Hydraulicfracturing(andU.S.( waterpolicy((( · 7.08.2012 · Hydraulic fracturing and U.S. water...
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Suggested Citation: Burnett, J.W. 2013, ‘Hydraulic fracturing and U.S. water policy’, GWF Discussion Paper 1309, Global Water Forum, Canberra, Australia. Available online at: http://www.globalwaterforum.org/2013/03/05/hydraulic-‐fracturing-‐and-‐u-‐s-‐water-‐policy/
Hydraulic fracturing and U.S. water policy
J. Wesley Burnett West Virginia University, United States
Discussion Paper 1309 March 2013
This article provides an overview of the U.S. policy debate concerning hydraulic fracturing. The author argues that the dominant level of regulatory oversight in the U.S federalist system will determine the scale of negative long-‐term impacts on groundwater quality.
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Keywords: fracking, hydraulic fracturing, shale gas, United States, regulation, drinking water, groundwater
The recent boom in the development of
natural gas from shale is a game changer for
U.S. domestic energy. Large domestic reserves
of shale gas reduce dependency on foreign
producers, as is currently the case for crude oil.
The U.S. Energy Information Administration
(EIA) estimates that the U.S. contains
approximately 500 trillion cubic feet of
unproved technically recoverable resources
from shale gas.1 At current rates, that is
enough gas from shale alone to supply the
entire country for approximately twenty-one
years.2
Figure 1. U.S. shale gas map3
The large increase in shale gas development
has been made possible through the
development of two principle technologies:
Hydraulic fracturing and U.S. water policy
horizontal drilling and high-volume, hydraulic
fracturing (HVHF) fluid. Horizontal drilling or
directional drilling allows producers to access
far more natural gas from relatively thin shale
deposits within the earth.4 HVHF involves
injecting a large volume mixture of water,
sand, and other chemicals deep into the earth.
The high pressure from the fluid causes shale
rock formations to fracture so that natural gas
can be released and extracted. HVHF fluid is
mostly composed of water (generally ninety-
eight to ninety-nine percent) and can contain
some potentially hazardous (and possibly
carcinogenic) chemicals including benzene
and lead.5
Figure 2. Horizontal drilling and hydraulic fracturing diagram6
The contention over hydraulic fracturing
surrounds public fears over contamination of
drinking water sources. This sentiment was
captured in the anti-fracking film by Josh Fox
called Gasland – the film received a 2010
special jury prize for a documentary at the
Sundance Film Festival and was nominated by
the Academy Award for Best Documentary in
2011.7 According to a recent report from the
Natural Resource Defence Council (2012),
HVHF fluid can contaminate drinking water
on the surface or below the ground
surface.8 Potential surface contamination can
occur because of: (1) spills or leaks from
storage tanks, valves, or transportation pipes,
or (2) mismanagement of fracturing waste or
“flowback” fluid which is often stored in
surface pits as displayed in Figure 3 below.
Contamination to below ground surface can
occur due to (1) migration of fluid to
neighbouring oil or gas wells, (2) improper
construction, cementing, and casing of the
well, and (3) migration of fluid to other
natural fracture networks.
Figure 3. Flowback pond near a drilling site9
In addition to potential contamination, HVHF
fluid also requires large volumes of water
taken from fresh water sources, and if the
water is contaminated it cannot be returned to
Hydraulic fracturing and U.S. water policy
water bodies without extensive treatment.
When a well is injected with HVHF fluid some
of it returns to the surface as flowback, but not
all fracturing fluid injected into a geologic
formation are recovered.10 If the flowback
fluid is contaminated then it may need to be
returned underground using a permitted
underground injection well.
