Posted on August 5, 2010 by Robert Kirsch
The ongoing developments in the Gulf of Mexico, together with last years coal ash and mine safety incidents have contributed to a renewed interest for regulation in Congress. One of the areas under consideration for such further regulation is hydraulic fracturing, a well drilling technique used to develop oil and gas resources.
The technology used in fracturing has been in use for decades in the oil industry. Thousands of wells across the country use the technology. The renewed interest in regulating coincides with the expansion of fracturing into more recently confirmed deposits of natural gas, located in shale deposits thousands of feet beneath the earth’s surface. A hydraulic fracturing well, in those contexts, is first drilled vertically down, and then advanced horizontally into the shale. Then, highly pressurized water, plus very low concentrations of chemicals, added to enhance the effectiveness of the technique and to protect the related equipment, is introduced into the well. The resulting pressure cracks the shale, permitting the well to collect natural gas.
Congress exempted the fracturing process from regulation under the Safe Drinking Water Act (SDWA) in 2005. Since then, fracturing has been regulated by the states where the wells are located. However, the changed regulatory climate, coupled with the fact that shale deposits have been identified in locations like New York and Pennsylvania, which are not traditional “energy states,” has led to questions about whether that exemption should end or be modified. Most recently, efforts have focused on narrowing, not abandoning the exemption. All of this has occurred despite a positive regulatory and enforcement history for the fracturing industry.
There have been two principal avenues for the Congressional proposals related to fracturing. Both would require well developers to identify the chemicals added to the water, and provide them to an oversight body, which would publish the information on the internet. One route would amend the SDWA to allow states to compel disclosure, and would require a federal disclosure mechanism as a default, if a state failed to set one up. The other route, which has been less talked about recently, would accomplish a similar result within the framework of the Emergency Planning and Community Right to Know Act.
Industry is not of one mind on whether and how to advance the disclosure concept. Many important natural gas developers are prepared to work with a tailored federal disclosure requirement, provided the oversight entity is one other than EPA. Other, traditional elements within the industry, oppose any change to the federal exemption. And, both prongs agree that the issue has been well and adequately regulated by states for years, and should remain principally the province of the states.
In the current Washington environment, regulation seems more likely than ever, but it is far from inevitable. Despite aggressive opposition campaigns, an advocacy film and public forums crowded with well-organized fracturing opponents, those clamoring for federal change have yet to substantiate even the most often repeated anecdotes of environmental risk.
In response to a request from Congress, EPA has launched a study to evaluate the possible influences of fracturing activities on ground water sources used for drinking. Similar, but more limited exercises also are taking place at the state level. The best result, of course, would be to maintain the current level of regulatory oversight until these studies are complete, and then to evaluate the need for change based on those scientific results. Unfortunately, that is not necessarily how our environmental laws have progressed in the past. Perhaps it will be how Congress proceeds this time. Hope springs eternal.