Untested Waters: The Rise of Hydraulic Fracturing in Oil and Gas Production and the Need to Revisit Regulation

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Abstract:

As the hunt for important unconventional gas resources in America expands, an increasingly popular method of wringing resources from stubborn underground formations is a process called hydraulic fracturing – also described as hydrofracturing, fracking, or fracing – wherein fluids are pumped at high pressure underground to fracture a formation and release trapped oil or gas.

Operators have fraced wells for more than fifty years, but the practice has recently grown rapidly in areas like the Barnett Shale of North Central Texas and the Marcellus Shale beneath Pennsylvania, New York, and other Appalachian states.

This Article describes the process of hydraulic fracturing, existing studies of the environmental effects of hydraulic fracturing, and the laws and regulations that apply to the practice. It argues that there is no direct federal regulation of the fracing process (the pumping of fluids into a wellbore), that court guidance in this area is limited, and that state regulations differ substantially.

Although other general regulations apply to the practice, the Article argues that in light of the dearth of regulation specific to fracturing in some areas, more study of the potential environmental and human health effects of fracing is needed in order to determine whether current regulation is sufficient. The EPA completed a partial study in 2004, but this Article focuses on the deficiencies of that study and calls for a new, national, scientific study of the practice.

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...no one knows the full range of effects because they have not been adequately researched. The EPA’s report is the most comprehensive to date, but was part of a highly-charged political process and was never completed, because the EPA concluded, perhaps prematurely, that further study was unnecessary.

Furthermore, the report investigated fracing in only one type of formation – coalbeds – and assessed the impacts of one stage of fracing, failing to seriously consider concerns such as groundwater depletion and surface disposal of fracing waste.

The highest regulatory priority for fracing should be the instigation of a federal, scientifically rigorous report prepared by the National Academy of Sciences or a similar “neutral” body and a simultaneous regulatory risk-limiting mechanism.

Next, based on the data contained within this report, and given the risks of certain types of fracing, Congress should consider reversing its 2005 exemption of fracing from the Safe Drinking Water Act; it should not wait to commence this process pending the completion of the report, although the report will be essential for future statutory and regulatory decisions.

...In the rush to extract essential resources, a process which itself contributes to human wellbeing, other aspects of human wellbeing – the quality of the environment and public health – must not be cast aside as a mere impediment to progress.

See: Oil & Gas Accountability Project (OGAP)

See also: Pew Campaign for Responsible Mining