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Regulators order Marathon Oil to pay $64.5M for ‘illegal pollution’ on Fort Berthold Reservation
Flares at well pad sites began to dominate the landscape of the Fort Berthold Reservation since the first oil leases were signed in 2007 as seen in this Feb. 8, 2019 photo. The EPA announced July 11 it "will hold corporate polluters like Marathon accountable for violations that put communities and our futures at risk,” said Assistant Administrator David M. Uhlmann of EPA’s Office of Enforcement and Compliance Assurance. (Photo Credit, James Brugh)
'This fine just proves what the people of the Fort Berthold Indian reservation have known for a long time'
Marathon Oil Co.’s air quality violations on the Fort Berthold Indian Reservation have drawn the largest civil penalty in United States history for flaring activity and emissions from “stationary sources,” federal agencies announced on July 11. The $64.5 million assessment comes as a complaint settlement for creating “thousands of tons of illegal pollution,” according to the Environmental Protection Agency.
According to the complaint, 86 Marathon oil and gas production operations on Fort Berthold have violated emissions standards and requirements. The facilities release thousands of tons of volatile organic compounds, carbon monoxide and methane into the environment – mainly through flaring.
“This fine just proves what the people of the Fort Berthold Indian Reservation have known for a long time, especially those of us who live and work in the West Segment, Mandaree,” said Todd Hall, a Three Affiliated Tribes citizen and rancher on Fort Berthold. “That some oil and gas operators are putting profits over people and the land we live on,” he told Buffalo’s Fire.
James Brugh, another citizen of the Mandan, Hidatsa and Arikara Nation who lives on Fort Berthold, was “not surprised because it’s something that I, as an individual, have known that Marathon has been doing for many years,” he said.
Brugh hopes the EPA ruling sets a precedent to begin protecting MHA citizens who constitute the Three Affiliated Tribes. It’s important “anytime you can get [the oil and gas industry] to be accountable, especially for the health of communities, especially minority communities [and] places where we’re being underrepresented.”
The comment period for the consent decree has yet to be scheduled by the United States District Court, District of North Dakota, Western Division. It will be open for 30 days.
The EPA noted that the VOCs released into the atmosphere aggravate asthma symptoms and the risk of respiratory illness, especially for children and older adults. The EPA and DOJ announcement provided no specific data regarding the damage these illegal emissions have done to the environment or tribal community.
Compliance measures involve monitoring by MHA Nation Energy Division
The EPA identified flaring activity and infrastructure as a central source of pollution. From 2012 to 2020, almost 20% of all flaring activity in North Dakota occurred on Fort Berthold, according to a 2022 analysis by the Howard Center for Investigative Reporting.
“Flares at just one Marathon facility burned more than 2 billion standard cubic feet of gas in 12 months,” the complaint states. “This amount is greater than the amount of gas flared across the entire State of Colorado for calendar year 2021.”
Flare monitoring is central to the settlement, which requires Marathon to buy two infrared cameras for the MHA Nation Energy Division. The digital technology is used for inspectors to monitor oil and gas production emissions.
By the end of this year, Marathon Oil must implement compliance measures that will result in 2.25 million fewer tons of carbon monoxide emissions. According to the EPA statement, that’s equivalent to removing almost half a million cars off the road for a year.
It’s important “anytime you can get [the oil and
— James Brugh, Three Affiliated Tribes citizen who lives near Marathon well sites
gas industry] to be accountable, especially for the
health of communities, especially minority communities
[and] places where we’re being underrepresented.”
The agency said requiring Marathon Oil to follow specific storage tank designs and obtain permits that allow federal agencies to enforce limits will ensure VOC emissions are less than 100 tons per year.
The complaint noted that Marathon avoided applying for certain permits by providing the EPA with information that contained multiple “inaccurate and unsupported assumptions.”
In one document Marathon stated that “the treater gas flare would achieve a 99% destruction efficiency.” The complaint noted that was not possible in “real world conditions,” and the level of destruction efficiency is not a requirement of federal regulations in the first place.
The agency estimates these compliance measures will cost Marathon Oil $177 million. The company currently operates 169 well pads in Fort Berthold and North Dakota.
Brugh would like to see emissions enforcement beyond a civil penalty. He said the fine, which will go to the U.S. Treasury, is financially a “drop in the bucket” for a company like Marathon Oil.
“Going forward, how much leverage does that have with other [oil and gas] companies? Are they just going to keep doing it?” he asked.
