ubiquitous or not.)
  • “The regulators already have all the information they need to protect the public.” (Largely true. But even the regulators didn’t necessarily have all the details. And the neighbors didn’t necessarily trust the regulators. And the companies often pressured the regulators not to publish what they knew.)
  • “The information is proprietary.” (Sometimes true of the exact proportions of ingredients in a commercial product added to the frac fluid. But the simple list of ingredients of such a product wasn’t normally proprietary, even if the formula was. Companies were already required to provide Material Safety Data Sheets with this information to employees, fire departments, and emergency responders.)

In fairness, it wasn’t easy to answer the question completely, especially when it got down to the concentrations of chemicals present only in parts-per-billion in ingredients of ingredients of frac fluid. But fracking operators were capable of providing not-quite-complete answers that most people (even skeptical neighbors) would have considered adequate. That’s what they did eventually. So why didn’t they do it promptly?

Part of the answer is probably arrogance: “We know what we’re doing. We already have regulators looking over our shoulder. How dare these unqualified nonprofessionals demand to look over our shoulder too?”

But a bigger part of the answer, I believe, is the industry’s distrust of the public – its conviction that any information it provided would be distorted and misinterpreted. Some of the ingredients in frac fluid (benzene, for example) are genuinely toxic. The important question is how likely those ingredients are to wind up in places they don’t belong in quantities sufficient to do actual harm. Rather than engage this question on the merits, industry leaders preferred to keep silent about the ingredients themselves. They didn’t want to end up having to concede that, yes, some of the frac fluid ingredients are toxic, but their concentrations are low and people aren’t likely to have much exposure to them. Rather than go there, they decided to refuse to disclose what the ingredients were.

Thus the widespread conclusion that they must have something to hide was justified. They really were trying to hide the contents of frac fluid – not because they thought frac fluid was dangerous, but because they thought candor about its contents would lead to claims that it was dangerous.

This failure of transparency undermined trust far more than a debate (even a rancorous debate) about exposure pathways and dose-response relationships could possibly have done. Now, belatedly, the debate is occurring anyway … in the shadow of everyone’s awareness that it’s a debate the industry was afraid to have.

Of course there are some for whom the mere presence in frac fluid of toxic ingredients in any amount is sufficient to justify opposition to fracking. But many in that group are opponents already, and are simply scrounging for additional ammunition. Most people know that there are also small amounts of toxic ingredients in their pantries. Sure they’d rather there were nothing scary in frac fluid. But that’s not the answer they expect or necessarily the answer they require. They want to know which ingredients, how toxic, how much, and where it ends up – precisely the questions the industry refused to answer.

Even those who don’t especially want to know still want the right to know. In a 2012 survey link is to a PDF file of Michigan and Pennsylvania residents, over 90% of respondents agreed, most of them strongly, that the fracking industry should be required to disclose the contents of frac fluid. Respondents were more pro-fracking than anti, so their belief in mandatory disclosure wasn’t just an opposition tactic. It reflected people’s real sense (even supporters’ real sense) that this was information they were entitled to have. Refusing to give it to them was a serious mistake.

My final example is the widespread industry practice of attaching nondisclosure agreements to claims settlements. This is in no way confined to fracking; it is commonplace throughout tort litigation. It undermines trust wherever it happens.

In a recent article on the Forbes website (clearly not an anti-fracking site!) entitled “Why No One Trusts Oil Companies on Fracking,” Loren Steffy emphasizes that “the industry needs to stop acting like it has something to hide.” His main example is one company’s $750,000 settlement with a Pennsylvania family over claims of health and environmental damage from fracking on their land. “As part of the deal,” Steffy reports, the company’s attorneys required “a gag order that prevents the family from commenting ‘in any fashion whatsoever’ on fracking activities.” Even the landowners’ 7-year-old and 10-year-old children are covered by the nondisclosure agreement, legally forbidden to tell their classmates what happened or what they think about it.

It’s hard to read about such a nondisclosure agreement without concluding that the company isn’t just paying for the damage it might have done. It is paying to keep others from finding out about that damage. In some cases – I don’t know if this is one of them – companies settle claims they consider invalid, purely to get the nondisclosure agreement that will keep a local “troublemaker” from continuing to stir the pot.

Once again, nondisclosure agreements don’t just increase public distrust of the industry. They also demonstrate the industry’s distrust of the public, of its ability to put bad news in context. Fracking operators could have a policy of settling valid landowner complaints promptly and publicly, and then citing the settlements as evidence that “Yes, sometimes we mess up. When we do, we admit it and we make it right.” But they’re afraid that people will conclude instead that “if fracking can cause any harm anywhere, we don’t want it here.” So they try to settle claims secretly, behind the veil of a nondisclosure agreement.

Of course I want to see fracking companies learn to behave in more trustworthy ways – to be more transparent, more honest. To summarize my four examples, I want to see them:

  • Acknowledge the truth of the opposition’s valid arguments.
  • Stop hiding behind a narrow definition of fracking to pretend that their activities do no harm.
  • Be candid about the contents of frac fluid.
  • Stop making settlements contingent on nondisclosure agreements.

Maybe in the long run these and other reforms will lead to higher levels of public trust in the fracking industry.

But I admit I’m not especially interested in figuring out how the fracking industry can become more trusted. I think that goal is probably not attainable, and probably not a desirable goal in any case. When industries are highly trusted, I think, the temptation to betray that trust becomes extremely high. Eventually they misbehave, get caught, and are no longer trusted. I believe that trust in industry – especially trust in an industry that profits from a controversial technology – probably isn’t achievable. If achieved it probably isn’t sustainable. I believe that it isn’t wise for the public to trust such an industry, and it isn’t wise for the industry to aim to be trusted.