The natural gas industry often claims that
there is no evidence of contamination to
freshwater aquifers. For example, Rex
Tillerson, chief executive of ExxonMobil,
offered the following statement at a recent
Congressional hearing on drilling: “There have
been over a million wells hydraulically
fractured in the history of the industry, and
there is not one, not one, reported case of a
freshwater aquifer having ever been
contaminated from hydraulic fracturing. Not
one.”11 Urbina (2011) contends that the lack of
documented cases exist because the industry
often settles suspected cases through lawsuits
with private landowners, in which case the
details of such cases are sealed from public
disclosure. In fact, a U.S. Environmental
Protection Agency (EPA) 1987 Congressional
report documented a case of contaminated
well water from HVHF fluid in West
Virginia.12 Additionally, a Duke University
study found that drinking water methane
concentrations were seventeen times higher in
active drilling locations.13
What is unclear in the U.S. at this point is the
nation’s system of federalism in regulating
HVHF. For example, it is not clear what role,
if any, the EPA will play in regulating this
practice. Much to the ire of environmentalists,
the practice of hydraulic fracturing is largely
exempt from the Safe Drinking Water Act
(SDWA) as superseded by the Environmental
Policy Act of 2005. Legislation, dubbed the
FRAC (fracturing responsibility and
awareness of chemicals) act, was introduced
to both houses of Congress to enable the EPA
to obtain jurisdiction over hydraulic fracturing
under the SDWA; however, to date no major
legislation has passed in either house.14 The
EPA’s ability to regulate HVHF under the
Clean Water Act is limited to the disposal of
flowback into surface waters in the
U.S.15 Therefore, the regulation of HVHF has
largely been relegated to state and local
governments.
Many critics argue that environmental
regulations imposed by the federal
government would be much stricter than
state-level enforcement.16 Critics have argued
that the SDWA provides the EPA with
leverage against states’ inaction in protecting
water sources. In the absence of federal
legislation, some fear a “race to the bottom” in
Hydraulic fracturing and U.S. water policy
which individual states may purposively
impose lax environmental regulations to
attract natural gas development. The
justification for environmental regulations
under federal control “reflect commonly
understood collective action problems,
including negative environmental externalities,
resource pooling, the ‘race to the bottom,’
uniform standards, and the ‘NIMBY’ (not in
my back year) phenomenon.”17 What is clearly
needed in this case is a model of “cooperative
federalism” in which the federal government
offers some guidance in the potential
environmental impacts from shale gas
development, but leaves regulation to local
governments to provide a more
comprehensive, protective, and accountable
regulation of the industry.18
The U.S. will likely be the bellwether for other
countries as Germany, Hungary, Romania,
Poland, China, and Australia are participating
in discussions regarding the application of
hydraulic fracturing to extract their shale gas
reserves.19,20 How will the policy debate in the
U.S. unfold? It is difficult to tell. Perhaps
Benkin (1992) states it best: “… the choice of
regulatory forum often seems to determine the
outcome of the controversy. That may explain
why Americans have traditionally shed so
much metaphorical and genuine blood
deciding what are essentially jurisdictional
disputes between governmental
institutions.”21
References
1. EIA (2012), ‘Annual energy outlook 2012: with projections to 2035’, U.S. Energy Information Administration, available online at: http://www.eia.gov/forecasts/aeo/pdf/0383(2012).pdf 2. EIA (2012), ‘Natural gas consumption by end use’, U.S. Energy Information Administration, accessed online August 7, 2012 at: http://www.eia.gov/dnav/ng/ng_cons_sum_dcu_nus_a.htm 3. EIA (2011), ‘Lower 48 states shale plays’, U.S. Energy Information Administration, available online at:http://www.eia.gov/oil_gas/rpd/shale_gas.pdf 4. EIA (July 12, 2011), ‘Technology drives natural gas production growth from shale gas formations, U.S. Energy Information Administration, available online