The tribal community is disproportionately affected by “negative effects
— Todd Hall, Three Affiliated Tribes citizen, rancher and farmer
associated with the oil and gas industry regarding and
including unmitigated or unregulated pollution.”
In June ConocoPhillips announced plans to acquire Marathon Oil by the end of 2024, creating the largest independent oil and gas producer in the United States. Marathon Oil separated from the downstream segment Marathon Petroleum in 2011.
Brugh noted that it’s “exhausting” for community members to solely hold corporations such as Marathon Oil accountable for environmental pollution, especially those families dealing with the health effects of living near oil and gas operations.
Hall said the financial rewards of oil and gas production are acquired “at the expense of the people who live off the land.” The tribal community, he continued, is disproportionately affected by “negative effects associated with the oil and gas industry regarding and including unmitigated or unregulated pollution.”
Violations stretch back to 2015 inspections
The violations came to light via Marathon Oil’s self-reporting in four annual reports and in separate inspections conducted by the EPA and MHA Nation’s Energy Division. The inspectors captured emissions via infrared camera in 2015, 2019 and 2020.
Marathon Oil facilities have violated four Clean Air Act programs: New Source Performance Standards, National Ambient Air Quality Standards, Prevention of Significant Deterioration and Title V permitting regulations. The Fort Berthold Federal Implementation Plan for Oil and Natural Gas Well Production Facilities regulates emissions based on the Clean Air Act’s standards and requirements.
“We do not believe the terms of this settlement will have a material adverse effect on either our business or operations or the previously announced Agreement and Plan of Merger with ConocoPhillips,” a company spokesperson for Marathon Oil wrote in a statement to Buffalo’s Fire.
At time of publication, the MHA Nation Tribal Business Council and Bureau of Indian Affairs has not responded to requests to comment.
Hall noted that the BIA is “notably absent” in this and other enforcement actions taken on tribal lands.
Judge Sally N Willett (Ret.)
Unedited
Corporatist code for killing environmental oversight is destroying the “administrative state. The one that keeps corporations from poisoning us.
The radical libertarian supermajority of justices were vetted by the Federalist Society, headed by Leonard Leo, Opus Dei (a secret Catholic society that reports directly to the Pope). Many justices on the court are Opus Dei their identity is kept secret. Hence, Dobbs.
The Dobbs edict (the word “decision” is inappropriate bc the outcome was a foregone conclusion). Dobbs annihilated the human autonomy of half the American population.
My first thought was “Just think what corporate predators like the Kochs would be able to do to Indians given Indians’ percentage of the population if they were unconcerned about the reaction of half the population.
Sure enough, along came Oklahoma v. Castro-Huerta (2022) written by Brett Kavanaugh. Kavanaugh is what one former ASIA called “an amateur who dabbles in Indian affairs.”
The scandal-ridden justice (who wrote most of the Ken Starr report), for the first time in history, fabricated a place for the state at the criminal law table. Indian criminal law has always been a federally-preempted subject matter unless Congress creates a statute to invite states into the mix. E.g. Public Law 280 (1953). In 1968, Public Law 280 was amended to require tribal consent.
To secure consent, the Secretary must call a special election at which a majority of the voters (of each affected tribe) must consent to state jurisdiction before a tribe can act. The Castro-Huerta case sidestepped the process for creating state jurisdiction. Why? Think. Oklahoma has two nicknames: Kochistan South or Kochistan’s Annex. The oil industrial complex owns the former Indian Territory.
The high court is running amok. The radical libertarian majority was handpicked to carry water for corporatists (Mussolini-style corporate fascists). There is parity between corporate and religious fascism.
Dobbs was facilitated by Opus Dei, a religious fascist outfit that vets SCOTUS nominees for the GOP. The radical right’s agenda is “domination.” See discussion of Dominionism in A.F. Alexander’s, Religious Right: The Greatest Threat to Democracy.
Corporate fascists and religious fascists are bookends. This isn’t the evil twin’s first rodeo. After the lords of Wall Street’s speculation devastated the global economy in 1929 triggering the Great Depression, the nabobs of Wall Street co-opted religious leaders to carry water for them and also to be their stormtroopers.
During this period, a cadre of plutocrats attempted to do what Trump tried on Jan. 6. Create a coup d’etat. Then as now, the plot was a fascist scheme engineered by wealthy businessmen who viewed FDR as a traitor to his class. “History is not linear, it is circular.”
The SCOTUS has paved the way for corporate fascists to secure outcome-oriented court decisions. It just wiped out the “Chevron doctrine” in Loper Bright Enterprises v. Raimondo (2024). The doctrine like Roe v. Wade was long-standing.