That’s why I’m so interested in accountability.

Accountability as a Replacement
for Trust

link up to indexIn a 2002 column entitled simply “Accountability,” I wrote:

My clients tend to assume their “trust problem” is that stakeholders don’t trust them. It is often true that stakeholders don’t trust them, but it doesn’t have to be a problem. (Arguably it is a societal achievement; excessively trusting publics are far too likely to be gulled.) The problem, I think, is that my clients expect stakeholders to trust them, and haven’t figured out how to deal with activists and neighbors in the absence of trust. Of course it is wise to act in trustworthy ways, to deserve to be trusted. But an excessive desire to be trusted leads many companies and government agencies to pass up opportunities to be accountable instead. This is monumentally self-defeating.

The final section of my “Accountability” column focused on “Accountability to Whom?” The best answer, the column concluded, is “accountability to everybody, especially to the people and groups you least want to be accountable to.”

There are four possible sources of accountability that the fracking industry could consider: accountability to neutral third parties, to regulators, to neighbors, and to activists.

Accountability to neutral third parties

link up to indexWhen the fracking industry has looked for someone to be accountable to, it has often leaned heavily on neutral third parties – for example, by commissioning a team of university professors to study methane leakage from the wells or the relationship between fracking and tiny earthquakes.

The main problem with third-party accountability is that neutral third parties are seldom seen as neutral after they have adopted a position. The endorsement contaminates the endorser more than it helps the endorsee. This is true in both directions. Industry distrusts any expert who says the activists are right about something; activists distrust any expert who says the industry is right about something. Experts can preserve their reputations for neutrality by sticking to mealy-mouthed on-the-one-hand on-the-other-hand equivocations. Or they can oscillate unpredictably from one extreme to the other. But as soon as they have staked out consistent substantive positions on controversial topics, they become in effect “industry experts” or “activist experts” – at which point their credibility as neutral third-party experts is shot.

As John Stauber and Sheldon Rampton wrote in their book Trust Us We’re Experts: How Industry Manipulates Science and Gambles with Your Future:

Public relations firms and corporations have seized upon a slick new way of getting you to buy what they have to sell: Let you hear it from a neutral “third party,” like a professor or a pediatrician or a soccer mom or a watchdog group. The problem is, these third parties are usually anything but neutral. They have been handpicked, cultivated, and meticulously packaged to make you believe what they have to say.

My point isn’t that Stauber and Rampton are right. (They are partly right.) My point is that that’s how fracking opponents and even fracking skeptics see the industry’s “neutral” third parties. Their neutrality is suspect and so their credibility and impact are low.

I advise my clients to think of experts as falling into four groups:

  1. experts so committed to your side they’ll do almost anything to make you come out right;
  2. experts generally on your side, but honest enough to agree with your opponents when they’re right;
  3. experts generally on your opponents’ side, but honest enough to agree with you when you’re right; and
  4. experts so committed to your opponents’ side they’ll do almost anything to make your opponents come out right.

There is no middle group of experts (Group 2-1/2) that’s genuinely neutral.

Support from your reliable allies (Group 1 and even Group 2) is too predictable to be useful. So pick your experts from Group 3 – experts who hope they can prove you wrong but are prepared to say you’re right when you are. Better yet, get your opponents to name some experts they trust, experts they consider on their side. Rule out the ones you think are in Group 4, and pick one of the Group 3 experts from your opponents’ list of nominees. When a Group 3 expert says you’re right about something, it actually moves the needle. And if you’re afraid a Group 3 expert might not say you’re right, consider the possibility that you might be wrong, and even the possibility that you should say so.

Meanwhile, if you’re still commissioning Group 1 or Group 2 experts to validate your claims about fracking, don’t expect to get much of an accountability bump out of them.

Accountability to regulators

link up to indexThis is the way the system is supposed to work: Governments pass tough-but-fair regulations, and enforce them strictly. Companies know the regulations will be enforced, so they have an incentive to obey them. The public knows the regs and their enforcement are tough enough to rely on, so it goes about its business. But some people (especially activists) continue to pay enough attention that they can blow the whistle if the system stops working the way it should. That keeps regulators and companies on their toes.

Are state fracking regulations and state enforcement of the regs sufficiently tough? Naturally most anti-fracking activists say they’re nowhere near tough enough, while most fracking companies say they’re too tough. What does the public say? In a December 2012 national survey, 66% of Americans said they wanted increased government regulation of fracking, while 18% were against. In September 2012, only three months earlier, it had been 56% for more regulation and 29% against. (The pollsters didn’t even ask whether anyone was for less fracking regulation.) I haven’t seen a cross-tabulation of attitudes toward fracking with attitudes toward tougher fracking regulation – but it’s obviously not just or even mostly opponents who want tougher fracking regs. Lots of people want fracking to proceed … but with tougher regulations and tougher enforcement than we have today.

That seems to be the position of a majority of energy policy analysts as well: Shale gas and shale oil exploitation is a good path forward if – and only if – we get the regs right. While research continues and many questions remain unanswered or hotly debated (strengthening the case for short-term moratoria to allow more data to accumulate), most analysts appear to believe that we know enough now to do a decent job of regulating fracking. Similarly, countless newspapers in states with growing fracking industries have editorialized on behalf of moving forward in a heavily regulated environment. Even many mainstream national environmental organizations have taken this position. They devoutly hope to see natural gas replace coal as a fuel for electric power generation, which makes them want to support fracking – but the patchwork of sometimes ineffectual state fracking regulations makes them nervous about local environmental impacts.

