Fracking: A Look at Federal, State, and Local Regulations

Fracking: A Look at Federal, State, and Local RegulationsBy Tory Levite

5/8/2015Westfield State University

(Hydraulic Fracturing Drill)

Table of ContentsIntroduction3Literature Review4What is Fracking?4Public Health Concerns8Benefits of Fracking11Regulatory Environment12Conclusion13Project Description14Data Findings and Methodology15Analysis of Data16Federal Regulations16State Regulations18Texas20Colorado23Pennsylvania and New York26Local Regulations29Conclusions and Recommendations33References37Appendix40

Introduction

Hydraulic Fracturing is a fairly new, but controversial, unconventional oil extraction process that drills vertically and then horizontally to gain access to natural gas trapped in shale rock. Scientists and other environmentalists do not know much about hydraulic fracturing, or fracking, in relation to the environment and public health. There are many serious implications attributed to the fracking process, such as health problems, earthquakes, and groundwater contamination to name a few. While there seems to be a lot of downfalls, there are also a lot of benefits associated with fracking, some of them being economic boosts, cheaper fuels, less reliance on foreign oils, and new jobs. There is a fine line between the pros and the cons; a great divide is visible between lawmakers, scientists, and the general public about whether fracking is safe or not for the United States.

Why should we care about such an issue? As more natural gas is being discovered in the United States, gas companies are swooping in to extract the gas in unconventional ways that are harming nearby residences, wildlife, water sources, and the local municipality. Many are wondering how fracking has gone so bad for so long, as there seems to be no regulations at the federal, state, and local levels to help alleviate the cons and make sure the pros stand out.

The purpose of this paper is to review the current federal regulations, compare and contrast the state regulations of Texas, Colorado, Pennsylvania, and New York, while also determining what role local governments should play as new regulations and ideas come about to lessen environmental and public health impacts.

Literature Review

What is Fracking?

According to the U.S. Energy Information Administration (EIA), the United States imports approxiamently 6.237 million barrels of petroleum every day (How Much). With the discovery of huge shale gas reserveres located across the continental United States (Figure 1), many have called for the extraction of natural gas through a process called hydraulic fracturing.

Figure 1: Major shale gas plays and basins in the continental United States, this figure does include many other shale deposits that are actively being fracked (US Shale Gas Reserves).

Many experts deem this resource “a desirable environmental alternative” to crude oil (Davis & Fisk). Although it seems natural gas is a safer alternative to crude oil and one of President Obama’s key energy points to a cleaner future (Cockerham), many citizens feel the extraction of natural gas through hydraulic fracturing (or fracking) is not as environmentally friendly as it appears to be. In order to get a breadth of fracking in the United States, one must understand the technology behind it, as well as the impacts it creates, and the economic benefits it brings locally and nationally.

To get these natural gas resources, companies have turned to large areas of shale rock that contain organic materials, which over time produces natural gas or oil (Shale). There is an estimated 500 trillion cubic feet of natural gas in the Marcellus Shale alone, located across several states including Pennsylvania and New York, enough to supply the U.S. for several decades (Wilbur 2), and some even say for the next 100 years (Davis & Fisk). Hydraulic fracturing requires a lot of technology and science, much of which the average person would not be able to understand. In single terms, a hole is drilled several thousand feet vertically in the ground. The drill then veers horizontally over long distances to cover as much ground as possible. Once the hole is made, thousands of gallons of water infused with over five hundred chemicals (known as fracking fluid) are pumped into the ground at high pressures to create cracks in the shale rock. As the pressure decreases, natural gas is released from these cracks and captured on the surface (Heinberg).

(Figure 2: (Huffington Post)) (Figure 2 (N.d. Huffington Post))Figure 2 is a graphic that shows how natural gas is extracted from shale rock using hydraulic fracturing. This seemingly simple process created an increase of 766,000 barrels a day in 2012 across the United States (Heinberg). Hydraulic fracturing is an unconventional means of gas extraction. The difference between conventional and unconventional drilling is that conventional resources are pockets of oil and gas in geologic structures, while unconventional resources are characterized by oil and gas reserved that are trapped in layers of sedimentary rocks, like shale, where natural gas is commonly found (Scherrer). Figure 3 details the difference between conventional and unconventional oil and gas drilling:

Figure 3: Unconventional vs. Conventional Drilling

Many environmentalists are critical of this unconventional process because of the large amounts of water and chemicals needed. Both Heinberg and Minor state that you need four to six hundred truck-loads of water. Jackson states that just for a single well, two to twenty million gallons of water is used in a single fracking operation (334). There is no exact number that experts agree upon on water usage, but they all say that a lot is required to extract the gas. In many places in the United States, water is not readily available, creating competition between the people that live there and hydraulic fracturing wells[footnoteRef:1]. [1: See Appendix 1]

With these millions upon millions of gallons of water used, hundreds of chemicals are infused into the water, making the drill hole ‘slicker’ for natural gas to travel through as it is released from the rock (Heinberg). The exact type of chemicals used is not completely known. Each company uses a different recipe, a closely guarded secret. What concerned citizens and politicians know is that this fracking fluid contains neurotoxins, carcinogens, and endocrine disruptors (Rafferty & Limonik 454). These are known toxins and chemicals that are extremely harmful to humans if exposed. Many health officials are fighting for federal legislation that will require fracking companies to post every chemical used in order to better treat workers and surround citizens that are exposed (Rafferty & Limonik 454). Others have described these chemicals as “caustic, poisonous, or explosive” (Wilbur 63). The purpose of this ‘secret formula’ is to prevent corrosion, reduce friction, and kill bacteria as water is pumped through at over 10,000 pounds per square inch (Wilbur 63). Table 1 below is a sample table that shows some of the known and perceived chemicals that are used in the extraction process, as well as the health implication they could have:

(Table 1: (Environmental Protection Agency))Public Health Concerns

Along with dangerous chemicals and its toxicity to humans when exposed to them, the most general arguments against hydraulic fracturing are the health implications it reportedly causes to those that live close to fracking operations. These concerns include air pollution, water contamination, and light and noise pollution. Many are led to believe that natural gas is a safer and cleaner alternative to coal and other fossil fuels, yet several cases point out that it could be just as, or even more, harmful than other commonly used fossil fuels.

