North Dakota Law

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Inside Climate News: Mandan, Hidatsa and Arikara Nation Chairman Mark Fox ’93 is quoted

How One Native American Tribe is Battling for Control Over Flaring

The Fort Berthold Indian Reservation walks a tightrope for economic development, allowing flaring from oil and gas development even though it’s harmful to the environment and climate.

Flares light up the landscape after sunset on the oil patch in the Fort Berthold Indian Reservation on Oct. 27, 2021. Photo: Isaac Stone Simonelli / The Howard Center for Investigation

Gaslit: Third in a four-part series by the Howard Center for Investigative Journalism at Arizona State’s Walter Cronkite School of Journalism and Mass Communication about the flaring and venting of natural gas by oil and gas companies in more than a dozen states across the country.

NEW TOWN, North Dakota—Powerful flames of burning natural gas shine brightly a few miles in any direction from Mark Fox’s office on the Fort Berthold Indian Reservation. But when he looks out his window, Fox sees a different future.

Next door is the construction site of the Three Affiliated Tribes’ new administration building—a multimillion-dollar project funded by oil and gas revenue.

Oil and gas production on the 988,000-acre reservation has also helped finance new schools, health insurance for tribal members, a law enforcement center and litigation for the economic sovereignty that Fox seeks for his people.

The Fort Berthold Indian Reservation sits atop the Bakken Formation, one of the largest oil reserves in the United States and the second most-productive horizontal drilling and hydraulic fracturing play in the nation, according to the U.S. Energy Information Administration. It’s also home to a massive amount of flaring—the burnoff of natural gas associated with oil production.

Natural gas is mostly methane, which is one of the most potent heat-trapping greenhouse gases. Flaring can release large amounts of methane and carbon dioxide into the atmosphere, harming the Earth and its inhabitants. But only in recent years has it been possible to independently check the accuracy of state reported flaring volumes.

Satellite data analyzed by the Howard Center for Investigative Journalism revealed that nearly 20 percent of all flaring from 2012 to 2020 in North Dakota—which flares more gas than any other state besides Texas—occurred on the Fort Berthold Indian Reservation. Oil and gas companies flared three times as much natural gas on Fort Berthold than on all other Native American lands combined during that time, the data showed.

The analysis also revealed significant discrepancies between flaring volumes recorded by satellites and the amounts that companies reported to state regulators. Without an accurate measure of the volume of natural gas being flared, it’s impossible to know the amount of greenhouse gases being released into the atmosphere, or how much royalty revenue the tribe and its members may be losing.

“You can’t solve a problem if you don’t know what the problem is,” said Jennifer Miskimins, head of the Petroleum Engineering Department at the Colorado School of Mines. “And you don’t know how big or how small the problem is until you get data to work with.”

Oil and gas development on tribal lands is primarily managed by federal agencies, which require companies to pay royalties on any gas flared beyond federally approved exceptions. But companies operating the approximately 2,600 wells on the Fort Berthold Indian Reservation must also adhere to North Dakota’s flare mitigation policy.

A motto of the Mandan, Hidatsa and Arikara Nation—which makes up the Three Affiliated Tribes—is “sovereignty by the barrel.” It has been seeking to clear out the regulatory thicket of federal and state regulations in order to manage the practice of burning this valuable resource on its own land.

Mandan, Hidatsa and Arikara Nation Chairman Mark Fox talks in his office on Oct. 25, 2021. Photo: Isaac Stone Simonelli / The Howard Center for Investigation

The nation pushed for the right to regulate flaring in 2013, when the tribal government passed an ultimately unsuccessful resolution stating that it would regulate flaring because the federal government was failing to do so. Despite the setback, Fox is continuing his fight to wrest control over flaring on tribal lands from the federal government.

“If it’s been flared and it’s being burned—it’s being wasted,” Fox said.

Fox is keenly aware of the tightrope he’s walking between allowing flaring from oil and gas development to risk damaging tribal lands and causing health problems for those living near flares, and the risk of his nation backsliding into poverty if it fails to develop its natural resources.

“There’s a lot of promise in what we’re doing here,” Fox said. “But that relates to us capturing a very valuable resource that today is being wasted.”