In fairness, fracking regulations are getting progressively tougher in many states. But the fracking industry exerts strong and often successful counter-pressure. Whenever a state looks ready to ratchet up its regulatory and enforcement regime, you can count on the industry to threaten to move to more accommodating states if the changes are implemented.

It would be wiser, I think, for the fracking industry to support tough fracking regulation. For one thing, this would better position the industry to make the case against proposed regulations that are foolish or unfeasible. (An industry that’s against all proposed regulations loses credibility with regard to the ones that are genuinely unwise.) It would also help weed out the smaller operators who can’t manage to adhere to a tough regulatory regime, especially the low-budget fly-by-night bad actors whose repeated misbehaviors give the entire industry a black eye. Above all, it would reassure on-the-fence neighbors, build support among energy analysts, and reduce opposition from ENGOs.

So why doesn’t the fracking industry support tougher regs? In the popular Netflix series “House of Cards,” Congressman Francis Underwood (the Kevin Spacey character) is trying to persuade a natural gas company lobbyist to support an environmental bill, even though it incorporates some new regulations on fracking in Pennsylvania. He points out that the regs would constrain the company’s drilling very little, while advancing the election prospects of a gubernatorial candidate that the company has reasons to want to see elected. The lobbyist doesn’t disagree with this analysis. He merely reminds Underwood that it’s a matter of principle for the company to oppose all new drilling regulations, however modest.

That’s pretty much what my clients tell me when I suggest that kneejerk opposition to regulatory accountability is bad for business. It’s not just my gas and oil industry clients. I once worked with a paper company that had already installed cutting-edge pollution-control technology in anticipation that tougher regulations would soon make such technology necessary. If the proposed regs didn’t get adopted, my client would be stuck with expensive white-elephant equipment that reduced emissions “too much,” putting it at a competitive disadvantage vis-á-vis companies with conventional technology. Nonetheless, the company insisted on opposing the regs.

Time science writer Bryan Walsh got it right, I think, in a 2012 blog entry entitled “Why the Shale Gas Industry Needs Regulations for Fracking”:

You’ll rarely find a business in America – and especially one in the fossil-fuel industry – asking for more regulation. The default mode of industry groups like U.S. Chamber of Commerce and the American Petroleum Institute (API) is that government is always the problem, and that less regulation is always the solution.

That’s usually been the position of the shale gas industry in the U.S….

Green [groups] and many locals living in shale gas territory disagree, however, giving birth to an anti-fracking movement that may have more momentum than anything else in environmentalism today…. The International Energy Agency (IEA) has said that the world could be entering a Golden Age of Gas, so plentiful are shale deposits in countries around the world, which means the gas is there. But environmental concerns – if unanswered – could end that age early.

That’s why good regulation – far from retarding the growth of the shale gas industry – might be the only thing that ensures it. Such is the conclusion of a new study released by the IEA this week which found that “golden rules” of regulation are needed to usher in the golden age of gas. Without it, mass opposition could limit fracking altogether….

It really shouldn’t be that complicated. Any industrial activity – and fracking is an industrial activity, especially when done intensively – needs proper regulation. The current rules aren’t enough, but better rules aren’t that difficult. The question is whether the industry – with its kneejerk rejection of government action – will see that regulation is in its own interests, along with the rest of us.

Or consider this advice from a July 2013 essay link is to a PDF file on the lessons of the genetically modified food controversy for the fracking industry: “Regulation is a good thing when novel technologies are being considered: Public confidence in a sound regulatory regime helps to manage concerns.”

In this context, the fracking industry’s longstanding opposition to federal regulation is a mistake. I know there are sound arguments for allowing state regulators to adapt to state conditions and state concerns. But anti-fracking activists have successfully painted the defeat of federal fracking regulation as a divide-and-conquer strategy aimed at fomenting a race to the bottom – that is, aimed at pitting state governments against each other in a competition to offer fracking companies the most business-friendly environment. Consistent, competent, credible fracking regulation is hard enough to achieve – and convince people you have achieved – with a federal regulator at the helm. It’s even harder with every state going its own way.

The fracking industry’s opposition to federal regulation is matched by its equally fervent opposition to local regulation. It wants to deal solely with state regulators. I’m particularly intrigued by the question of how the industry should respond to local bans and moratoria. In the November 2013 elections, for example, four Colorado communities passed referenda imposing a ban or moratorium on fracking. The legality of such local preemptions of state regulatory authority is apparently debatable. So it looks like both the fracking industry and the state government will sue to overturn these local decisions.

Maybe Colorado’s state government is reluctantly going after these local anti-fracking provisions as a matter of principle, to preserve its prerogatives for future controversies. But it’s not as if states usually object when localities try to regulate locally unwanted land uses. (See my 2008 column on “Nimby.”) Anti-fracking activists are persuasive when they interpret the industry’s and state government’s shared intent to sue as a vivid demonstration that the two are in bed with each other.