A study conducted by the National Oceanic and Atmospheric Administration (NOAA) and the University of Colorado found that an estimated 4% of extracted natural gas is released into the atmosphere just outside Denver, Colorado (Tollefson). Much of this released gas is methane, a more effective greenhouse gas than carbon dioxide (CMAJ). Along with the estimated 4% released, companies pump out some of the fracking fluids put into the ground and place them in dissolving areas where more chemicals are put into the air (Tollefson). With all these extra chemicals and natural gas in the air, there have been reported issues with residents living near fracking operations that include coughing, worsening asthma, and shortness of breath (CMAJ). Another study conducted in Colorado concluded that there 61 airborne chemicals around fracking operations, many of which were carcinogens most likely from fracking fluids (CMAJ). Not only is air pollution prevalent from natural gas releases and fracking fluids, but from building wells and the transport of water to and from wells. The construction of a well can take months, generating CO2 emissions “from well-site preparation to construction of pipeline networks, compressor stations, and processing facilities. Infrastructure preparation, including building access roads, clearing a 3- to 5-acre well pad, and drilling…” (Jackson et al. 346).

With the creation of wastewater, a concern by many people is the safety of ground water and the proper disposal of fracking fluids. Drill holes are required to have a casing of cement around them to avoid spills of fracking fluid into area groundwater, but cracks in the casing and surface spills are unavoidable. The Environmental Protection Agency (EPA) conducted water sampling near fracking operations in Wyoming and found evidence of benzene, methane, and other chemicals (CMAJ, Jackson et al. 342). Similar studies were conducted in the Marcellus Shale in Pennsylvania that found high methane concentrations and other chemicals (Jackson et al. 341). Most of the time, homes around fracking operations get their water from wells, and because of these higher methane concentrations the water becomes undrinkable (CMAJ). It has even been shown that residents on the Marcellus Shale are able to light their tap water on fire because of methane (Gasland). One resident in 2008 was killed in an explosion when they lit a candle in their home, due to natural gas migrating into their septic system from a nearby well (Wilbur 91).

Much of the groundwater contamination stems from the disposal of wastewater, and more than two million gallons are generated daily in the United States. This wastewater is labeled by the EPA as ‘special wastes,’ exempt from federal waste regulations (Jackson et al. 342). Wastewater is deposited in a number of ways, most commonly by deep underground injections or sent to treatment plants and even recycled and reused (Jackson et al. 342-343).

When it comes to issues with fracking, most people think about the impacts it has on air and water quality, rarely about noise and light pollution that these operations create. If a resident leases their land to a drilling company, more often than not a well will be placed fairly close to a home, sometimes as close as 500 feet (Minor 80). The noise created by drilling usually takes place 24 hours a day, being as loud as a helicopter (Minor 80-81). The hundreds of trucks that come in and out of the well carrying water create a lot of excess noise and pollution as well (Heinberg). Some wells do controlled burning of excess natural gas, called flaring, which creates light pollution that at night can be seen for many miles (Minor 81).

To build a hydraulic fracturing well pad takes millions of dollars and several man- hours in a couple of months. Many wells are located in areas that have no public roads or existing infrastructure, so companies have to go in and build access roads, buildings, and a network of pipelines to get all the necessary equipment in and to get natural gas out (Heinberg). The area where the drilling takes place can range from 3 to 5 acres (Jackson et al. 346) or the size of a football field (Heinberg). The drill itself can be as high as 120 feet that takes “about 60 tractor-trailer loads of equipment” (Heinberg). All together, building a well has a lot of surface impacts, as well as impacts below the surface.

A hotly debated issue is whether or not hydraulic fracturing causes earthquakes. There is a lot of speculation and a lack of data connecting fracking to earthquakes. The data that is available finds a correlation of increased earthquakes near fracking operations (Ellsworth). Most earthquakes that occur near fracking are under 3 on the Richter scale. There have been reports of larger earthquakes, but it has not yet been proven that fracking was the cause. One of the issues with data in this area is that scientists are unable to determine the difference between naturally occurring earthquakes or man-made earthquakes, making it difficult to determine if fracking is the cause. Usually, earthquakes happen along plate boundaries as they move into each other, away, or past each other, releasing huge amounts of stress to shake the earth (Marshak). Ellsworth explains that when hydraulic fracturing takes place, it weakens faults and causes them to slip, releasing the tension they were holding, which results in a small earthquake. Jackson et al. stated that earthquakes triggered by wastewater injection are rare, but when they do occur they are much higher on the Richter scale (345).

Benefits of Fracking

Fracking stirs up a lot of bad memories and thoughts for a lot of people. It is more common that we hear the bad impacts of fracking on public health and the environment. Yet along with these cons, there are pros associated with hydraulic fracturing. Natural gas emits half the toxins that burning coal does and it has unprecedented air quality benefits compared to other fossil fuels (Jackson et al. 351). With this new ‘clean’ energy source right here in the United States, many are hopeful that it will end our reliance on foreign oil, as well as helping the environment by decreasing carbon emissions to generate our electricity (Davis & Fisk 2).

Fracking is also a multi-billion dollar business, creating jobs as more wells are built, as well as helping the local, state, and national economy. Reports have stated that in a ten-year period drilling could produce over $15 billion in revenue, creating 160,000 jobs with about $85 million in local and state taxes (Wilbur 144). Although seemingly good, a graduate of Stanford Law School Joel Minor describes fracking as a “boom and bust cycle” (Minor 74). He associates fracking with many benefits, but also many problems. With fracking taking place in the United States, the overall price of natural gas has lowered dramatically, making it cheaper to residential and commercials entities. This has also veered consumers away from coal-based electricity, making it economically and more environmentally sound. Because of the low price of natural gas, it could potentially have a negative impact on the renewable energy industry since it is still relatively expensive (Minor 74).

