REASONS FOR BAN ON FRACKING:

• water reserves for drinking, agriculture and recreation affected by the volumes used and the chemicals added by fracking.  Said chemicals cannot be contained due to Florida’s unique porous and frangible strata.  

• effects on human health

• effects on natural habitats

• economic decline in revenue from tourism and financial burden on health systems

• this proposal does not restrict the right to extract oil and gas on private land, but restricts the method of extraction (See recent May 2017 Bert Harris ruling by Florida Supreme Court)

• a ban reflects the consensus of almost 80% of Floridans based on population of 32 Counties and 52 cities restricting fracking

• corporations refuse to disclose chemical formulas claiming trade secrets, adding further concern about the effects on health by fracking.

• the ban on fracking is supported by the Florida Constitution, Article II, Section 7 which states: “It shall be the policy of the State to conserve and to protect its natural resources.”  (See attached executive summary.)

• a Univ. of GA study confirmed the frangibility and permeability of Florida strata has difficulty to contain high volumes of water and chemicals under high pressure. (Journal of Geography and Geology; Vol. 6, No. 4; 2014 ISSN 1916-9779 E-ISSN 1916-9787). See further discussion in summary below. The report examines the fractious geology of Florida strata and the difficulty in containing liquids within a limited area when injected underground under high pressure.

• proposed Amendment is attached for consideration

Proposed Amendment:

Hydraulic fracturing prohibited—

1) DEFINITIONS. -As used in this section, the term:

(a) “Well Stimulation Treatment” means a treatment of a well to modify the permeability of the underground geologic formation with the purpose of oil and/or gas production or recovery. The term means any well intervention, whether at high or low pressure, whose purpose is to fracture or dissolve such formation to improve the flow of hydrocarbons from the formation into the wellbore. Well stimulation does not include conventional cleaning procedures that do not affect

the integrity of the well or the formation.

(b) “Flowback fluid” or “Flowback”; means a fluid or a mixture of fluids of any phase recovered from a well that has been subjected to a well stimulation treatment. The flowback fluid may include materials of any phase including liquid, gas or solid.

2) Prohibitions:

(a) Well stimulation conducted for the purpose of exploring for, producing, or recovering oil or gas within this state or in the state’s territorial waters is prohibited.

(b) (3) Flowback or other wastewater resulting from well stimulation may not be stored, treated, discharged, or disposed of in this State.

Executive Summary:

Fracking is a method for oil and gas extraction.  We are advocating banning fracking as a method of extraction in the State of Florida.  Private land rights to drill for oil and gas are still in force but this amendment bans the use of the recovery of oil and gas by well stimulation using the fracking method.  Approx. 80% of the population represented in 39 Counties and 52+ cities have passed ordinances or resolutions to ban fracking.

The ban on Fracking has brought concerns for private land rights as interpreted by the Bert Harris Act.  The Florida Supreme Court ruled in May 2017 the Bert Harris Act should be narrowly interpreted taking into consideration that the general community must be considered if affected by the actions of the individual land owner. (See Randall Denker Letter to Hon. Richard Corcoran, June 21, 2017).   We believe that we have sufficient evidence for concern that fracking cannot be contained within the boundaries of the individual but have potential to affect communities, aquifers used for drinking water and coastlines/rivers where marine life exists many miles away.  The evidence points to the unique Florida geology of limestone and its permeable & fractious nature allowing for contaminants to flow through the porous channels. The fact that companies using fracking are not required to provide the chemicals used in their fracking compounds due to trade secrets offers further concerns of what will show up outside the immediate area where drilling occurs.  

The request for a ban on Fracking is further supported by the Florida Constitution, Section 7 which states:

“It shall be the policy of the State to conserve and protect its natural resources and scenic beauty.  Adequate provision shall be made by law for the abatement of air and water pollution and of excessive and unnecessary noise and for the conservation and protection of natural resources”.

Discussion on the Geology of Florida

In the Journal of Geography and Geology; Vol. 6, No. 4; 2014, Sydney T. Bacchus , Sergio Bernardes , Thomas Jordan & Marguerite Madden from the Univ of Georgia reported on Deep Well Injection studies using Helium and Nitrogen Isotopes as tracers.  The study showed fault lines throughout southern Florida and effluent (sewage and wastewater) traveling distances from the original entry site by analyzing the concentration of tracers at various points away from its origin.  Using this analogy and the correlation of injecting under high pressure, liquid and solids downhole, the comparison between Deep Well Injection and Fracking have a strong correlation to each other.