I’d love to see the industry take the position that regardless of the law, it doesn’t want to be where it’s not wanted, and will honor all local moratoria (and other local fracking regulations) even if the courts decide that they’re not legally binding. Obviously this is tough advice to sell where a lot of money has already been spent on leases, exploratory drilling, etc. – which is true in Colorado. Still, the downsides of fracking in a hostile environment are huge. And those downsides aren’t confined to the communities that pass moratoria only to see them overturned. Even communities that on balance prefer to let the fracking industry in don’t want to feel they have no choice. Over the long haul, I think, the industry would do better to say, “Fine, we’ll go elsewhere, and if you guys ever decide you want us back, let us know and we’ll see how the market looks then….”

The prospect of a statewide moratorium referendum in Colorado is also interesting. Absent a referendum, the fracking battle is mostly between passionate opponents and passionate supporters, with the undecideds and those whose opinions are mild sitting the issue out. There are more passionate opponents than passionate supporters of fracking. (A lot of the passionate supporters are people who have signed or hope to sign leases). But there are more mild supporters than mild opponents; the majority of Coloradans who have an opinion but aren’t passionate enough to get involved are pro-fracking. So I think it makes strategic sense for the industry to welcome a statewide moratorium referendum – and work hard to get mild supporters to the polls so it wins the referendum.

So far the industry shows no signs of taking this advice. But hypothetically, if it did so and won, it could then suggest that opponents got their shot and ought to focus now on monitoring the industry’s performance instead of continuing to try to shut it down. After such a win, the industry would be wise to listen hard to the opponents who just lost, make some real improvements that the opponents wanted, give them the credit for forcing those improvements, and above all set up credible accountability mechanisms so the opponents really could monitor industry performance in ways that mattered.

If companies that are ideologically anti-regulation can’t manage to make themselves support tougher fracking regs, maybe they can at least stop working to defeat those regs. And maybe they can find ways to publicize how tough the regs are already (where they are tough) – to demonstrate as convincingly as truth permits that we don’t have to trust the fracking industry; we can trust the regulators to keep the industry in line.

Consider what happens when a fracking operation flagrantly misbehaves and gets caught, stopped, and punished by a regulatory agency. The rest of the industry has a choice. It can keep the violation as quiet as possible, lest people realize that bad things can happen. Or it can publicize the story, shout it from the rooftops, so people realize that bad actors get caught, stopped, and punished. The former is the industry’s usual posture. The latter would be a lot smarter.

Evidence that people don’t currently see government agencies as sufficiently tough on fracking comes from the 2012 survey link is to a PDF file of Michigan and Pennsylvania residents I discussed earlier. Respondents were asked their own views on the health and environmental risks of fracking. Then some were asked to imagine that the state’s environmental regulatory agency had announced that the risks were “very low,” while others were asked to imagine that the agency had concluded the risks were “very high.” How would their own risk estimates change as a result? Here’s the authors’ summary of the findings:

Under the assumption that state regulators determine risks to be very low, the shift in public opinion is significant from current perceptions, but is much less than under the assumption that state regulators determine risks to be very high. This difference is particularly evident in the case of Pennsylvania respondents, in which the assumption of a finding of low risk shifts the percent of low likelihood responses from 17 to 23 percent, while the assumption of a finding of high risk produces a more significant shift in the percent of high likelihood responses from 26 to 49 percent.

In other words, if the government says fracking is safe, people don’t take the message so much to heart. But if the government says fracking is dangerous, people hear that message loud and clear: “Uh-oh, even the regulators think it’s dangerous.” This is not good news for the credibility of regulators as a source of fracking accountability. People are responding as if the regulators were partnered with (or in the pocket of) the fracking industry, as if regulatory reassurances were all too predictable and thus regulatory warnings all the more alarming.

A 2013 study was similarly discouraging about public confidence in government as a way to keep the fracking industry accountable. Subjects were told that fracking had a specified probability – one in a million, one in a thousand, or one in a hundred – of releasing cancer-causing materials into their water supply. This information was attributed to one of three sources: “your local newspaper,” “industry officials,” or “the EPA.” Then subjects were asked their own opinions. The probability estimate they’d been given had a statistically significant effect on their opinions. But the source didn’t. Ideally, EPA reassurances should be more influential than EPA warnings, since they come from the agency charged with protecting us and thus presumed (in an ideal world) to err on the side of caution. Similarly, industry warnings should be more influential than industry reassurances, since they’re admissions against interest. As it turned out, EPA and the fracking industry were equally influential, no matter what assessment of fracking risk they gave.

Obviously, regulators can’t effectively hold an industry accountable in the eyes of the public if they are no more trusted than the industry itself.

Accountability to neighbors

link up to indexI don’t know whether it is too late to rescue government regulation as a source of fracking industry accountability. It may be doable in time, at least in some states, if the industry allows the regs and their enforcement to get tougher, and if it finds ways to convince the public that the regs and enforcement really have gotten tougher.

In the meantime, if accountability is as crucial a replacement for trust as I think it is, the fracking industry needs a replacement for government regulators as someone to be accountable to.

Neighbors are a possibility.

Local regulation is a kind of accountability to neighbors. But it’s indirect, via local government. And it’s legally and politically problematic. State governments might object to local encroachment on their authority even if the fracking industry itself withdrew its objections.

Nonetheless, there’s a lot that can be accomplished through local regulation: forbidding wellheads too close to schools, parklands, or other especially vulnerable or especially treasured places; requiring compensation for predictable damage to road surfaces and other infrastructure impacts; providing for local inspectors to monitor drilling activities and report unusual events, including possible regulatory infractions; etc.