Minor goes on to state that fracking has negative socioeconomic impacts. Most fracking jobs are not created locally, as companies move from place to place they take the same workers with them since they are already trained (Minor 78). Indirect social impacts are also a large part of the fracking business. Small communities are usually not prepared for the large amount of workers moving to the area, forcing the workers to live in ‘man camps’ where there is inadequate electricity, sewage, and running water for the duration of the fracking operation (Minor 83). Yet the workers bring in added revenue to local businesses, creating the ‘boom,’ and when they leave it economically hurts communities, the ‘bust’ (Minor 74-86).

Regulatory Environment

Who has the ultimate regulatory authority? The federal, state, or local government? This is a question that many have tried to answer (Negro). Understanding the regulatory environment of these three entities is key in determining the future of communities when fracking comes knocking at their front doors. Currently, under the EPA’s regulations, hydraulic fracturing is exempt from the Safe Drinking Water Act (Regulation). Yet the EPA and states do have the authority under the Safe Drinking Water Act to regulate discharge created by fracking. In 2011, Congress tried to introduce legislation that tried to remove the exemption of fracking from the Safe Drinking Water Act for the second time, but failed due to opposition from the industry (Negro).

Where the controversy lies is between state and local regulations. Counties and municipalities are battling the state they lie in. In the famous Supreme Court case Euclid, local governments were given the authority to separate industrial and residential land uses (Minor 63). Yet when Longmont, Colorado decided to ban hydraulic fracturing in their residential zones and required companies to seek a special permit in their industrial and commercial zones, the state of Colorado sued them (Minor 63). In his article, Minor expresses the concern that many have went on to analyze the regulations between the federal government and state governments, not on local governments. If they ever did mention local government regulations they “generally considered only whether local governments can regulate fracking, and not how they should do so” (Minor 65).

Normally, states have been at the forefront of fracking regulations. Local regulations are still hard to come by. For example, in 2011 the Pennsylvania House and Senate passed two pieces of legislation that blocked municipalities from creating any regulations of their own (Negro). As new legislation is starting to take place, there is still a lot of analysis that is needed in order to get a full grasp on the relationship between federal, state, and local regulations on hydraulic fracturing pertaining to the issue of public health and safety.

Conclusion

Hydraulic fracturing is an up and coming unconventional gas extraction process that provides both benefits and negative impacts. With large amounts of shale rock located in the United States, it is seen as a release from foreign oil and safe alternative to coal and other fossil fuels. With an increasing amount of new evidence pertaining to public health issues and its effect on the environment, regulations are starting to take form at every level of government. Who has the regulatory authority? Should it ultimately lie with local governments, as those are the ones being most affected by fracking’s negative impacts, while many argue “local control is important because it accounts for differences in geology and geography” (Negro 3 )? Or should it lie with federal and state governments? In conclusion, there is still a lot of data gathering and analysis of hydraulic fracturing regulation to be done as it becomes more prevalent in the United States.

Project Description

In order to come up with best practices and regulations for fracking to protect public health, I studied the regulations of four states in the continental United States: Texas, Colorado, Pennsylvania, and New York. I chose Texas, Colorado, and Pennsylvania to analyze based on several factors such as differences in geography, population size, and political atmosphere. The state of New York was added to the mix because of the location of the Marcellus Shale, which extends right into New York. The controversy surrounding fracking regulation on the Marcellus Shale led me to include New York as a state example that went through regulatory processes to end up in a complete ban.

To properly analyze these four states and compare and contrast their regulations, I will be studying their regulatory environment, regulatory enforcement, and reported health problems. With this analysis, I hope I am able to find what works best and what does not with each state in order to come up with my own recommendations. Yet, the states are not the only players in the game, the federal government is a major component as they give the ultimate regulatory authority to the states. Fracking is exempt from almost all federal environmental protection laws, so what authority does the federal government actually give to the states?

As the federal government gives authority to the states, the states give regulation authority to local governments such as counties and municipalities. But as fracking becomes more prevalent with regulations following close behind, local governments are cut off from begin able to pass their own regulations. Many lawsuits have ensued with cities, towns, and counties banning fracking with some states even banning fracking bans (Arias). The big question is, should local governments be able to regulate or ban fracking in their community? (Fracking Regulations).

By analyzing the regulations of the federal government, four states, and local government actions on fracking, I will propose a best use and regulation for state governments and determine whether local governments should be allowed to instill their own regulations or bans on hydraulic fracturing.

Data Findings and Methodology

The method that was used for this research project is a case study, involving four states and their regulations on hydraulic fracturing. A case study was used to provide the researcher and reader a view on hydraulic fracturing from all aspects of regulations and best practices. The definition of a case study is “a need to obtain an in-depth appreciation of an issue, event or phenomenon of interest, in its natural real-life context” (Crowe). Case studies are a commonly used methodology for researches. It is a tool that can help the researcher to determine the how, what, and why or a situation or problem (Crowe).

Through a case study, there is a specific approach on how to present each case, and then analyze them. Crowe recommends that in order to properly analyze the data that is given to the researcher, it is best to present each individual case before going further and comparing or contrasting the cases together. This is so the reader will better be able to understand each case, and then to understand the comparison that is made by the researcher. Along with the benefits of a case study, there are many downfalls associated with them. According to Flyvbjerg, case studies “cannot provide reliable information about the broader class, but it may be useful in the preliminary stages of an investigation since it provides hypotheses…” (220). What Flyvbjerg means by this is that case studies do not provide hard scientific evidence, but only information for a researcher to develop a hypothesis to later test with their own findings. Case studies are a form of qualitative analysis, which fails to present quantitative facts that are more set in stone than qualitative ones (Flyvbjerg).

