Saturday, September 10, 2011

The Problem with State Records

I recently started a project to identify state environmental enforcement at oil and gas wells, including hydraulically fractured wells.  In trying to locate this information, I was surprised to discover states' divergent methods of collecting and sorting information.  Pennsylvania's Department of Environmental Protection, for example, lists on its website all violations and enforcement activity (scroll down) in the oil and gas area and describes this activity in enough detail to show the activity that caused the violation as well as the laws that were violated and/or enforced in each case.  It also describes which enforcements occurred in the Marcellus Shale--the formation in the state in which hydraulic fracturing is common.  A New York Department of Environmental Conservation staff member, on the other hand, indicated that New York does not maintain a separate database of enforcements and violations.  Many other states appear to keep separate enforcement records but only in paper form.  (North Dakota and Montana, for example, are just now switching to an online system, and Texas appears to have some oil and gas enforcement data available online, but it has no easily accessible online data for the many cases with violations but no enforcement.)  Colorado (see "Orders") similarly posts formal orders and associated documents online, while requiring more extensive searches for the many violations that do not lead to formal orders.  Ultimately, compiling a  list of environmental law violations at oil and gas wells in most states is quite difficult.  In many cases, one would have to search thousands of individual well files and look for violations in each in order to make this list.  Perhaps members of the public should have to invest in this rather unwieldly effort if they are genuinely interested in knowing about enforcement. But agencies, who are familiar with this information and produced it in the first place, seem better situated to take on the task.

In the course of my search for enforcement data, I was even more surprised by the variation in state public records laws and state responses to public records requests (both formal and informal).  Pennsylvania, for example,  has a number of sweeping exemptions that enable broad denials of requests.  The state's Right to Know Law exempts all "[i]nvestigative materials, notes, correspondence and reports" of agencies from public disclosure, for example, and contains twenty-nine other exemptions.  Agency employees in other states seemed to strongly resist my efforts to get enforcement data (one response:  "Crazies call all of the time looking for these records"; another: "We're concerned about what people would do with the preliminary data"), while staff in states like Michigan promptly sent enforcement files and answered questions about staff numbers and total numbers of enforcement actions in various years.

If we really want to know whether environmental laws are working--whether they are controlling the potential effects of drilling and fracturing for oil and gas, for example--we need to know whether states are enforcing them consistently and correctly.  We also need to know how many staff members are available to do this enforcement work.  The current online and paper data do not consistently offer this sort of information in an accessible format.  It's a shame that even when some information is available, states do not, in many cases, make it easily accessible.  Hopefully as online agency enforcement logs become more common, as states notice other states' approaches to collecting and publishing information, and as the public demands more information, this situation will improve. With ongoing state budget struggles, however, even efforts as simple as updating an agency website may end up on back burners.

-Hannah Wiseman

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