at: http://www.eia.gov/todayinenergy/detail.cfm?id=2170 5. Committee on Energy and Commerce (April 16, 2011), ‘Committee Democrats release new report detailing hydraulic fracturing products’, available online at:http://democrats.energycommerce.house.gov/index.php?q=news/committee-democrats-release-new-report-detailing-hydraulic-fracturing-products 6. D. Stephens (October 25, 2011), ‘Hydraulic fracking has rewarded oil and gas investors’, available online at: http://technorati.com/business/finance/article/hydraulic-fracking-has-rewarded-oil-and 7. Walsh, B. (February 26, 2011), ‘A documentary on natural gas drilling ignites an Oscar controversy’, Time Magazine: Science and Space, available online at: http://science.time.com/2011/02/26/a-documentary-on-natural-gas-drilling-ignites-an-oscar-controversy 8. NRDC (July 2012), ‘Water facts: Hydraulic fracturing can potentially contaminate drinking water sources’, Natural Resource Defence Council, available online at:http://www.nrdc.org/water/files/fracking-drinking-water-fs.pdf
Hydraulic fracturing and U.S. water policy
9. FracTracker (2012), ‘Pictures: ‘Open pit’ by Mark Schmerling’, available online at https://www.fractracker.org. 10. EPA (June 2010), ‘Hydraulic fracturing research study’, U.S. Environmental Protection Agency, available online at: http://epa.gov/tp/pdf/hydraulic-fracturing-fact-sheet.pdf 11. Urbina, I. (August 3, 2011), ‘A tainted water well, and concern there may be more’, The New York Times, available online at: http://www.nytimes.com/2011/08/04/us/04natgas.html?_r=1. 12. EPA (December 1987), ‘Report to Congress: Management of wastes from the exploration, development, and production of crude oil, natural gas, and geothermal energy’, U.S. Environmental Protection Agency, available online at: http://www.nytimes.com/interactive/us/drilling-down-documents-7.html#document/p1/a27935 13. Osborn, S.G., Vengosh, A., Warner, N.R., and Jackson, R.B. (2011), ‘Methane contamination of drinking water accompanying gas well drilling and hydraulic fracturing’, Proceedings of the National Academy of Sciences, DOI: 10.1073/pnas.1100682108, available online at:http://www.nicholas.duke.edu/cgc/pnas2011.pdf 14. Lustgarten, A. (June 9, 2009), ‘FRAC Act—Congress introduces twin bills to control drilling and protect drinking water’, Propublica, available online at: http://www.propublica.org/article/frac-act-congress-introduces-bills-to-control-drilling-609 15. EPA (2012), ‘Regulation of hydraulic fracturing under the safe drinking water act’, U.S. Environmental Protection Agency, accessed online August 7, 2012 at:http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing/wells_hydroreg.cfm 16. Kay, D. (2012), ‘Energy federalism: who decides?’, Cornell University Department of Development Sociology, Research and Policy Brief Series, available online at:http://devsoc.cals.cornell.edu/cals/devsoc/outreach/cardi/programs/loader.cfm?csModule=security/getfile&PageID=1071714 17. Glicksman, R.L. and Levy, R.E. (2008), ‘A collective action perspective on ceiling preemption by federal environmental regulation: the case of global climate change’, Northwestern University Law Review, 102(2), pp. 579-648. 18. Cricco-Lizza, G. (2012), ‘Hydraulic fracturing and federalism: injecting reality into policy formation’, Seton Hall Law Review, 42(2), pp. 703-740. 19. Rahm, D. (2011), ‘Regulating hydraulic fracturing in shale gas plays: The case of Texas’, Energy Policy, 39, pp. 2974-2981. 20. Crouch, B. (May 12, 2012), ‘Shale gas to put South Australia on front foot as global energy superpower’, Adelaide Now, available online at: http://www.adelaidenow.com.au/business/shale-gas-to-put-south-australia-on-front-foot-as-global-energy-superpower/story-e6frede3-1226353827258 21. Benkin, I.D. (1992), ‘Who makes the rules? Federal and state jurisdiction over electric transmission access’, Energy Law Journal, 13(1), pp. 45-60.
About the author(s)
J. Wesley Burnett, Ph.D., is an Assistant Professor at West Virginia University in the Division of Resource Management. His research focuses on energy, environmental and natural resource economics. Dr. Burnett can be contacted at [email protected].
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Hydraulic fracturing and U.S. water policy
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