Along with the case study involving Texas, Colorado, Pennsylvania, and New York, a comparison will be made among the regulations of these four states and at the local and state government level. With this comparison, a recommendation of best regulatory practices will be made.

Analysis of DataFederal Regulations

In 2005, what was called the ‘Halliburton Loophole’ was introduced by Vice President Dick Cheney to exempt hydraulic fracturing from the Environmental Protection Agency’s major environmental protection acts (Rinfret 88). To name a few of these acts, hydraulic fracturing is exempt from the Clean Water Act, Safe Drinking Water Act and the National Environmental Policy Act (Fracking Regulations). If diesel fuel is used in the fracking process, then these exemptions are not in place (Negro 2). Recently, The EPA has developed new regulations that limit air pollution from oil and gas operations following a lawsuit that targeted several environmental groups (Rawlins 271). Traditionally, regulations on hydraulic fracturing lie with the states, but as Negro states, “change, however, is afoot” (2).

Recent concerns over the effect of fracking on public health and the environment has led to citizen concern. In 2009, Congress ordered a study to be conducted by the EPA on the relationship between drinking water and hydraulic fracturing (Wilbur 192). This study has yet to be completed. Along with this study, there have been several failed attempts to reinstate legislation that would remove the federal exemptions on hydraulic fracturing. These attempts were conducted in 2011 (Negro) and in 2013 by a congressman from Pennsylvania and another from Colorado, where fracking is prevalent (Fracking Regulations).

With unsuccessful attempts to remediate these loopholes, the Obama Administration announced in March 2015 that regulations will be instilled on public lands, regulated by the Bureau of Land Management. These public lands (along with tribal lands) will be subject to the new rules in June of 2015, which will require fracking operations to provide the public with full disclosure of chemicals, cement casing standards to protect groundwater, provide geologic information on each well, and adhere to higher standards for wastewater storage. Along with this announcement fracking companies filed a lawsuit against the new federal regulations, calling it an “attack on American jobs” (David Jackson).

With this milestone in federal fracking regulations, this still only scratches the surface by regulating federal public land. Negro states that some are not happy with these new proposed federal regulations, as they would rather see the regulatory power lie in the hands of the states (3).

State Regulations

With the lack of current federal regulations, the regulatory authority lies with each individual state. This causes a lack of uniformity, where each state has different regulations and requirements, making it confusing for people to tell what’s what. Many of the regulations on fracking are dependent on the political environment of the state, where currently 33 have deposits of natural gas (Davis 189). Since fracking is an economically beneficial industry in the United States, states could compete with one another to develop the best regulations that makes it the easiest for gas companies to come in and set up fracking wells (Rabe 322).

As states have the ultimate authority to regulate, they can give regulatory powers to local governments. In some cases, this traditional handing down of power is cut off. Oklahoma recently just moved to ban fracking bans in local governments (Arias). While states can go to this extreme, it has been observed that there are two types of states when it comes to hydraulic fracturing. States either pass new emergency regulations, or instill a moratorium on fracking while the state conducts an environmental study (Negro 3). West Virginia is one of those states that passed emergency laws that ranged from casing standards to the disposition of wastewater. These regulations have received praise from the EPA, as they were all geared toward groundwater protection (Negro 3-4). New York, along with others, decided to install moratoriums on fracking while an environmental study was conducted and laws are more carefully constructed (Negro 3).

By reviewing the regulations of Texas, Colorado, Pennsylvania, and New York it will be easy to see the differences that occur. Texas, Colorado, and Pennsylvania were chosen based on their differences in geography, population size, and political environment. New York was added to the comparison because of its close proximity to Pennsylvania and that the state is also located on a major part of the Marcellus Shale. Table 2 below displays the demographics from the 2010 U.S. Census in each state being analyzed, including the political party in control, population size, how many people there are per square mile, the number of fracking wells currently active in the state, and the amount of federal owned land.

State

Political Party

Population Size

People per sq. mile

Fracking wells

Federal owned land

Texas

Republican

25,145,561

96.3

33,753

1.9%

Colorado

Democrat

5,029,196

48.5

18,168

36.6%

Pennsylvania

Democrat

12,702,379

283.9

6,651

2.5%

New York

Democrat

19,378,102

411.2

0 since moratorium

0.8%

Table 2: Demographics for the four states being analyzed in this paper. (State and County Quickfacts, Fracking Wells, Jacobs)

It is important to understand the demographics of each state that is being analyzed as to better understand why some regulations were put in place and some were not. The reason to put the percentage of the state that is owned by the federal government is to see how much land is being impacted by the new federal rules going into effect in June of 2015 (David Jackson).

Most shale plays in the United States are currently being fracked, or are in the process of being fracked. Some states have fracking operations up in the ten thousand’s while some states only have a few thousand wells currently operating. To understand the scale of fracking in the U.S., Figure 4 below is a map that shows current hydraulic fracturing jobs across the continental United States:

Figure 4: Frack well distribution in the United States as of 2013 (Huston)

Figure 4 was created in 2013, so it is two years outdated at this point, but it is expected that more fracking wells were drilled within the same vicinity as existing wells.