Beyond local regulation, local accountability can mean many things:

  • Regularly scheduled neighborhood meetings where concerns can be raised and discussed.
  • An 800 number that’s staffed 24-7, so a complaint or a worry (or an emergency that a neighbor was the first to notice) gets immediate industry attention.
  • A full-fledged Community Advisory Panel whose members can learn the ins and outs of fracking and become trusted intermediaries between the company and the rest of the community.
  • Treating individual local critics with respect, taking their concerns and recommendations onboard – ideally before they become renowned troublemakers, but at least afterwards.
  • “Technical assistance grants” to local governments or community groups, so the locals can hire their own expert to look over the company’s plans, periodically visit drilling sites, tell them what to worry about (and what’s not really a problem), and pursue concerns with the company as needed.
  • A website that automatically and endlessly carries real-time video of drilling sites and key data from monitoring equipment, so a community member who wants to know how things are going can simply check, knowing that if something goes wrong the company can’t hide it.
  • Negotiations with stakeholder groups, ending in an agreement that at least replicates regulatory requirements and perhaps goes beyond them, in return for those groups’ non-opposition – with stipulated penalties (enforceable under contract law without need of recourse to regulatory law) if the company is in violation.

This is far from a complete list. A few of the entries on the list are relatively conventional and already in place for some fracking companies in some locations. A few are pretty daring, and a tough sell even to companies that understand the need for local accountability. A few are in the middle.

From the community’s perspective, these local accountability mechanisms are all ways to make the company perform up to snuff, to confirm that it is doing so, and to catch it if it misbehaves – that is, to ensure that the regulators’ job gets done even if the regulators don’t do their job. For a company that intends or expects to misbehave and hopes to get away with it, the cost of this kind of accountability is obviously unacceptable. But for a company that aims to act responsibly and expects it will mostly succeed in acting responsibly, local accountability is far more gain than loss. If you’re going to act responsibly anyway, why not find ways for local communities to notice that you’re doing so, and to feel good that they made damn sure you did?

Accountability to activists

link up to indexAccountability to activists overlaps accountability to neighbors. Local activists are your neighbors – and they’re the likeliest neighbors to volunteer their time to keep you accountable.

Make sure your local accountability efforts don’t exclude local activists, even (especially!) extreme local activists. It may be tempting to exclude them, but it’s profoundly unwise. As U.S. President Lyndon B. Johnson said of FBI Director J. Edgar Hoover in 1971, “It’s probably better to have him inside the tent pissing out, than outside the tent pissing in.” Here’s how I put it in my 2011 column, “Advice about Advisory Groups”:

Should even your most extreme critics get to join your advisory group? Yes. Maybe the other members will moderate their extremism. Maybe the other members will recoil at their extremism. Either way, you’re better off with the extremists inside the room than marching around outside….

Extremists often look for ways to con companies into excluding them from advisory groups. In many cases they’d rather be outside the tent, complaining bitterly that you won’t let them in. So keep offering to let them in, with no strings attached. “Of course you can pursue two strategies in parallel if you wish – in court trying to shut us down while you’re also on the advisory group trying to improve our operations.” Force extremists to choose between the risk of looking marginalized if they stay out and the risk of looking coopted if they come in. This can’t be a fraud. You have to really want them in. But if they decide to stay out, let the onus be on them.

Company-by-company, site-by-site accountability to neighbors and local activists is essential, but it’s woefully inefficient. One of the most exciting developments in fracking accountability is the rise of regional negotiations between the fracking industry and large environmental organizations.

In March 2013, for example, the Center for Sustainable Shale Development (CSSD) was created in southwestern Pennsylvania (Marcellus Shale country). A coalition of environmental groups, charitable foundations, and gas and oil companies, CSSD has promulgated 15 “performance standards” so far – standards it says are “protective of air quality, water resources and climate” and “represent consensus on what is achievable.” It promises more standards to come.

Maybe the standards will evolve into something like a “fracking environmental protection seal of approval,” adopted by companies way beyond the current CSSD membership. Maybe they will evolve into model regulations that state governments can adopt as well.

Of course some non-member environmental groups have come out against the exercise, either because they want to stop fracking altogether or because they think the CSSD standards are too weak. Are the environmentalists who are onboard with the CSSD – the Environmental Defense Fund, the Group Against Smog and Pollution (GASP), and others – sellouts? Are the critics extremists? It’s a matter of opinion (and of definitions). What’s clear is that there’s an ecosystem here. I think it’s a good thing that some environmental groups are staying outside the CSSD consensus, pushing for even more concessions. And I think it’s a wonderful thing that some environmental groups and the fracking industry are starting to negotiate agreements both can live with.

CSSD is the best known of the industry-environmentalist coalitions to emerge with regard to fracking, but it isn’t the only one. In Illinois, for example, the two sides worked together to support a compromise fracking bill. And according to a piece by Kevin Begos and Michael Rubinkam in The Huffington Post, one of the stars of Gasland, Victoria Switzer of Dimock, Pennsylvania, has cofounded Breathe Easy Susquehanna County – not to stop fracking but to persuade fracking companies to adopt emissions-limiting technologies. Begos and Rubinkam say the group “has won plaudits for its non-confrontational style” and “has even attracted pro-drilling residents who had clashed with Switzer and others who spoke out against the industry.”

Once again, I’m not arguing that all critics of the fracking industry should abandon their confrontational style and start negotiating. Both those who push hard from the outside and those who negotiate on the inside are essential to progress. The harder the outsiders push, the more the insiders get; in fact, the outsiders are the main reason industry deals with the insiders at all. The outsiders have been doing their job for some years now, giving the fracking industry more and more incentive to negotiate. But until recently, there weren’t really insider environmental groups to negotiate with. Now there are.