Companies Report, Satellites Observe 

Policymakers, mineral rights leaseholders and government regulators all depend on oil and gas companies to accurately self-report the amount of natural gas they flare. A variety of regulatory exemptions allow flaring for safety, maintenance and economic reasons.

Until 2012, however, there was no independent data that could be used to fact-check the companies’ reported flare volumes.

That’s when Christopher Elvidge, then a National Oceanic and Atmospheric Administration scientist, pioneered using satellites equipped with Visible Infrared Imaging Radiometer Suite (VIIRS) instruments to detect flares associated with oil and gas production. Though satellite observation comes with some limitations, it can be an effective, independent tool for measuring flaring volumes—although one that oil and gas regulators have yet to adopt.

The Howard Center analyzed satellite data for North Dakota, including the Fort Berthold Indian Reservation, and then compared it to company-reported data. The data was obtained from monthly production reports that companies, both on state and tribal lands, file with the North Dakota Department of Mineral Resources.

The analysis revealed that oil and gas operators on reservation land reported flaring more than 199 billion cubic feet of natural gas from 2012 to 2020, valued at more than $600 million. However, satellite observations of flaring on the reservation over the same time period showed an additional 42 billion cubic feet of natural gas being burned off.

Such drastic differences between satellite data and company reports remain despite North Dakota implementing a system for measuring flared gas in 2014, as part of a gas capture policy requiring companies to utilize a set amount of the gas.

“Following the adoption of the gas capture policy, the regulations set out how everybody was going to measure, and then calculate, flared volumes,” said Lynn Helms, director of the North Dakota Department of Mineral Resources, noting the state had previously been uncertain as to how companies did their calculations.

When the Bakken fracking boom began around 2008, flaring across the state increased from less than 5 percent to over 35 percent, according to Helms.

He said this was caused by a lack of pipelines from new wells to processing facilities and existing pipelines being too small to handle the volume of gas produced by connected wells.

“The efficiencies in drilling and completion just amazingly outran the infrastructure,” said Helms.

To reduce flaring, the gas capture policy required companies to use natural gas on-site or bring it to market. It set the volume of gas that must be captured by companies on a monthly basis, starting at 74 percent in 2014. The capture goal has remained at 91 percent since November 2020.

Since the gas capture policy went into effect, wells on the reservation have missed gas capture goals over half the time. In fact, gas capture targets are more consistently and frequently missed on the Fort Berthold Indian Reservation than anywhere else in the state, according to an analysis of records from the North Dakota Department of Mineral Resources.

Despite the percent increase in gas captured as a result of the gas capture policy, North Dakota has seen a steady rise in volumes of gas flared since 2016, peaking in 2019 before the pandemic wreaked havoc on the economy, according to a Howard Center data analysis.

Scott Skokos, the executive director of the Dakota Resource Council, a statewide conservation and family farm advocacy organization, argues that percentages are the wrong metric.

“Percentage doesn’t matter, it’s volume that matters,” said Skokos. “That’s a greenhouse gas that you’re venting or flaring—either as carbon or as raw methane. So it’s just bad overall.”

Hacking Through the Regulatory Thicket 

Three federal agencies regulate aspects of the oil and gas industry on the Fort Berthold reservation: the Environmental Protection Agency, the Bureau of Indian Affairs and the Bureau of Land Management. The North Dakota gas capture policy and tribal government rules also impact oil and gas production on the reservation.

Everyone—tribal leaders, environmentalists, even those working in the oil and gas industry—agrees this regulatory tangle explains much of the excessive flaring on the reservation.

The tribe’s 2013 proposed rules would have allowed the tribe to manage the waste of these resources and their impact on the environment. Fox, a U.S. Marine Corps veteran with a law degree from the University of North Dakota, explained that the tribe wants to be the sole regulator on the reservation.

“We’re going to do for our people what the United States government has never done,” Fox said.

But the Bureau of Land Management, which oversees the use of federal natural resources, could not legally defer to tribal authority, said Loren Wickstrom, field manager of the bureau’s North Dakota Field Office.

He acknowledged the more than 40-year-old law governing how flaring is managed on federal territory—including tribal lands—is dated. Attempts to overhaul the federal flaring and venting regulations were caught up in yearslong litigation, leaving the North Dakota office in limbo.