Conclusion: The above study confirms that the high level of fracturing and permeability of the Florida Strata has difficulty to contain high volume of water and chemicals under high  pressure.   

Memo To: Conservancy of SW Fla., Inc.
Fr: Ralf Brookes Attorney, Board Certified in City, County and Local Government Law
Date: March 3, 2017
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SB 442 will not result in unconstitutional regulatory takings of private property or require compensation
under Florida’s Bert Harris Act (70.001, Fla. Stat.)

It is important to note that:
• SB 442 still allows conventional oil and gas drilling and extraction alternatives that would permit
exploration and production at oil and gas wells in Florida.
• SB442 does not prohibit routine well cleaning that does not affect the integrity of the well or the
geological formation, or any other techniques used for routine well cleanout work, well maintenance, or
removal of formation damage due to drilling or production, or acidizing techniques used to maintain or
restore the natural permeability of the formation near the wellbore.
• SB 442 did not directly appropriate private property, or would SB442 oust the owner from his property
or even prevent extraction of oil and gas by conventional techniques commonly in use in Florida.
• Nothing in SB 442 prevents the exploration and extraction of oil and gas in Florida. Conventional oil
drilling is not prohibited, just certain extreme activities falling within the definition of well stimulations.
Claims of unconstitutional regulatory takings seeking compensation for interference with natural resource
extraction activities have been addressed by courts already, and the courts have typically found no regulatory
taking requiring compensation.
• The Supreme Court’s ruling in Keystone Bituminous Coal Association v DeBenedictus, 480 U.S. 470
(1987) precludes reliance on the concept of physically or conceptually severed property rights as a basis
for a compensable taking of coal rights because some coal is left in the ground.
• The United States Supreme Court has already held that prohibiting a gravel pit from excavating below
the town’s water table was not a taking in Goldblatt v. Hempstead, 369 U.S. 590 (1962). The Supreme
Court conceded that even though the law completely prohibited a prior use by an existing gravel pit that
had been operating for 30 years, depriving the property of its most profitable use, did not make the law
unconstitutional, nor a taking.
• SB 442 is not “so onerous that its effect is tantamount to a direct appropriation or ouster” as the
functionally equivalent to the classic taking. Lingle v. Chevron U.S.A. 125 S. Ct. 2655 (2005).
Florida’s Bert Harris Act (70.001 Fla. Stat.) applies to mere dimunition in value when a specific action of a
governmental entity has “inordinately burdened” the property and the owner is “permanently unable to attain
reasonable investment-backed expectation” for an “existing, [nonspeculative] use of real property, or a vested
right to a specific use of real property”
• Similar to takings analysis, the courts will look at all the uses “with respect to the real property as a
whole” in a Harris Act claim. SB442 does not prohibit conventional existing or vested oil and gas wells
and will not prohibit the use – natural resource extraction of oil and gas - by conventional means.
• To my knowledge, there are no existing or vested wells utilizing the well stimulations that would be
prohibited by SB442.
• Without some non-speculative existing or vested use no valid Bert Harris act claim can be made

Letter from Law Office of Randall Denker _________________

552 EAST GEORGIA STREET TALLAHASSEE, FLORIDA 32303

FAX: 850-893-6753 TELEPHONE: 850-893-6753

randiedenker@gmail.com ________________________________

June 21, 2017

The Honorable Richard Corcoran, Speaker Florida House of Representatives

420 The Capitol 402 South Monroe Street Tallahassee, FL 32399-1300

Dear House Speaker Corcoran:

I am an environmental attorney with 40 years experience. I have worked in government (as an FDEP enforcement attorney) and in the private sector (as owner of my own law firm for 30+ years.) My law practice has concentrated in the area of surface and groundwater pollution and I have practiced all over the state of Florida. (www.waterswithoutborders.net)

It has come to my attention that you recently were at Café Con Tampa and expressed your opposition to fracking in Florida. First, let me say kudos!

However, you also expressed concern about a state-wide ban because of the potential for “taking” lawsuits under the Bert Harris Act. I want to allay your concerns about the Bert Harris Act. I believe the history of the Bert Harris Act shows that it is a red herring tossed around by the extraction companies for the purpose of intimidating legislators.

I want to share my perspective on the legal realities of this statute, so that hopefully you will no longer give it any serious weight. The Bert Harris Act was first passed in 1995. In the intervening 22 years, there have only been 15 reported cases involving this statute.* . The reason for the paucity of cases is that the Act allows the prevailing party to recover attorney fees. This has acted as a powerful deterrent to filing suits because if a landowner overestimates the strength of his case, the consequences of his miscalculation can be financially ruinous. A losing landowner pays his own attorney and the government’s attorney. As a result, owners have been very reticent to file suits under the Act.