Media coverage of CSSD and similar efforts has focused mostly on the new tone and tactics of some environmental groups, and on the resulting dissension within the environmental community (as if every movement didn’t – and shouldn’t – have both a radical wing and a moderate wing). I’m more interested in what this development signals about the fracking industry, which until recently has been every bit as anti-activist as the activists were anti-fracking.

Part of what we’re seeing is a growing recognition by the industry that it needs to ratchet up its environmental performance. But just as significant – more significant from a risk communication perspective – is the industry’s growing recognition that it needs somebody who can credibly make it ratchet up its environmental performance, and credibly point out that it has done so. Trust in the fracking industry will remain low for the foreseeable future. Accountability is the only way to go. Since third-party neutrals and government regulators lack credibility, fracking companies are beginning to look elsewhere for someone to hold them accountable. Neighbors and activists appear to be the best available options.

Some Additional Recommendations

number 1

Offer to test people’s well water.

link up to indexA lot of shale gas and shale oil exploitation takes place in areas where methane was already leaking into people’s wells before there was any fracking whatever. But neighbors may claim that their well water got much worse after fracking began. Sometimes it really did. Sometimes they mistakenly think it did. And sometimes they haven’t forgotten how bad their water has always tasted, but now they have a wealthy company to blame it on and maybe get some compensation. The only effective way to distinguish legitimate from illegitimate contamination claims is to test people’s well water before you start fracking.

Of course the testing itself needs to be credible, done in such a way that neither the company nor the landowner can cheat.

Sometimes people don’t want their water tested. Fine. Then the company needs to explain that their unwillingness to permit their water to be tested beforehand will probably undermine any contamination claims they might have afterwards. The company might also find legal ways to test without permission. Or if a landowner is worried that an on-the-record test could damage property values, it might be possible to have the test results sealed, to be looked at only if the landowner later raises a concern.

It is fair to suspect that landowners who refuse to let the company test their water before fracking begins may be planning to file an unjustified contamination claim. It is also fair to suspect that fracking companies that don’t make the effort to test their neighbors’ water before fracking begins may be planning to contest a justified contamination claim.

I advise my clients to go beyond simply proposing to test people’s water. I urge them to offer to sign an agreement stipulating that any significant decline in well water quality after fracking begins is prima facie the company’s fault if it involves a contaminant that could have been released by the company’s activities. The agreement might also specify what is to be done if that happens, to make the landowner whole. The goal is to help people feel that they’re protected in case things go wrong. And of course the company’s willingness to commit to protect them in case things go wrong is persuasive evidence that the company thinks things won’t often go wrong.

number 2

Stop talking about “education.”

link up to indexFar too frequently fracking industry leaders and even fracking industry communicators intone that the industry needs to do a better job of “educating” the public about fracking.

Not that they’re entirely wrong. Public ignorance and activist misinformation are indeed part of the problem. But most of the industry’s bad reputation is self-inflicted: overstating benefits, ignoring or minimizing risks, refusing to say what’s in the frac fluid, opposing tough regulation, etc.

My fracking industry clients are weirdly self-deceptive about this. On the one hand, they know what they’re doing wrong. When I cover some of the ground in this column with them, they don’t deny my points. They know they have earned the public’s distrust. But activists’ exaggerations and misstatements loom larger in their minds than their own. And the public’s technical misperceptions (exactly what hydraulic fracturing is, for example) loom larger in their minds than the public’s accurate perception of their industry’s spotty record of performance and worse record of deceitfulness. When they tell each other or the media or a community meeting that everything would be fine if only they did a better job of public education, they’re mistaken. But they’re usually sincere.

Not surprisingly, the public finds this claim insulting, especially the segment of the public that is skeptical or hostile. Few things are more guaranteed to arouse stakeholders’ outrage than telling them that they’re ignorant and would be on your side for sure if they just understood the facts.

Fracking industry spokespeople need to learn that their critics have plenty of facts on their side too. Even more important, they need to learn that the fracking debate is about values at least as much as facts. Filling in people’s information gaps and correcting their information errors – telling them the ways in which they’re wrong – is something that should be done with due acknowledgment that their skepticism is justified and the burden of proof is on you; and that should be done only after candidly and empathically acknowledging the ways in which they’re right. That’s if you do it at all. Many of the public’s information gaps and information errors have little if any impact on the controversy and are hardly worth correcting.

There is almost never a time when it’s useful to tell people (especially critics) that you intend to “educate” them.

number 3

Get straight on whether fracking is new or old.

link up to index I know that hydraulic fracturing dates back to the 1940s. I also know that “modern” hydraulic fracturing, which has opened up huge, previously untappable deposits of shale gas and shale oil, dates back only to the 1990s. With DOE funding at the beginning, oil entrepreneur George P. Mitchell worked for decades before he finally figured out a way to use horizontal drilling, high-resolution imaging of rock surfaces, microseismic fracture mapping software, and various other innovations to unlock the gas in the Barnett Shale in his home state of Texas. That was the start.

There are ways in which today’s fracking is an old, “mature” technology, and ways in which it is new and innovative … and, like other innovations, with possible side effects that have yet to be thoroughly assessed.

The fracking industry tries to have it both ways. It is justly proud of having revolutionized the gas and oil industry, and thus the entire energy industry. It says so aggressively in shareholder reports and other industry documents, prattling on endlessly about “innovation.” But when fracking spokespeople turn to stakeholder environmental concerns, they are sure to stress that fracking goes back more than 60 years, “so we know what we’re doing and we know how to do it safely.”