As a result, the Bureau is now working through a backlog of around 2,000 company flaring notifications, some dating to 2014. Bureau engineers must determine if a company’s plan to flare meets one of the permitted exceptions, Wickstrom said. Companies don’t need this determination before they can begin flaring, but they do in order to determine if royalties are owed to landowners and the government.

As of October 2021, a team of six petroleum engineers had processed just over 300 notices, Wickstrom said.

Most of the company flaring notices cite a lack of pipeline capacity as the need to burn off natural gas, according to Wickstrom. The North Dakota Pipeline Authority’s monthly reports from December 2013 to October 2021 show there is consistently more gas flared from wells connected to pipelines than from those that are not, as being attached to a pipeline doesn’t necessarily mean sufficient capacity.

Lack of natural gas infrastructure is a common topic among industry experts, regulators, the tribal government and environmentalists. The economic motivation for building infrastructure to move oil from production sites to market is significantly higher than natural gas because it can be cheaper to build and oil prices are magnitudes higher. From 2016 to 2020, oil was almost 20 times more expensive than gas on average, according to a Howard Center analysis of data from the North Dakota Department of Mineral Resources.

While natural gas infrastructure is an issue throughout the state, it is the crux of increased flaring on the reservation due to a lack of natural gas gathering pipelines.

“Because of the jurisdictional issues, the oil industry has decided to build out the majority of their pipelines outside of the reservation first,” said Skokos. “So there’s more flaring and venting that’s going on on the reservation.”

Both state and federal regulations allow exemptions for flaring when capturing gas is not financially viable.

There’s also economic incentive for companies to start drilling on leases before pipeline infrastructure is in place, which often results in significant amounts of flaring. When leaseholders sign contracts with oil companies, there is a clause that requires companies to bring a well into production within a certain time frame. Failure to do so could result in the company losing access to the mineral rights and being forced to renegotiate its lease, likely at a higher dollar amount.

“You want to produce that oil and you want to get the money, right?” said Donny Nelson, a third-generation rancher whose family homesteaded the rolling hills just west of Fort Berthold.

Many of today’s problems could have been avoided had the energy industry developed the Bakken more slowly, said Nelson, whose parents helped found the Dakota Resource Council of which he is now a member.

“But that’s just not the way,” Nelson said. “It’s a boom, bust—always has been. And, I think, always will be.”

Life Among the Flares 

Driving through western North Dakota, it’s not hard to find flares.

“You go up the hill at night. It’s like a city,” Nelson said, adding that at the height of the fracking boom he counted over 100 flares one night.

“It’s a huge waste,” he added. “I don’t want to tell the next generation what we did.”

Though flaring releases a significant amount of carbon dioxide into the air, burning natural gas at a low efficiency is more damaging to the environment. It’s incomplete combustion during flaring that can lead to the production of black carbon and the release of methane into the atmosphere.

Methane is 80 times more powerful than carbon dioxide at trapping heat in the Earth’s atmosphere in the first 20 years after its release, despite its relatively short atmospheric life span—10 to 12 years compared to centuries for carbon dioxide.

Eric Kort, a professor at the University of Michigan’s Climate and Space Sciences and Engineering Department, studied inefficient flaring in North Dakota in 2014. He found the flares were less efficient than assumed, “which would suggest that, actually, flares are a larger contributor to methane emissions than presently represented.”

Even worse, however, is venting, which releases uncombusted natural gas—mostly methane—directly into the atmosphere. Strong winds or equipment malfunctions can extinguish a flare while continuing to release natural gas, and the problem may go unnoticed for months on the remote, rugged reservation, said Skokos, head of the Dakota Resource Council.

Fox said the tribe has identified “excessive venting” using infrared cameras, which can capture images of uncombusted gas plumes not otherwise visible. It has notified companies directly or informed the EPA, which is responsible for monitoring air quality on federal and tribal lands. The Three Affiliated Tribes has a scientist who is a standing committee member of the EPA’s Science Advisory Board.

But the EPA’s ability to respond is limited. Its regional headquarters in Denver, a roughly 750-mile drive away, must enforce the Clean Air Act in six states and 28 tribal nations, including Fort Berthold. Just eight full-time employees inspect oil and gas well pads.

“We’re greatly concerned about it,” Fox said of the environmental impact from oil and gas development. “We should be, because this is where we intend to live for the next 10,000 years.”

