America today stands at a historic crossroads. Our actions in the coming decades regarding energy production, use, and policy will play a critical role in the sustainability of our current ecosystems and earth resources. This past weekend, over a thousand people from across the U.S. joined a first-ever “people’s march” in DC to protest the gas industry’s push to export liquefied natural gas from U.S. coastlines. With a key decision nearing on the Cove Point export terminal, just 50 miles south of the White House, protesters are calling on President Obama and the Federal Energy Regulatory Commission to halt approval of all liquid natural gas export projects. Hydraulic fracturing (fracking) for natural gas is a high-risk path that’s benefits do not outweigh its consequences. Natural gas is commonly seen as a “cleaner” alternative to coal; this is a dangerous misconception. Yes, the burning of coal produces more soot and harmful byproducts than natural gas, but the Intergovernmental Panel on Climate Change (IPCC) reports that the global warming potential of methane (the carbon content of natural gas) is 34 times greater than that of carbon dioxide over a 100-year time scale, and 86 times greater over a 20-year time scale. The Environmental Protection Agency (EPA), outdated in many informational aspects of fracking, reports the global warming potential of methane is a mere 21 times greater than that of carbon dioxide over a 100-year time scale. A recent study by Climate Action Tracker claims that to prevent global average temperatures from rising more than 2˚ Celsius (the internationally agreed-upon crisis point) no fossil fuels can be burned anywhere after 2050. If we truly wish to stay below the 2˚ limit, any steps toward further natural gas production are not feasible.
Not only is natural gas energy disastrous from a global warming standpoint, but the environmental impacts of fracking raise serious red flags. Fracking poses a significant threat to the integrity of the groundwater and ecosystem it affects. Functioning correctly, the wells introduce a fracking fluid cocktail (water, sand, and undisclosed chemicals) that draws concern itself. However, a Pennsylvania study reports that “about 40% of the oil and gas wells in parts of the Marcellus shale region will probably be leaking methane into the groundwater or into the atmosphere.” This study also shows up to 2.7-fold higher risk for unconventional wells (built with newer technology relative to conventional wells) drilled since 2009. The environmental impacts of fracking, which will be explored further below, have incited opposition from Native American populations as well as other activist groups. This problem is widespread, with 17 states already seeing fracking; at its current pace the fracking industry is projected to expand to California farmland, the Florida tropics, and the Great Lakes among other valuable sites.
The current federal regulation of fracking is almost nonexistent, prompting concerns about fracking’s environmental and public health risks which can be viewed at five stages of the process. First, water must be acquired. Each fracking job requires 3 to 9 million gallons of water. In areas where groundwater reserves are dwindling and a high concentration of fracking sites are present, the excessive use of a resource that plays a keystone ecological role is unsettling. It would be different if the water were returned to the ground from which it came without alteration, but the chemical additives of fracking fluid make the water damaging to its original ecosystem or displaced to a dump site or treatment facility. Second, the exact mixture of chemicals in fracking fluid is not published or known by anyone outside of the industry unless required by state law. Some states are taking frightening measures to protect the industry’s trade secrets, further securing up the possibility that untested chemicals pollute the ground of drill sites. Third, the deep well injection of fracking fluids may or may not contaminate groundwater tables—often the source of drinking water. Though common sense may indicate that injecting large quantities of chemical-laced fluid into unpredictable and cracked rock formations may seep into groundwater nearby, the EPA has not yet released its final study on the matter. In December 2010, the EPA released a report of a study conducted in Pavillion, WY. The study examined water in test wells near fracking sites and found it to contain BTEX compounds, Isoproponal, Diethylene glycol, and higher levels of dissolved methane—all of which are harmful to public health. Fourth, fracking fluid flow back creates surface wastewater. If not managed appropriately this flow back could contribute to surface runoff containing ecologically damaging chemicals. Fifth, if captured and contained, flow back must then be treated and/or disposed of. If not done responsibly, this can be a dangerous process for both ecosystems and public health.