Texas

Texas lies on five major shale plays, all actively being fracked[footnoteRef:2]. The largest, being the Barnett Shale, lies underneath the city of Fort Worth (Davis 182). The Barnett Shales covers 5,000 square miles under 23 counties, and is the most active production area in the United States (Rawlins 228). If Texas was its own country, it would be the third largest producer of natural gas in the world. Because of their Republican and Conservative political background, the state of Texas is generally pro-oil and gas drilling (Texas). Data put out by the state indicates that the fracking business contributes to over 200,000 jobs and over $200 billion to the economy (Davis 182). [2: See Appendix 2]

The legislative body that controls fracking is the Texas Railroad Commission (TRRC), where Colorado State University Professor Charles Davis states that it promotes dealings with gas companies rather than express a concern for environmental safety. The TRRC “insist that fracking operations are safe...that no documented evidence exists of groundwater contamination in the 60-year history of frack jobs within Texas” (Davis 183). Under the jurisdiction of the TRRC, hydraulic fracturing companies are still required to seek out a permit in order to drill or create a deeper well, adhere to cement casing requirements, and follow approved methods for wastewater disposal (Davis 183).

The Barnett Shale is host to over 13,000 wells that raises many environmental concerns for surrounding residents (Davis 183). The EPA conducted groundwater testing where they found several contaminants that were linked back to fracking operations, over-ruling the TRRC’s statement that no groundwater contamination has ever occurred, or could occur (Davis 184). With new legislation enacted into Texas state law in 2012, fracking operations are required to disclose chemical information, but are not required to disclose trade secret information unless the court decides that that particular information is not deemed a trade secret (Texas).

The Fort Worth area has enacted regulations in response to the increase of fracking wells that addressed health and safety. This included setback requirements to buildings and uses such as residential areas, schools, and churches. Since noise is a factor, there were also regulations set on noise levels at night and during the day, as well as light requirements on wells (Davis 184). While setback requirements seem like a good idea, in Texas, the regulation states that fracking operations are minimally required to be set back fifty-feet from the property line (Rawlins 287). But since every town and city on the Barnett Shale is different, setback requirements range from 300 to 1,500 feet (Rawlins 297). Other major cities, like Dallas that lies on the Eagle Ford shale, has required a 1,500 foot buffer zone between gas wells and ‘protected uses’ like homes (Texas).

The biggest problem Texan’s are facing when it comes to hydraulic fracturing is air pollution caused by the constant trail of trucks and burning of excess natural gas at the wells (Rawlins 229). Many complaints have arisen in the Fort Worth area, including symptoms like nosebleeds, increased issues with asthma, dizziness, and disorientation (Rawlins 230). The air pollution is so bad on the Barnett Shale, that six of the twenty three counties that have the heaviest drilling have children that are three more times likely to develop asthma then the state average between ages six and nine (Rawlins 233).

It seems that the state of Texas has very little regulations on hydraulic fracturing, leaving most of the regulation making to local governments. This makes it tedious for the companies, as they have to adhere to every different town’s and counties regulations (Davis 184). Even with the lack of state regulations in Texas, it is still very difficult for local governments to enact any sort of regulation. In terms of air pollution, any regulation that would protect from it that is caused by fracking operations has to be justified by another public purpose (Rawlins 227). What this means is that local governments are not allowed to protect their citizens against air pollution when it is caused by frack jobs. With little to no authority to control air pollution, are local governments in Texas allowed to create regulations on other health impact issues?

Another major concern that follows hydraulic fracturing is water use. Recently, a Canadian company called GasFrac experimented with water-less fracking in Texas. This new type of technology uses liquid carbon dioxide instead of water. While this seems like a prospective idea, it is more expensive that what is already being done with traditional fracking and it is less effective than using water. With the lack of science behind fracking and earthquakes, Texas has reported that several earthquakes were found to be within two miles of deep injection wells for wastewater disposal (Texas).

Several towns in Texas have set bans on hydraulic fracturing within their city limits. One of them being Denton, Texas which is ironically referred to as the birthplace of fracking. Almost immediately, Denton faced several lawsuits deeming this home-rule city out of its jurisdiction by banning fracking (Texas).

With the little regulations Texas has placed on hydraulic fracturing, gas companies still have to abide by the rules. Texas conducts over 120,000 inspections on fracking wells per year to make sure they are abiding to the rules (Sumi 23). In a study conducted by Earthworks titled “Breaking All the Rules: The Crisis in Oil & Gas Regulatory Enforcement,” several states were analyzed to see how violations were handled, and whether or not current enforcement was increasing compliance with gas companies. Texas was shown to have a decrease in violations between the years 2006 and 2010, but 2010 still experienced over 70,000 violations in fracking wells, suggesting a “serious problem with compliance” (Sumi 40). The TRRC issues these violations, but does not make them publicly available to view (Sumi 39). The most frequent violations in Texas was the identification of properties, wells and tanks at gas wells (Sumi 41). The study also found that with these violations, it does not increase compliance in Texas (41).

Colorado

Colorado is home to three major shale formations, the Niobrara, the Pierre, and the Hillard-Baxter-Manacos shales[footnoteRef:3]. It is suggested that along with these three shale formations, more is to be found in the state where the amount of gas wells doubled from 2000 to 2010 (Colorado). Instead of fracking shale formations, Colorado extracts their natural gas from coalbed seams (Davis 185). The Niobrara Shale is the largest in Colorado, located in the Denver area that spreads across Northeast Colorado and into Kansas, Nebraska, and Wyoming (Colorado). Much of the state is controlled by the Bureau of Land Management (approximately 36%) that will be subject to the new federal fracking rules that are expected to go into effect in June (Jacobs). The fracking industry contributes to 6% of employment in the state, making it the sixth largest natural gas producer in the country (Davis 185). [3: See Appendix 3]

As in Texas, Colorado has a large agency in control of the fracking industry, called the Colorado Oil & Gas Commission, or COGC. They are responsible for much of the rulemaking that takes place in Colorado when it comes to regulating the fracking industry (Davis 185). Another similarity to Texas is the issue of ‘split-estate.’ This is when the ownership of a property is split between someone owning the surface rights, and another owning the mineral rights, including the natural gas stored in this area. Legally, fracking operations are allowed to access those mineral rights, even when the person owning the surface rights do not want them there (Davis 186).