Lisa DeVille, a member of the Three Affiliated Tribes, has been raising the alarm about the negative environmental and health impacts of the oil boom since 2010. She is the co-founder of the Fort Berthold Protectors of Water and Earth Rights, a grassroots environmentalist group that partners with the Dakota Resource Council.

Riding shotgun as her husband, Walter, drives down a dirt road past the reservation community of Mandaree, DeVille narrates her “toxic tour.” It includes what she says are the remnants of a saltwater fracking pipeline leak a few hundred yards from a flare stack overlooking Lake Sakakawea.

DeVille remembers visiting the area as a child with her grandmother to collect juneberries and plums, and hearing stories about oil locked in the rocks. Like many tribal members with mineral rights, her grandmother later allowed drilling on her property.

“If they do decide to get that oil out,” DeVille recalled her grandmother saying, “I don’t think that you’re going to have any more juneberries or plums to pick.”

Walter DeVille feels strongly about those impacted by oil and gas development. “They prey on people of color in their communities,” he said.

A 2021 study on the demographics of flaring in and around the Bakken shale found that Native Americans and Hispanic populations were the most likely to live near flares.

“Flaring is particularly intense in the Fort Berthold Reservation in North Dakota, which accounted for 70 percent of the Native American population exposed to more than 100 flares,” according to the study, led by Lara Cushing, an assistant professor in the Department of Environmental Health Sciences at the University of California, Los Angeles.

Cushing has shown a correlation between health concerns, such as higher odds of preterm births, and living near flares based on a different study she conducted in Texas’ Eagle Ford Shale, another top flaring region in the U.S.

“There’s a lot of people who are potentially exposed. And our findings do suggest there may be some community health impacts that should be investigated,” Cushing told the Howard Center.

The most significant challenge researchers face in determining the health impacts of flaring is a lack of good data on where and when flaring is occurring.

“There’s some pretty significant reserves associated with a lot of these tribal lands,” said Miskimins of the Colorado School of Mines, noting that geological processes that create oil and gas resources happen to overlap with them.

Revenue from oil and gas production on the reservation has provided the Three Affiliated Tribes resources to fight for economic and environmental sovereignty.

“The Tribe is now in a position to vigorously defend its sovereignty—both in government to government consultation and cooperation with the federal and state governments, but also through litigation when necessary,” said Timothy Purdon, a former U.S. attorney in North Dakota who now handles some of the tribes’ litigation. “And 10, 15 years ago, they didn’t always have the resources to do that.”

Meanwhile, flare mitigation both off and on the reservation remains the focus.

A law to incentivize companies to invest in flare mitigation technology took effect July 1, 2021. It provides a tax credit of up to $6,000 per well per month to help companies cover the cost of flare mitigation technologies, such as converting natural gas to liquid fuels.

The nation is pushing forward with its own flare mitigation plans, in hopes of also tackling food sovereignty.

“The Tribe is now in a position to vigorously defend its sovereignty—both in government to government consultation and cooperation with the federal and state governments, but also through litigation when necessary,” said Timothy Purdon, a former U.S. attorney in North Dakota who now handles some of the tribes’ litigation. “And 10, 15 years ago, they didn’t always have the resources to do that.”

Meanwhile, flare mitigation both off and on the reservation remains the focus.

A law to incentivize companies to invest in flare mitigation technology took effect July 1, 2021. It provides a tax credit of up to $6,000 per well per month to help companies cover the cost of flare mitigation technologies, such as converting natural gas to liquid fuels.

The nation is pushing forward with its own flare mitigation plans, in hopes of also tackling food sovereignty.

The tribe broke ground in 2021 on a climate-controlled greenhouse project that will be powered primarily by natural gas that would otherwise be flared, as part of its Green Grow Initiative. Though the project has been delayed by the pandemic and supply chain issues, Fox remains confident in its potential.

The project offers a chance for tribal members to have access to healthy food, Fox said, and provides another revenue stream for the tribe by exporting produce, all while reducing the amount of natural gas being wasted on the reservation.

“We’re gonna grow our own food, generate our own power, export our own goods,” Fox said.

He called flaring “one of the most important” items on his agenda, adding, “You got to account for it, monitor it—and you gotta pay for it.”

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