In 2011, The House Committee on Energy and Commerce gathered information from oil and gas companies on the chemicals used in hydraulic fracturing. The committee discovered a number of potentially harmful chemicals in wide use. The report stated that “oil and gas service companies used hydraulic fracturing products containing 29 chemicals that are (1) known or possible human carcinogens, (2) regulated under the Safe Drinking Water Act for their risks to human health, or (3) listed as hazardous air pollutants under the Clean Air Act.” The report also found that between 2005 and 2009, “fourteen oil and gas companies used more than 2,500 hydrofracking products containing 750 chemicals and other components. They used 780 million gallons of fracking products, not including water, which serves as the solvent.” None of this is regulated due to strong industry lobbying around the exemption of fracking from Safe Drinking Water Act (SDWA) jurisdiction. The Eleventh Circuit Court held that fracking was to be regulated under §1421 of the SDWA in LEAF v. EPA. This victory was short-lived, however, as Congress passed the Energy Policy Act of 2005, which conclusively withdrew fracking from the realm of federal regulation.
Multiple principles in American law point to the regulation of fracking as a reasonable course of action. A particularly important precedent in environmental policy is the “precautionary principle”, as discussed in Reserve Mining Co. v. EPA. In this case the Supreme Court held that uncertain potential harm to public health can justify the forced cease of the source of the harm. The Supreme Court also discussed the “policy space” allowing executive action created by precautionary language justified by risk of harm in the case Ethyl Corp. v. EPA. Both Congress (in the Clean Air Act, for example) and the Supreme Court have clearly upheld the precautionary principle, yet it is blatantly missing in regulation of the chemicals used in fracking. This lack of regulation strays from the notion of “health-based” standards, as seen in the Delaney Clauses and in Union Electric Co. v. EPA. In this case the Supreme Court held that in setting health-based or “technology-forcing” standards, economic or technological feasibility is irrelevant. Health-based standards require “de minimus” risk, and thus eliminate the balancing analysis of marginal cost of pollution abatement against the marginal benefit of pollution abatement. Drinking water regulation is a reasonably certain candidate for health-based regulation.
Without federal regulation, private landowners are in a weak position to fight fracking and hold companies accountable for damages. Even if plaintiffs can show causation, the expense of litigation and living with a continuous tort compels many to settle and sign non-disclosure agreements. Oftentimes leases near drilling sites contain non-disclosure provisions. The Coase theorem that bargaining through private nuisance litigation, seen in the early landmark case Madison v. Ducktown Sulphur, can be more effective than public regulation fails in this case, as it doesn’t take into account transaction (litigation) costs. A person who lacks a basic necessity like clean drinking water likely lacks the resources, willpower, or time to engage in drawn-out negotiations or litigation with the polluter. Instead, they are likely to accept any offer the polluter puts on the table, freeing the polluter of culpability. This recently played out in Dimock, PA, where residents agreed to a $4.1 million settlement for clean water from Cabot Oil and Gas, despite concerns by landowners that this amount was inadequate to compensate their financial, health, and environmental losses. Federally regulated informational parity helping landowners make informed decisions, paired with a “polluter pays principle” shifting the burden of proof unto the polluter would be of paramount aid to landowners affected by fracking.
The ubiquitous risks of fracking are explored in a comprehensive manner by the Concerned Health Professionals of New York’s Compendium of Scientific, Medical, and Media Findings Demonstrating Risks and Harms of Fracking published in June of this year. Further Environmental Protection Agency (EPA) research on the impacts of fracking is will be published to the Federal Register in 2014, and upon its release it is very likely that regulation of the process will need to be reformed on the federal level. By amending the SDWA to reverse the frustratingly shortsighted and misinformed Energy Policy Act of 2005 fracking exemption and specifically include fracking in its regulatory scope, the EPA would be given discretion to set Maximum Contamination Levels for chemicals used in fracking and regulate drilling companies’ activity. An entirely new bill to regulate the fracking industry would also be a valid option.
There have been some steps in the right direction, such as the New York Court of Appeals decision allowing towns to ban fracking, but federal legislative action regulating the natural gas industry will be needed to make sure the trajectory of this energy industry does not have catastrophic impacts on our earth and public health. The Earth Day Network hopes to see a productive congressional response to the EPA’s 2014 fracking study, as well an American populace knowledgeable of fracking’s climate and groundwater impacts.
Author: Ben Criswell, EDN Intern