An analysis of the reported cases shows that of the 15 reported cases, almost all of them were decided in favor of the government.

There is only one reported case squarely in favor of a landowner: Citrus County v Halls River Development, Inc., 8 So 3d. 413 (Fla 5th DCA 2009.) This case involved a rescission of previously-granted property rights. The owner in question had met the County’s Comprehensive Plan, the Land Development LDC, gotten approval from the U.S. Army Corps and the SW Fla. Water Management District, and obtained a ruling by the County Commission after a public hearing that it was entitled to build a 56 unit condo. Later, the County passed a zoning ordinance that nullified previously granted permits and limited the owner to a single unit on 11 acres of expensive riverfront property. The court found that it was “an inordinate burden” under the Bert Harris Act and that the public should “share the burden.”

However, it should be noted that just last month, the Fla. Supreme Court interpreted the Bert Harris Act in Hardee County v FINRII, Inc., Case No. SC 15-1260 (May 25, 2017), after a conflict developed between two lower appellate courts. The Supreme Court ruled that the Act should be interpreted very narrowly because it waives state sovereign immunity and therefore, it is important to protect the public purse. This means that it will hereafter be even more difficult for owners to prevail under this Act.

The case most similar to a fracking-type situation is Holmes v Marion County, 960 So. 2d 828 (Fla 5th DCA 2007.) In that case, a landowner was running a landfill in a former mine. The landfill was operated pursuant to a permit but when the permit came up for renewal, it was denied, putting the owners out of business. They sued Marion County for $2.6 million. It was undisputed that the business had been highly profitable and that, if the permit had been reissued, the owners would have made at least an additional $1.5 million in 3 years. However, the neighbors opposed the renewal of the permit, testifying that it was a nuisance, creating garbage, odors, dust, and noise. The Court ruled that the denial of the permit and the closing of the landfill did not constitute an “inordinate burden” (the standard under the Bert Harris Act) and therefore, the government’s decision to deny the permit was justified to protect the public well-being, even though it had the effect of putting the landfill out of business.

What this means is that the State of Florida has little to worry about if it adopts a statewide-ban on fracking. We already know this because many counties have banned fracking and there are no reported cases of successful Bert Harris Act lawsuits, although of course, threats are always made in an attempt to intimidate.

Recently, I was asked to weigh in when an oil company threatened to sue Wakulla County, which had just passed a fracking ban. What I discovered is that the energy company’s rights to frack were not legally sustainable because their reservation of subsurface mineral rights had all been extinguished by Florida’s Marketable Record Title Act, an act that extinguishes such reservations of rights after 30 years. The oil company made the usual legal threats but they were merely an impotent display.

When New York passed a state-wide fracking ban in 2014, the extraction companies vociferously threatened to sue and the state braced for an onslaught of lawsuits. But none came. In the intervening years, only one suit was filed and it was thrown out before coming to trial. Read more here: http://www.pressconnects.com/story/news/local/new-york/2017/04/20/ny-bans-frackingbut-lawsuits-dont-follow/100703032/.

In Florida, the case law shows that, in order to prevail, an extraction company would need to show that it had an ongoing long-term business in that specific location that was profitable, fully permitted and vested (development permits, by their nature, are never vested) and that a statewide ban kept the company from making any other profitable uses of their land. This means that the litigant would have to show that, but for the fracking ban, he would have been able to get all necessary federal, state and local permits (speculative) and that he would have been able to successfully extract sufficient oil or gas to have made a sustained profit (also speculative.) Courts do not award money judgments based on speculation. They award money judgments based upon a demonstrated track record and documentation of prior sustainable earnings.

As you continue to think about a statewide fracking ban, please also remember that our own Florida Constitution, Article II, Section 7 states:

" It shall be the policy of the state to conserve and protect its natural resources and scenic beauty. Adequate provision shall be made by law for the abatement of air and water pollution and of excessive and unnecessary noise and for the conservation and protection of natural resources."

In other words, clean air and water are constitutional rights. Fracking is not a constitutional right.

When the Legislature reconvenes, I hope that you will protect our beautiful state by supporting a ban on fracking. If you wish to discuss anything with me,

I remain at your disposal to answer questions.

Sincerely,

Randall Denker, esq.

Denker Law Office & Offices of Waters without Borders

552 East Georgia Street Tallahassee, Fl. 32303 (850) 893-6753

waterswithoutborders@embarqmail.com