Most regulations created by COGC were to address environmental concerns. In 2007, Democrats took control of the state legislator and immediately passed two important pieces of regulation. The Oil and Gas Commission Reform Act required appointed members of the COGC to include persons with backgrounds in wildlife, agriculture, and soil conservation from the previously industry controlled members. The other piece of legislation, called the Colorado Wildlife Stewardship Act went on to regulate fracking operations by requiring them to comply with wildlife conservation goals and full disclosure of chemicals to public health officials and professionals when needed (Davis 187). Legislation enacted in 2011 by the COGC increased setback’s “from homes, businesses, and high-occupancy buildings,” as well as requiring fracking operations to monitor groundwater both down and up slope of the well (Rinfret et al. 94).

In Colorado, wastewater is mostly recycled to be used in other frack jobs, but the remaining amount is put into deep injection wells. These deep injection wells have been linked to earthquakes in the general vicinity of them, which promoted the COGC to develop site review rules that requires a geological survey of the area before being fracked to locate any faults before wastewater injection begins. Because of the low population in Colorado, gas companies have been permitted by the EPA to dispose of wastewater in aquifers that are considered too dirty, remote, or deep to be considered affordable drinking water. Recently in 2011, Colorado now requires a full public disclosure of chemicals posted to the website FracFocus.org (a chemical disclosure registry) within two months of drilling, though many believe this site is not very accurate due to differences in state legislation across the country since many other states use the site (Colorado).

Colorado is considered an environmentally friendly state that hosts over 18,000 fracking wells. In order to make sure these fracking wells are adhering to the regulations, site inspections are a must. In the Earthwork’s regulatory enforcement study, Colorado was found to be inconsistent and do not encourage compliance. The COGC does not publicly post violations of wells, making it difficult to analyze exactly how many violations occur in a year (Sumi 33). There is a series of violation notices that are sent to fracking companies, where very few receive penalties. But the most common way that the COGC deals with violations is to send a notice of violation to the owner of the well pad, but it is basically a slap on the wrist (Sumi 49-50). Another problem with regulatory enforcement in Colorado is the lack of well inspectors for fracking wells, which is most likely attributed to a high number of violations (Colorado).

When it comes to local governments, Colorado is home to two different types of counties or municipalities, home-rule and statutory (or Dillon’s rule). Home rule municipalities are able to create legislation from what the Colorado Constitution allows (Minor 91), while Dillon’s rule counties “only posses powers expressly granted by the state” (Minor 93). This means that when a Dillon’s rule county or municipality creates legislation, it has to be approved by the state; this severely limits their regulatory power. Many lawsuits and issues have ensued where courts have had to decide what home-rule and statutory municipalities are allowed to regulate[footnoteRef:4]. [4: See section on local regulations for further analysis and explanation. ]

Pennsylvania and New York

The Marcellus Shale is considered the largest shale rock formation in the world that spreads across many Eastern U.S. states[footnoteRef:5]. Almost the entire state of Pennsylvania is covered by the Marcellus Shale as well as the bottom half of New York, where the shale play covers the entire watershed west of the Hudson River (New York). [5: See Appendix 4]

New York is mentioned in this analysis because they are the first major state to completely ban fracking, and because the Marcellus Shale extends across a large part of the state. Just like other states, New York was facing uncertainty with the environmental impacts fracking has, as well as public health implications. Instead of enacting emergency regulations, New York installed a temporary moratorium in 2010 to conduct an environmental study on fracking’s impact. After this study was completed, Governor Andrew Cuomo stated in December of 2014 that he would ban fracking permanently due to the dangers it poses (New York).

A loophole in the ban was the use of propane fracking, another form of water-less fracking. Yet since the complete ban was initiated, any form of fracking is prohibited. Before the complete ban of hydraulic fracturing, New York sent its wastewater to sewage treatment plants in which those plants are usually unable to completely clean out the toxins used in the process. A form of protest was through a beer company in New York City that used tap water to brew their beer, and used the slogan “Don’t Frack My Beer” to get its customers to support a total ban (New York).

New York is similar to Colorado, where environmental concerns are taken into consideration first. The New York Department of Environmental Conservation, or the DEC, was responsible for overseeing fracking regulations in the state (Rinfret et al. 92). During the moratorium, the DEC created an environmental impact statement (or EIS) that went through an extensive public process that received over 13,000 comments (Rinfret et al. 95). After the EIS was completed, the governor made the decision to make the moratorium permanent in the state (New York).

Just over the border, Pennsylvania was taking a different approach to the increase in fracking wells over the Marcellus Shale. Unlike New York, Pennsylvania never created a moratorium on fracking, but rather went through rule making processes to protect their citizens from potentially harmful impacts. The Pennsylvania Department of Environmental Protection is responsible for the issuing of fracking permits and violations, while also being a key player in the rulemaking process (Pennsylvania).

Before 2012, Pennsylvania was the only major developer of natural gas that did not tax fracking operations. Later in 2012, the state legislator passed a bill that would impose an impact fee tax which is estimated to raise $180 million in the first year alone (Pennsylvania). With this bill, titled The Pennsylvania Unconventional Gas Well Impact Fee Act, is a thoroughly extensive piece of literature that applies strategies to dealing with fracking issues, while also constraining local government actions (Rabe 329). Under the Act, fracking companies are required to disclose chemicals used in an operation to a state run agency unless it is a trade secret. Medical personnel are also allowed to request more specific information if someone is injured in an accident, yet if it is a trade secret, the company is not obligated to disclose that information. In Pennsylvania, the fracking industry contributes about 4% of the work force in the state, or about 5.7 million jobs (Pennsylvania).