It would be helpful for fracking companies to explain exactly what’s old and reliable and what’s new and exciting in the technologies they’re using. At least they should acknowledge that there’s some of each – and stop calling the same technologies “new and exciting” in their annual reports and “old and reliable” in their responses to criticism.

number 4

Try not to fracture communities into beneficiaries and victims.

link up to index Strictly in terms of impacts, fracking divides a community into three rings:

  • Those who sign leases and collect or hope to collect royalties are, of course, pro-fracking. (Or at least they thought they were when they signed the lease.) They endure more of the minuses of fracking than anyone else, but they also get more of the pluses than anyone else. In risk perception terms, the risk is fair (high-hazard, high-benefit), which makes it low-outrage. Lease-holders usually see themselves as mostly the beneficiaries of fracking.
  • Those who live near drilling operations but aren’t going to get any royalties are the likeliest to oppose fracking. They bear more than their share of the minuses – possible air and water contamination; possible property value decline; virtually certain noise, dust, and truck traffic – without compensating benefits. The risk is unfair (high-hazard, low-benefit), which makes it high-outrage. Near neighbors may well see themselves as mostly the victims of fracking.
  • Those further from drilling operations don’t experience the minuses so much. That makes them more receptive to the generalized community pluses of increased prosperity. So they’re likely to be pro-fracking. The risk is fair (low-hazard, low-benefit), which makes it low-outrage. Distant neighbors probably see themselves as more beneficiaries than victims of fracking.

If the fracking battle gets locally heated, community members in the middle ring can easily become alienated from their neighbors, and company efforts to build support in the other two rings may exacerbate the polarization. This is a potential social impact of fracking that is too seldom acknowledged: It can fracture communities, not just shale.

There are other factors also at work, of course, and thus other ways local fracking controversies can fracture communities. Unemployed or marginally employed people tend to be pro-fracking because they desperately need the jobs. Wealthy retirees who have relocated in search of beautiful surroundings tend to be anti-fracking because they want to keep their surroundings beautiful and don’t need the money that prosperity brings. Politically oriented people tend to be anti-fracking if they’re liberals and pro-fracking if they’re conservatives because that’s the prevailing view in the circles they move in. Owners of retail businesses tend to be pro-fracking because they want more customers with more cash to spend. And individual members of all these demographic groups sometimes study the issues and reach their own independent conclusions. The three rings of beneficiaries/victims/beneficiaries account for only some of what’s going on.

It goes without saying that fracking companies should try to diminish the minuses for the middle ring. Much more controversial – but potentially very useful, I think – is to look for ways to increase the pluses for the middle ring. Beyond compensating people for specific, unintended harm (like contaminating their well water), companies might consider compensating them simply for putting up with a fracking operation as a close neighbor. This has to be done carefully so it doesn’t feel like a bribe. The trick is to acknowledge that they really are bearing more than their share of the minuses of fracking, and so deserve a decent share of its pluses as well. The acknowledgment itself has considerable power to diminish outrage in the middle ring, while it simultaneously converts what might otherwise feel like a bribery attempt into just compensation, or even reparations. Of course if people start demanding just compensation, you don’t have to worry about their feeling bribed and can negotiate freely.

Or you can let someone else do the negotiating for you. I have several mining industry clients, for example, that have arranged for a small percentage of revenues to flow automatically to a foundation or other community group tasked with figuring out how best to spend the money – partly to benefit the community as a whole but especially to achieve fairness by compensating those whose share of the mine’s minuses would otherwise exceed their share of its pluses.

number 5

Pay early attention to individual complaints.

link up to indexMany of the most passionate local opponents of fracking didn’t start out that way. They had a concern. They raised it. The company ignored them. They raised it a few more times. The company kept on ignoring them. Then they became passionate opponents of fracking.

This is true of activism in general: A large percentage of dedicated activists were ordinary folks who got ignored or mistreated, had to decide whether to give up or get serious, and picked the latter. But the pattern seems to be especially prevalent among anti-fracking activists.

I remember a consultation with a fracking industry client a year or so ago. We were talking about a particular critic who had managed to win considerable attention from regulators and the media, becoming one of the principal thorns in the company’s side. The question on the table was how best to deal with Susan Brewster (not her real name). I asked for some background about the company’s earliest interactions with Susan. We had to piece together the backstory; different people in the room knew different parts of it. Several times Susan had called the company’s attention to impacts on her water. Each time the company had told her she was imagining things. Once some company middle managers actually went out and experienced some of what she’d been talking about firsthand … and the company still told her she was imagining things. Only after she became powerful did the company start taking her seriously.

For the most senior person in the room, this history was an epiphany. “My God,” he said. “We created Susan Brewster.”

The key lesson here is to pay early attention to individual complaints.

