Hydraulic Fracturing ("Fracking") The Legal and Environment Aspects

Page 3 Introduction / What is Fracking? / Executive order

Page 4 Department of Energy Advisors

Page 7 Law Student Article -- Let States Regulate

Page 8 European Union on Fracking

Page 8 Legal Action in Wyoming / California Controversy

Page 9 Writer's Opinion on Fracking

Legal Issues in Fracturing

Hydraulic Fracturing -- also commonly referred to as "fracking" -- is a technique for extracting natural gas and oil from the crust of the earth. It has become a controversial program because there are environmental impacts associated with fracking. This paper reports on existing laws and policies in states and at the federal level that have to do with fracking.

What is Fracking?

The U.S. Environmental Protection Agency (EPA) explains that hydraulic fracturing creates "fractures in the rock formation that stimulate the flow of natural gas or oil" -- and by creating fractures, it makes it possible to recover volumes of oil and gas that might not otherwise be within reach of the energy companies that do the fracking. The process of fracking can be conducted by drilling vertically for "…hundreds to thousands of feet" beneath the surface of the earth, and once the drill has reached a certain point it can also drill horizontally (EPA, 2012).

Once the drilling has been done, enormous quantities of fluids are pumped "at high pressure down a wellbore and into the target rock formation"; the fluids are normally water, chemical additives and proppant" (proppants used include sand, ceramic pellets or "other small incompressible particles") (EPA). The internal pressure from the rock formation creates a situation during which fluids ("blowback" or "flowback") are forced back to the surface. Along with the chemicals that have been injected, typically the blowback contains "…brines, metals, radionuclides, and hydrocarbons"; and hence, the natural gas or oil that was in the rock formations under the crust of the earth can be captured.

Presidential Executive Order #13605

The President of the United States issued an Executive Order on April 17, 2012, basically explaining that the federal government deems it important to produce as much natural gas as possible and therefore has established an "Interagency Working Group to Support Safe and Responsible Development of Unconventional Domestic Natural Gas Resources" (Federal Resister). In that working group President Barack Obama named thirteen departments within the federal government whose heads will be on the group. Obama explained that "…it is vital that we take full advantage of our natural gas resources…" but at the same time American families and communities must be confident that by extracting natural gas in this process that the "natural and cultural resources, air and water quality, and public health and safety will not be compromised" (Federal Register). This shows that Obama is aware of the controversies surrounding fracking, and that he is trying to provide some oversight vis-a-vis fracking.

Laws and Regulations -- DOE Advisors Weigh In

Recently a panel of advisors to the U.S. Department of Energy issued a report calling for a reduction in emissions of "…pollutants, ozone precursors and methane" from all fracking sites "as quickly as practicable" (The Chemical Engineer - TCE). The chairman of the committee, John Deutch, who is professor of chemistry at MIT (and formerly head of the CIA), wrote that the committee is "…issuing a call for industry action, but we are not leaving it to the industry alone" (TCE, 2011). Part of what the panel is asking for is full disclosure of what fracturing fluids are being used by the industry. "There is no economic or technical reason" that the industry is keeping those materials and fluids a secret from the public, the report stressed.

Law Professor David Spence on Regulatory Lags

David Spence is a University of Texas Professor of Law, Politics & Regulation, and his article in the peer-reviewed University of Pennsylvania Law Review points out that while fracking has "…proven controversial, triggering intense opposition in some parts of the United States," he does not believe any federal regulation of shale gas production is necessary at this time (Spence, 2013, p. 432). In his lengthy scholarly piece, Spence suggests that because low prices for natural gas could "stimulate the replacement of dirtier fossil fuels" (he is referring to oil and coal, both known to produce greenhouse gases which contribute to global climate change), the energy industry should be allowed to exploit those natural gas resources that can only be found through fracking (433).

His point is that natural gas could be the energy source American depends...

In the process of explaining how helpful it would be to have access to additional sources of natural gas through fracking, Spence notes that state and federal regulators "…have scrambled to adapt to the boom in natural gas production and the controversy it has spawned" (431). From Texas to New York, states have made changes in regulatory approaches to fracking, he explains; other states have been extremely cautious, even going so far as to ban fracking until more studies are conducted (434).
What Spence has done with his 78-page article is basically argue that there is no need for federal regulation, but in the process he uses scholarly narrative to argue against federalism in this context and promote the rights of states to provide their own oversight. He explains that in 2011, Americans consumed about 24 trillion cubic feet (Tcf) of natural gas; and as to how much is available through the fracking technique, he asserts that American shale deposits hold "…a minimum of several hundred Tcf of natural gas" (439).

Spence relates that while proponents of hydraulic fracturing assert that despite the fact that "…hundreds of thousands (or millions) of wells in the United States" have used the fracturing process, "fracking has not produced a single confirmed case of groundwater contamination," opponents have a different story. There have been several "alleged cases" where drinking water was contaminated by methane or fracking fluid chemicals, Spence continues (440). His argument in favor of fracking continues on page 440: burning coal to produce electricity "…is associated with tens of thousands of premature deaths each year" but there could be "substantial health benefits" through the fracking process because natural gas does not have the pollutants associated with it (such as mercury) that coal-fired plants have.

That said, it is true that natural gas production "…can release methane into the atmosphere" because of leaks in the capture of gas, in the storage of natural gas and in the transmission equipment, Spence goes on (445).

As to the existing regulatory environment, it has always been primarily "a state matter," Spence explains; and the federal regulatory agencies do not oversee the disclosure of what goes into the fracking fluids nor to federal regulatory agencies do not require "underground-injection-well permits" under the Safe Drinking Water Act (SDWA) (430-31). What about the wastewater that is part of the fracking process? Spence asserts that the fracking wastewater does not fall under the Resource Conservation and Recovery Act (RCRA), however, he adds, the very fact that there are few if any federal regulations vis-a-vis fracking "…has exacerbated fears surrounding those operations (452).

Texas and Pennsylvania have regulatory power over natural gas production (and fracking) and those states have enjoyed "a strong surge in natural gas production" over the last decade because those states' regulations allow fracking. New York, which also has deposits of "Marcellus Shale," has imposed a ban until rules can be established; through his narrative, it is clear that Spence is critical of New York State's moratorium.

Texas had 48,609 natural gas well in the year 2000, but in 2009 it reports having 93,507 natural gas wells from which fracking is being used (or has been used recently); in 2000, Pennsylvania had 30,000 natural gas wells but as of 2009 Pennsylvania has 57,356 wells; and New York State reported having 5,304 wells in 2000 and that expanded to 6,628 natural gas wells in 2009 (Spence, 455). Texas leads the way with most wells and most fracking, but it also has stiffer regulatory policies, Spence continues.

The Texas rules require that well casings must be placed in specific areas within the well, and that the casings must be "pressure tested"; moreover, Texas requires certain "hydraulic ram-type blowout preventers" and Texas demands that energy operators must disclose what kinds of fracking fluids are used "…on a well-by-well basis" (Spence, 456). The fact that Texas has more stringent rules than New York or Pennsylvania in one area (production and fluid disclosure) is interesting because in another area -- disposal requirements -- Texas is less specific or stringent, Spence continues (456).

Spence concludes his piece by saying the states should be playing the biggest role in the regulation of fracking, and federal regulators "…ought to let that process of learning and adaptation play out…intervening only to address risks of national concern" (508).

Law School Student Willie -- Let States Regulate Fracking

Matt Willie takes a position similar to Spence; at the same time he admits that the debate over the…