Pennsylvania takes a different approach to wastewater removal by sending about 99% of their wastewater to treatment plants located in Ohio, where the rest was disposed of in deep injection wells. Where water is not immediately disposed of, fracking wells will store them in wastewater pits, which the DEP requires that it must be emptied within nine months of a completed frack job (Pennsylvania). Just as in any other state, there are many complaints of groundwater contamination around fracking wells, some so severe that homeowners can light their sinks on fire due to high levels of natural gas in their water (Gasland). This is where it is up to the viewer to believe that residents in Pennsylvania can light their sinks on fire, or it is a staged act to make the documentary more interesting.

Just like Colorado and Texas, New York and Pennsylvania are not perfect when it comes to regulatory authority surrounding fracking regulations. Just like Colorado, New York did not publicly post violations before their ban was enacted (Sumi 35). On the other hand, Pennsylvania has an online registry where the public can search for information about how the state conducts inspections, as well as which violations they give out (Sumi 37). With this resource, there is an upward trend in violations in Pennsylvania on the Marcellus Shale to about 1,100 violations (Sumi 38), not as extensive as the violations found in Texas where violations exceeded 70,000 in 2010 (Sumi 40). Together, both New York and Pennsylvania have yearly inspections on wells. In 2013, Pennsylvania found that ExxonMobil illegally dumped thousands of gallons of wastewater into the soil, in which the company was criminally charged and fined for their discrepancy. Together, both New York and Pennsylvania fined Chesapeake Energy $1.1 million for the contamination of groundwater from wells located in both states. This was the largest fine ever set on a company, while they dealt with a $1.6 million settlement that three families set against the company for groundwater contamination (Pennsylvania).

Local Regulations

Many communities have instituted bans, or changed their zoning to allow fracking in industrial areas exclusively, only to be told by a judge it is not legal for them to do so. Should local governments have the regulatory authority to enact bans to protect their citizens? As you might expect, gas companies are extremely opposed to any type of regulations a county or municipality sets, where more often than not a lawsuit is filed against the county or town. Traditionally, states give power to local governments in which they are only given authority to regulate fracking based on the extent of the state and federal law (Hammersly). Yet since local governments are given authority under their state’s constitution, why is it so confusing to them to enact a regulation and then receive a lawsuit just days after it has passed?

What most local governments have been regulating is land use, which they are entitled to under zoning. For example, in Michigan, the zoning act states that a municipality cannot regulate oil and gas driliing and are not able to regulate permits for frack wells. In this particular state, they have completely taken away the authority for local governments to regulate fracking. Speculatively, where states have taken away the regulatory power from local governments, they can enact police power regulations to control traffic, pipelines, and the transportation of hazardous materials (Hammersly).

Yet all over the country, many local governments have created regulations, moratoriums, and local bans. Depending on the state, these local governments can face lawsuits or have their regulations or bans revoked. Pennsylvania has passed legislation that prevents municipalities from regulating the oil and gas industry over the Marcellus Shale, while Texas has municipalities that issue permits to drill and only allow them in Industrial zoned areas (Negro 4). There seems to be no middle ground in the United States about which local governments can regulate and which cannot, it all depends on the state.

Pennsylvania held host to many lawsuits when local governments decided to enact regulations or bans. The town of Robinson was taken to court against the state of Pennsylvania to decide if municipalities are required to issue special permits for fracking wells in all zones, including residential (Apple 241). Unfortunately, the town of Robinson lost and was required to issue permits in all zones along with the rest of state, leaving them helpless to protect their communities through safe development actions. Criticism stated by Harvard Law School Student Benjamin Apple is that by not allowing local governments to regulate fracking, it leaves oil and gas companies in control by ‘holding all the cards’ (243).

Before the statewide ban went into affect in New York, several municipalities had enacted their own bans or were moving towards a ban in their community. Figure 5 below is a map that shows which municipalities had placed bans prior to the statewide ban:

Figure 5: Town and cities that instilled bans or moratoriums based on their location on shale formations in New York (New York).

These bans did not go without controversy, or lawsuit. Two towns in New York, Dryden and Middlefield, were brought to the highest court in the state on whether or not their local bans were legal under New York statute where their ban was upheld (New York).

Just this past winter, Denton, Texas passed a fracking ban, where within hours of the ban’s passing they received several lawsuits from gas companies and the TRRC. In this case, Denton’s ban is more than likely illegal. Many property owners in Denton have sold their mineral rights to gas companies, so by prohibiting fracking in this community fringes on the Fifth Amendment rights of the gas companies (Texas).

Colorado is not as simple as New York, Texas, and Pennsylvania when it comes to local governments in the regulatory mix. In a large court case, the difference between Home-rule municipalities and Dillon’s rule was decided when the city of Longmont banned fracking in residential areas and requiring fracking operations to obtain a special permit in commercial and industrial zones (Minor 63). As previously stated, home-rule municipalities are entitled to enact any regulation that is not currently preempted by state law (Minor 100), where in Colorado outright bans are not allowed under law (Minor 101). Dillon’s rule towns are more restricted when it comes to regulations by operating ‘to the letter of the state law’ (Apple 229).

The city of Longmont, a home-rule municipality, received word two weeks after they passed their new zoning ordinance that they were being sued by the state of Colorado (Minor 63), and the COGC (Minor 107). Then later in the same year, Longmont residents went on to ban fracking completely (Minor 108). During the case, it appears Longmont has the authority to ban fracking under land use-based rule, set by the famous Supreme Court case Euclid (Minor 110). Longmont is not the only city on Colorado to do something about fracking, where the towns of Broomfield and Fort Collins have placed moratoriums on fracking in their communities. Commerce City takes a different approach to the issue that deals with new fracking permits on a case-by-case basis, dealing with them individually to protect wildlife habitats (Minor 113).

