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When Mineral Rights Came Before Public Health

Property rights and public safety

March 10, 1997 | By Keith Schneider
Great Lakes Bulletin News Service

In January, when Carl Mikolajcak first smelled the rotten egg odor of poisonous hydrogen sulfide gas, he was in his shop in Filer Township just south of the city of Manistee. The cloud came from a natural gas well being drilled in his neighborhood. It caused a headache and nausea. His wife and granddaughter also were sickened. "If we had not been able to leave the area immediately, we could have been in real trouble," he said.

To the dismay of residents of southern Manistee County, such incidents have become all too familiar. Hydrogen sulfide (H2S), a byproduct of oil and gas drilling, is a chemical compound of such potent toxic properties that its killing and nerve-destroying power are comparable to cyanide. Last summer, 11 people in Manistee Township were rushed to the hospital as a result of a release of hydrogen sulfide from a natural gas well in a heavily populated commercial area. In 1994, four children and an elderly woman were hospitalized after a leak of H2S from a compressing station south of Manistee.

Sharlene Wild, chairwoman of the Manistee County Board of Commissioners, has called for a task force to study the health risks from hydrogen sulfide. "The county has the responsibility to protect its citizens," she said. "There is much more about this that we don’t know, and that we need to know."

Information, though, has not been forthcoming from the industry or the state. "The way everybody has responded, it’s as though it never happened," said Kathryn Kenny, the co-owner of Port City Diesel and Truck Service, who was one of the 11 people injured in the Manistee Township release. "It just seems like everybody but us wants the whole thing to disappear."

Residents in Manistee are becoming justifiably worried. The Michigan Oil and Gas Association has sought to diminish the significance of the releases, saying the industry’s safety record in Manistee County has been good.

For its part, the Department of Environmental Quality has sought to explain away two of the incidents, saying they occurred during "normal and routine" procedures. Given its lack of resolve, the DEQ accepted at face value an obviously inaccurate internal assessment of the Manistee Township release, conducted by the company that owns the well, that claimed not enough H2S escaped to cause the injuries.

In January, at the urging of residents, the Filer Township board filed suit to permanently plug one gas well, located in a neighborhood, that contains an astonishing 43,000 parts per million of H2S, a level tantamount to having a nerve gas factory operating in a village square.


How is it that Lansing is looking the other way when industrial activities are causing widespread injuries? Part of the answer is that the DEQ says it has no authority to consider health and safety when reviewing and approving new oil and gas wells.

The other part lies in the Engler Administration’s embrace of a radical interpretation of the Constitutional protections for private property. "We have to be careful that we don’t exclude the development of mineral interests when there is no feasible and prudent alternative," said Hal Fitch, the DEQ’s Assistant Supervisor of Wells, when asked about the safety concerns. "It does raise the issue of taking without compensation."

The Fifth Amendment to the Constitution says that "just compensation" must be paid when property is taken for public purposes. The Engler Administration, however, is reformulating that mandate to include restrictions on property designed to safeguard human health and natural resources. In such cases, according to the Administration, property owners are entitled to maximal taxpayer-funded payments.

To date, this extremist view of property rights law has been used primarily to aid industrial interests in environmental cases. At the Governor’s urging, the state paid out nearly $100 million in taxpayer funds to a Traverse City oil company and a group of mineral owners who were barred from drilling in the Nordhouse Dunes wilderness near Ludington. The precedent, and the amount of the settlement, has been cited by the DEQ as justification for its kid glove handling of a private businessman who wants to drill a well in the undeveloped, spectacular Jordan Valley.


Now the harmful results of this one-sided interpretation of property rights law are showing up in places like Manistee County, where residents are told that their safety is less of a priority to our state’s government than an oil company’s right to make some money.

Isn’t it the primary responsibility of government to protect its citizens? In nearly any other state capitol, there would be no question that life-threatening industrial practices have no place in residential neighborhoods. In Michigan, however, it’s all been turned upside down. Here property rights come before safety.

So in Filer Township officials are depleting their treasury to protect citizens from state actions. Dangerous wells continue to operate there. At least 15 people have been injured. The threat is real, not theoretical. Nothing in the annals of American jurisprudence, or common sense, justifies such an abandonment of governmental responsibility.

A version of this article was published in the Detroit Free Press on March 10, 1997.

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