What should the company do now about Susan Brewster? Among my recommendations:

  • Apologize. Be sure you say explicitly what you’re apologizing for: not just mucking up her water, but also ignoring her valid complaints. And be sure you give her plenty of opportunities to berate you publicly for what you did; apologizing doesn’t preempt people’s right and need to vent.
  • Make your apology as public as possible. Put it on YouTube. Better yet, ask Susan if it’s okay for you to tape it, then give her a copy that she can put on YouTube if she likes. This has several advantages. It’ll help reduce Susan’s outrage. It’ll keep Susan or anyone else from distorting what you said. And even if Susan remains your opponent – which she probably will – it will help other stakeholders forgive you and move on … and think Susan really should do the same.
  • Invite Susan to get involved in constructive ways. Maybe she’d like to review your plans for coping with future environmental problems. Maybe she’d like to do an onsite inspection. Maybe she could help you develop a standardized protocol for dealing with community complaints. Maybe you could even make her your ombudsman, to sit in on discussions about other neighbors’ complaints and make sure the company listens and responds appropriately.
number 6

Take a stand against corporate bad actors.

link up to index From time to time I ask my fracking industry clients which companies are doing the worst job – not necessarily the worst risk communication (outrage management) job, but the worst job of preventing and mitigating environmental problems. They won’t always tell me the answer. But they always have an answer. They always know who the bad actors are.

It’s probably too much to expect for a fracking company to blow the whistle on another fracking company. They’re in the same industry associations. They have to work together and sit next to each other at meetings and luncheons; they recruit each other’s managers. (The phrase “honor among thieves” also comes to mind.) And whistleblowing could all too easily backfire, precipitating retaliation or attracting unwelcome attention.

But after others have identified the bad actors, is it too much to expect for the rest of the industry to take the information onboard? Activist groups periodically publish lists identifying which companies have the highest rates of regulatory infractions. (Regulators themselves less frequently publish such lists.) But it’s rare for an industry association to take any action against the worst offenders.

And it’s rare for an individual company to distinguish itself publicly from the bad actors. Fracking companies routinely defend the environmental record of the entire fracking industry. But they have made a conscious decision not to compete on environmental responsibility.

Even when an egregious case of environmental irresponsibility is discovered, exposed, and punished, other companies either mount a defense or stand mute. Nobody ever says, “Yes, that was awful what they did. It’s a good thing they got caught. If you’re wondering whether we’re just as bad, here’s how you can tell we’re not….”

Self-policing – especially publicly visible self-policing – is rare in most industries. Even the professions like law and medicine that have established procedures for kicking out bad actors use those procedures too seldom to be credible. And it’s considered unethical for a lawyer or doctor to point out publicly that another lawyer or doctor has a bad record. I don’t expect the fracking industry to break new ground here, although I think doing so might be a game-changer.

number 7

Stay away from “special” places.

link up to indexThe community relations person for one of my fracking industry clients complained to me not too long ago: “Operations put a drill pad right across the street from an elementary school. The timing was horrible. They needed a site, but they left us with little to no time for local outreach. The decision to move forward made the school the epicenter for the anti-fracking movement in the area. What were we thinking?”

I get it that the engineers who make most key decisions in fracking companies don’t see any reason to avoid schools. And they’re technically right. If fracking were too dangerous to allow across the street from a school, then it should be too dangerous to allow anywhere near anybody.

Nonetheless, putting a drill pad near a grade school is courting outrage. So is putting a drill pad near a much-loved park, or putting one where it will ruin a cherished viewscape. The mobile telephone industry has long since learned to avoid “special” places when choosing sites for cell towers. The fracking industry should learn the same easy lesson.

number 8

Acknowledge the history of fracking misbehavior.

link up to indexAcknowledging prior misbehavior (link goes to website Vimeo) is always on my shortlist of outrage management strategies. A company or industry that expects to be forgiven for what it has done in the past must own up to it first – not just once but often; not just factually but with visible contrition; not just when your critics raise the issue but proactively, raising it yourself until your critics are sick of hearing about it.

All this is especially the case for a company or industry that has improved or proposes to improve. My clients routinely ask me whether they can’t just do better in the future, without necessarily admitting what they’ve done wrong in the past. That option is easier on corporate egos, but it has two huge drawbacks. First, your critics are reluctant to let go of your prior misbehavior until you have wallowed in it sufficiently. And second, your critics and even neutrals will be slow to notice how much you have improved if you’re not willing to make explicit comparisons of your current and future performance with the way things were in the bad old days.

Of course I’m talking here about environmental performance. But I’m also talking about risk communication. “We used to shrug off our neighbors’ complaints without even investigating them.” “We used to require nondisclosure agreements in order to keep our screw-ups secret.” “We used to avoid any kind of negotiation or even dialogue with opponents.” If you’re really going to change these industry-damaging bad risk communication practices, it will help to acknowledge that you have been guilty of them in the past.


I realize that many – not all – of the recommendations in this column could add considerably to the cost of doing business. And I realizing that the fracking industry is already the victim of its own success, especially on the natural gas side. The supply of gas is way up, so the price of gas is way down – and business opportunities that looked immensely profitable to the industry when it started signing leases may look marginal today. So there’s not a lot of money to spare for outrage management.

But at least in the developed world, the cost of outrage is now higher than the cost of outrage management. An industry that can’t afford to ameliorate stakeholders’ outrage without going out of business is going to go out of business anyway. Unmanaged outrage will force it out of business.

That’s why the fracking industry is finally paying serious attention to the growing anti-fracking movement. However belatedly, the industry is coming to realize that anti-fracking stakeholder outrage poses an existential threat. Figuring out how best to ameliorate that threat should be – and I think will be – a top industry priority for the foreseeable future.

The industry can’t succeed without improved environmental performance. But it can’t succeed without improved risk communication either.

Copyright © 2013 by Peter M. Sandman

For more on outrage management:    link to Outrage Management index
      Comment or Ask      Read the comments
Contact information page:    Peter M. Sandman

Website design and management provided by SnowTao Editing Services.