Minor’s opinion is that home-rule municipalities should use their eminent domain powers as a backup plan when fracking bans or regulations are challenged with lawsuits (115). Another suggestion Minor makes is that municipalities should develop a competitive special permit program, where a limited amount are handed out to companies that try to minimize the negative impacts fracking brings (117). To further regulate fracking in a local government, Minor goes on to explain that monthly reports should be made to the municipality on how many workers there are at the well and where they are housing them. Ultimately, Minor’s opinion on achieving a legal fracking ban is traffic issues brought on by shipping supplies and water to a well that ruin infrastructure and create air pollution (120). The Longmont court case began in 2012, and lost in court against the Colorado Gas & Oil Commission, where Longmont currently sits in the Colorado Appeals Court to reverse the decision (Longmont).

Conclusions and Recommendations

Hydraulic fracturing bans in local governments have been upheld in some states, while being beat down in others. States have the ultimate authority, but some have chosen not to enact any regulations. The federal government has very little regulations pertaining to fracking, exempting them from major environmental policies. Looking at the relationship between federal, state, and local regulations has clarified why some regulations are upheld while others are struck down. Furthering this analysis with a case study viewing the regulations of Colorado, Texas, Pennsylvania, and New York has led me to come up with my own personal recommendations on this controversial gas extraction process.

Fracking has expressed both positive and negative impacts to the industry. Positive impacts include economic benefits, less reliance on foreign oil, and a cleaner energy alternative to coal and oil. Negative impacts include the amount of water needed to frack, use of chemicals, possible link to earthquakes, and public health concerns. With the information that I have learned, I developed my own recommendations to federal, state, and local governments pertaining to regulations to protect public health and the environment. As Negro brilliantly put it, “The oil and gas industry maintains that fracking can be safe and beneficial if done right, while all levels of government fight to figure out what that means” (10).

What members in Congress are currently trying to do is to remove the exemptions in the Safe Drinking Water act and others on fracking (Negro). Otherwise known as the Halliburton Loophole, it explicitly exempts hydraulic fracturing wells from following standard environmental protection laws (Rinfret 88). President Obama’s new rules that are going into effect in June only cover federally owned lands, not other lands where fracking takes place (David Jackson). By amending these exemptions, hydraulic fracturing operations would be forced to take extra measures to prevent groundwater contamination that is become a common problem in communities. Like a rippling effect, with the exemptions removed, states will be forced to amend their regulations to comply with the federal regulations, and so on.

When it comes to state regulations, it becomes a little more complicated. I agree with what traditionally has been done by having the states have ultimate regulatory authority on issues such as fracking. Federal regulations are more of a general overlay on fracking, where states are able to attend to their individual situations and needs. What seems to work best is the set up of the Colorado Oil & Gas Commission, where their nine member board is made up of individuals from the gas industry as well as environmentalists (Davis 187). This way industry leaders are not the ones controlling the regulatory field, such as Pennsylvania (Apple 243). In this situations, both sides of the issue are taken into consideration with a consensus of what is best for the state.

I believe regulatory enforcement is especially important. This is where Colorado slacks, with little inspectors and almost no penalties to breaking rules, fracking operation run amuck and can put many people at risk. When are the rules are broken, especially in a serious way, there should be consequences. Pennslyvania and New York dealt with ExxonMobil and Chesepeake Energy in a good way by placing heavy fines and criminally charging them (Pennsylvania). Both states had a large force of inspectors that subject every well to yearly inspections to make sure they followed the rules and regulations. Another point to add is to publicly post violations, like Pennsylvania, where concerned residents can view the details of each fracking well in the state and see if that well has any recorded violations (Sumi 37).

Most importantly, it is recommended that states disclose chemical information in fracking operations. Many health officials have called for the disclosure of chemicals to no avail (Rafferty & Limonik). The site FracFocus.org could be used by all states where gas companies publicly post the chemicals that they use. Not to ruin the integrity of the companies, they will not be required to post trade secret information, unless in the case of frack accident, this information should be privately disclosed to health professionals. In relation to chemical disclosure, each individual fracking well should monitor groundwater and aquifers both down and upstream of the drill.

The unanswered question is whether local governments should have the power to enact regulations or bans. This begins with the state, I believe that states should say right off the bat what powers local governments have over hydraulic fracturing. For example, Michigan clearly states that municipalities are not allowed to outright ban fracking in their community (Hammersly). By clearly stating this, local governments save millions of tax payer’s money by avoiding lawsuits.

To answer the unanswered question, in my opinion, local governments should not be allowed to enact outright bans. This should be left up to the states as they are the ones that have the economic interest in natural gas drilling. But, I believe municipalities should be allowed to limit fracking to certain zones, such as Industrial, to protect the public health of its people as there are known side affects to the air pollution and water contamination near fracking wells. Setting regulations on noise and light pollution is especially important by setting hours and days where production can and cannot occur as least to bother residents, as well as instill set back requirements from occupied buildings.

Below is a list to summarize my recommendations at each level of government:

· Federal

· Remove major environmental law exemptions

· State

· Chemical disclosure (no trade secret information unless a medical emergency)

· Publicly post violations

· Conduct random well inspections throughout the year

· Monitor groundwater around well site

· Provide geologic information of the well site

· Have a board with members with mixed backgrounds

· Cement casing standards

· Proper wastewater removal techniques

· Local

· No outright bans allowed if in the state’s interest to mine natural gas

· Be able to regulate with zoning

· Require special permits to instill more stringent regulations preempted by the state

With these recommendations, I believe that they will protect the interests of residents, environmentalists, and fracking operations. Hydraulic fracturing brings many economic benefits, like jobs and tax revenue. There are ways to protect the environment through safe practices and regulations. In due time, the controversy surrounding hydraulic fracturing will slow down and come to an end as the federal, state, and local governments figure out how to deal with this boom in energy production.

References

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Heinberg, Richard. Snake Oil: How Fracking's False Promise of Plenty Imperils Our Future. New York: Post Carbon Institute, 2013. Chapter 2.

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(Appendix 1)Appendix

(Appendix 2: Created by Tory Levite)

(Appendix 2: Created by Tory Levite)

(Appendix 4: Created by Tory Levite)