Brought to you by the Real Law Editorial Team
A gladiator enters the arena, armed with a sword and shield. Opposite, there’s a warrior with a net and trident. A gate opens, and chariots, lions, and an elephant charge in. Who’s on whose side? Is anyone going to win? Welcome to the current state of fracking in the U.S.
Under way in approximately 30 states, hydraulic fracturing, or “fracking,” is a process by which specially formulated fluids are injected into existing wells to extend their oil and natural gas production, particularly in shale rock formations that would otherwise be unreachable. The term also applies to the subsequent disposal of fracking fluids. While some are recycled, most are currently disposed of in deep wells. The use and chemical content of fracking liquids and how they are disposed of will be key points in the role that natural gas will play in the future of energy.
An Unavoidably Messy Fight
Anyone who tells you it’s a simple choice is either uninformed or heavily invested in the outcome. From a distance, it’s about a billion-dollar industry that the country needs versus the environmental impact of the industry’s activities. This is a good place to start.
But when you look closer, it gets really weird really quickly. There is evidence that fracking is reducing pollution. There are new discoveries related to air, groundwater, and soil contamination. There are promises of new jobs that the country desperately needs. State fracking laws can trample municipalities and the rights of landowners. Fracking might cause earthquakes. It reduces consumer prices. Overproduction might be depressing gas prices, too.
It’s impossible for any one group to even begin to triangulate this issue. “Jobs and Earthquakes?” “Pollution Not Contamination?” “Fed vs. State?” Each participant brings such different information and goals that any normal industry would be paralyzed. The reality is that the U.S. depends on energy. Because of the industry’s importance, all the players will have to get used to a lot of uncertainty.
Legislatures and regulatory agencies are grappling with how to implement regulations that protect citizens and the environment while at the same time encouraging economic development. As the volume of shale gas increases (it has doubled in Pennsylvania since last year), so does attention by multiple elected officials and overlapping state and federal agencies. The result: “statutory mayhem.”
A Snapshot of the Battleground
The opponents, stakes, and contested terrain change daily. Regular updates are needed to keep up with the regulations and relevant cases. Each interested party brings completely different tools and approaches to the fight. Let’s look at some good examples at the national, state, and local levels:
The Environmental Protection Agency (EPA) seems like a natural participant, especially since the Safe Drinking Water Act of 1974 (SDWA) empowered it to set standards for public water systems. This would allow it to wield national-level regulation to harmonize government and corporate behavior, were it not for the Energy Policy Act of 2005 (EPAct ’05), which amended the SDWA to largely exclude chemicals injected into wells for the purpose of oil or gas production. As a result, the EPA says that it cannot investigate fracking in terms of pollution or environmental damage. The EPA has since proposed new rules to limit the emissions of fracking operations.
National Relevance
These new emissions rules are being opposed by the American Petroleum Institute (API), the gas industry’s lobbying group. It argues that these new rules require improvement and, as currently formulated, “threaten oil and natural gas development that creates jobs, revenue to the government and energy security.”
The Department of the Interior announced proposed new rules to increase oversight of the chemicals used, but only on operations on public and Indian lands, and only after drilling is completed.
The Obama administration also directly created an inter-agency task force to streamline federal regulation of the natural gas industry.
The National Oceanic and Atmospheric Administration presented research on emissions that led the board of trustees in Erie, Colorado, to support a moratorium on gas drilling.
IHS Cera, an analysis firm, estimates that the gas industry will create 1.5 million new jobs by 2015.
The National Institute for Occupational Safety and Health has stepped into the ring with concerns over dangerous workplace levels of silica exposure related to fracking operations.
The Associated Press reports that carbon emissions are down as a result of fracking.
The Department of Energy has found that although fracking is connected to earthquakes, it is not a significant danger.
Regional Issues
The United States Geological Survey estimates that the Marcellus Shale is a potentially Norway-sized natural gas resource under the Appalachian Basin.
Energy companies Southwestern Energy Co. and Devon Energy Corp. disagree with API, claiming that they don’t find the proposed EPA rules onerous, since they have been complying with local state laws in Colorado and Wyoming.
The Wisconsin Center for Investigative Journalism and the Wisconsin Economic Development Corporation found that the fracking boom has created thousands of jobs in the state.
Researchers at the Arkansas Geological Survey have raised the possibility that fracking operations have caused significant earthquakes in their state. Experts in Ohio have made similar findings.
Municipalities in New York and Pennsylvania have shown that they can overturn state laws that allow fracking in their jurisdictions.
Popular Culture
Wired magazine recently reported on the increasing scrutiny of pro-fracking researchers who have cozy (and lucrative) ties to the gas industry.
Josh Fox, the Oscar-nominated writer and director of the documentary Gasland, is preparing a new anti-fracking film, The Sky Is Pink.
New York City Mayor Michael Bloomberg has turned out to be one of the most nimble combatants, opposing fracking to protect his constituents, but backing it everywhere else.
Even Erin Brockovich has set her sights on fracking.
Many Different Players, a Very Open Future
This kind of asymmetric competition has been examined in both warfare and business, and it’s also a very apt description of the political battle going on now across the U.S. The importance and risks of fracking will mean big changes to the political, legal, and regulatory landscape of the nation.