Hydraulic fracturing, more commonly known as “hydrofracking,” is a controversial mining technique that allows natural gas and oil industry developers to reach otherwise unattainable deposits of shale gas.[i] There are varying techniques currently in use, but the general process involves pumping fluids at high pressures into underground wells to force out either oil or natural gas.[ii] The composition of this ‘fluid’ is generally unknown because disclosure is not required by industry groups, but it is estimated that some fluid mixtures may contain up to 29 different carcinogens.[iii] The Environmental Protection Agency (“EPA”) is in the process of actively researching hydrofracking techniques and potential human health effects with a focus on groundwater contamination.[iv]
Hydrofracking took off in the United States in the early-2000s, when the public health and environmental effects of the process were still largely unknown. Since then, there have been various problems with groundwater contamination, leading to people being exposed to an array of chemical compounds, as well as other anecdotal evidence of unforeseen consequences including earthquakes in Ohio and flammable faucets.[v] This type of ‘unconventional natural gas’ development has grown steadily in the United States. According to the EPA, in 1998, unconventional natural gas techniques comprised 28 percent of total U.S. natural gas production versus 50 percent in 2009.[vi]
Environmentalists and various opposition groups are calling for a halt on hydrofracking until the human health and environmental impacts are completely assessed and discussed seriously before moving forward.[vii] These groups feel that adherence to the precautionary principle is crucial, calling for mitigation techniques and remedies to pollution and other potential problems to be handled at the outset rather than as remedial measures.[viii]
There are a variety of legal issues that come with the advent of hydrofracking – while the practice is not particularly new, the application to directional drilling is new along with the sheer growth of the industry. Environmental effects of hydrofracking include air pollution, groundwater depletion and contamination, surface water pollution, soil erosion and sedimentation, among others.[ix] These diverse issues present a jurisdictional problem: both the environmental hazards and broader effects of the oil and natural gas resources are variously national, statewide, regional, and local.[x] Thus, the pervasive nature of hydrofracking activity presents the unanswered question, which level of authority should regulate – federal, state or local?[xi]
Another area of legal concern is the scope and effectiveness of the Safe Drinking Water Act (“SDWA”) in protecting against contamination due to hydrofracking. The SDWA is set up “to ensure the integrity and safety of public water for human consumption,” focusing mainly on toxic substances.[xii] EPA sought to regulate hydrofracking under the SDWA, and conducted a study of hydrofracking and potential impacts on underground sources of drinking water, concluding that injection of hydrofracking fluids posed a minimal threat, yet said that some chemicals can lead to environmental concerns.[xiii] Since this study, Congress passed the Energy Policy Act of 2005, which essentially left a loophole open so that states only have to obtain permits before drilling when diesel fuel is involved.[xiv]
The only effort so far to remove this loophole is the proposed Fracturing Responsibility and Awareness of Chemicals Act of 2011, which would impose two avenues of federal regulation.[xv] First, it would repeal the hydrofracking exemption mentioned above in the SDWA to include “the underground injection of fluids or propping agents pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities”.[xvi] This would then require EPA to monitor and issue permits, requiring state underground injection control programs that previously did not need a permit to acquire one. This bill died at the end of the 112th Congress, and was reintroduced on June 11th, 2013 in the Senate.[xvii]
The Clean Water Act (“CWA”) was put in place to restore and maintain the physical, chemical and biological integrity of waters of the United States.[xviii] The CWA further prohibits the discharge of “point source” pollution into the “waters of the United States,” without a permit acquired from EPA through the National Pollution Discharge Elimination System (“NPDES”).[xix] Hydrofracking produces tremendous amounts of wastewater which, mentioned above, may contain many different contaminants. The EPA generally defers to the various state permitting authorities, though the issue of permitting again implicates the jurisdictional issues of hydrofracking.[xx]
As hydrofracking is a novel and developing technique to mine oil and natural gas, there are a variety of other legal problems besides those mentioned here. The resolution of these issues depends on many factors, including the economic costs of permitting, environmental remediation efforts, and the interplay of federal, state and local actors. With new legislation pending in the Senate, the future of hydrofracking activities is currently uncertain.
- Christina Bonanni is a General Member on MJEAL. She can be reached at email@example.com
[i] Hydraulic Fracturing (Hydrofracking), Pace Law Library, http://libraryguides.law.pace.edu/content.php?pid=227170&sid=1880060 (last visited April 1, 2014).
[iii] Goldfarb, Ben, Hydrofracking Poses Serious Risks to Human Health, PolicyMic, December 22, 2011, http://www.policymic.com/articles/2985/hydrofracking-poses-serious-risks-to-human-health.
[iv] Plan to Study the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources, U.S. Environmental Protection Agency, EPA/600/R-11/122. http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing/upload/FINAL-STUDY-PLAN-HF_Web_2.pdf (November 2011).
[v] Supra, note ii.
[vi] Supra, note iv.
[vii] Supra, note iii.
[ix] John R. Nolon and Steven E. Gavin, Symposium: The Law and Policy of Hydraulic Fracturing: Addressing the Issues of the Natural Gas Boom, 63 Case W. Res. 995 (2013).
[xii] 42 U.S.C. § § 300f-300j-26.
[xiii] Supra, note iv.
[xvi] Id.; H.R. 1084, 112th Congress. (2011).
[xvii] s.1135: FRAC Act, https://www.govtrack.us/congress/bills/113/s1135 (last visited April 1, 2014).
[xviii] 33 U.S.C. § § 1251-1387 (2006).
[xx] Supra, note viii.