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.  

The  Global  Water  Forum  publishes  discussion  papers  to   share   the   insights   and   knowledge   contained  within   our   online   articles.   The   articles   are  contributed   by   experts   in   the   field   and   provide:  original   academic   research;   unique,   informed  insights  and  arguments;  evaluations  of  water  policies  and   projects;   as   well   as   concise   overviews   and  explanations   of   complex   topics.   We   encourage   our  readers   to   engage   in   discussion   with   our  contributing  authors  through  the  GWF  website.  

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 jwburnett@mail.wvu.edu.

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