The Chevron doctrine instructed that courts were to give judicial deference to agency interpretations of laws they are charged with administering if the interpretation is reasonable.
The radical libertarians on the court seem to be unfamiliar with Congress having given federal agencies the authority they wiped out in Loper Bright. It did so in the Administrative Procedure Act of 1946.
The lion’s share of adjudication in the U.S. is administrative adjudication by ALJs. The volume of agency adjudication dwarfs that of Article III federal courts. Federal courts do not administer programs. But they will now it seems.
In Loper Bright, the court just threw a ton of cats into a pack of dogs without being aware of it. What they did is an example of the “water balloon theory.” If you step on the balloon here, the water goes somewhere else. If the goal was to blow out the federal judicial system’s ability to function, they are well underway.
Loper Bright is also the first step toward gutting trust responsibility. DOI is the Grand Central Station of agency expertise in Indian Affairs. Indian law is one of the oldest subjects in our federal legal system. In the first Congress, four of the thirteen acts passed involved Indians.
DOI is also the home of most of Indians’ biggest federal agency enemies. Top officials in such agencies, like Jim Cason, circulate through a revolving door between lucrative energy-industry jobs and government disservice.
Samuel Alito is openly hostile to “trust responsibility” which he and other far-right interests view in the same vein “affirmative action” which they detest.
Just as the five men in dresses and with one Handmaids Tale female auxilliary member refuse to accept the human autonomy of females, the radical right (corporatists and Dominionists) refuses to accept that trust responsibility is a constitutionally-, statutorily-, regulatory-, executive order-grounded “legal relationship.”
Alito like Kavanaugh, Thomas and Indianophobic Wm. Rehnquist (former Ch. J.) has semantically dismantled what has been bedrock Indian law, rules of statutory construction and stare decisis (following precedent).
Following precedent is for public benefit. It permits citizens to be aware of what legal standards are in endeavors in which they are involved. Wild swings in law create a “Wild West”anything-goes atmosphere.
The court’s radlibs do so with purposeful ignorance. They refuse and/or ignore information that does not correspond with their extreme political and religious ideologies.
Thomas does so snarkily and gleefully. The man who got the lowest rating ever assigned to a SCOTUS nominee by the ABA (national lawyers’ organization) at the time of his nomination, recently crowed [no pun intended], “Following precedent is what you do when you don’t want to think.”
It was an astonishing remark from a man who sat mute for over a decade during oral arguments while serving as the handsomely-rewarded handmaiden of the billionaires and corporatists. It appears that he is embarrassed by his Gullah-Geechee origins in Georgia.
Thomas joined the GOP because “the line was shorter” according to a documentary about the justice and his infamous spouse, the Krakan lady. He has no problem pandering to monied interests. He appeared on the face of brochures announcing the Kochs’ lavish see-and-be-seen extravaganzas that are nothing more than luxurious propaganda fests.
Judicial ethics if we gauge integrity by Roberts, Thomas, Alito, Kavanaugh, Gorsuch (except in McGirt) and Coney Barrett is a lost cause. The court doesn’t interpret law which is its only warrant, it fabricates it by improperly legislating from the bench in blatant violation of the separation of powers doctrine.
Keep in mind that the court cannot enforce its own decisions. Indians know that from the rumored comment of Andrew Jackson in Cherokee Nation v. Georgia (1831). Jackson allegedly said, “John Marshall made his decision, now let him enforce it one year after The Removal Act of 1830 was passed by Congress with a slim majority of five votes.
As former Principal Chief of the Cherokee Nation of Oklahoma, Chad Corntassel Smith, once stated, “The Indian wars are not over.” They never will be as long as Indians still have what someone else wants. And Indians do still have assets others covet.
The irony is that Cherokees in name only, Ross Swimmer and Markwayne Mullen, on December 5, 2016 proposed to expropriate $1.6 trillion worth of oil-rich Indian lands and sluice them on over to the eagerly-awaiting hands of the oil industrial complex. The next election determines how bad the danger of kleptocracy will become for Indian Country.
When Dobbs was decided, I felt a frisson of dread. For that reason, I cobbled together a SCOTUS class for the Beckwiths’ ICC Enterprises. These are dangerous times for Indian Country.
Indians are more directly affected by the high court’s decisions than any other segment of the U.S. population according to the revered Felix S. Cohen, who gave us the Handbook of Federal Indian Law, Indian law’s Bible, in 1942. Indians need to know and understand more than ever in these perilous times. To All My Relations.