07/09/2009 05:12 am ET | Updated May 25, 2011

Fracking Is: 1) A Process; 2) An Expletive. Choose One

Cooperstown, New York -- Whether gas drilling creates rivers of gold or industrial waste is a matter of opinion. What it definitely creates is legislation.

Last week, two members of Congress, Diana DeGette (D.-Colo.) and Maurice Hinchey (D.-NY), said they were re-introducing a 2008 bill to rescind features of a Bush/Cheney bill, the Energy Policy Act of 2005, that exempted energy drillers from important features of the federal Safe Drinking Water Act. The earlier bill died last year in a Republican-controlled committee, but this year it's expected to be reported out of Rep. Henry Waxman's (D-Ca.) Energy and Commerce Committee.

Another bill, introduced to the New York Assembly on June 5th by 12 Assembly members, will substantially regulate all gas drilling in the state, including the controversial practice of horizontal drilling and shale fracturing, or "fracking", which uses chemicals some critics say could contaminate ground water with carcinogens and endocrine disruptors. The exact contents of fracking liquids is a well-defended industry secret, but among the deadly chemicals known to be used include benzene, toluene, and diesel fuel.

No such laws, or others yet to come, would have appeared without the grassroots activists around the country who pushed an environmental agenda during the Bush/Cheney years. "They're the foot soldiers of the movement," says Amy Mall, senior policy advisor of the Natural Resources Defense Council (NRDC). "We rely on them."

These activists can be remarkably persistent -- and successful. Here, for instance, at the headwaters of the Susquehanna River, a loose coalition of citizen activists called Sustainable Otsego managed, after a long campaign, to prompt the otherwise politically conservative Board of Supervisors to adopt a resolution that will, among other things, make drillers disclose the contents of fracking liquids, and pay for any damage they cause to the local roads and pristine farmlands.

In fracking, otherwise known as hydro-fracturing, drillers sink several horizontal wells from a single wellhead; then, under pressure, they pump in millions of gallons of water laced with chemicals and sand. The pressure cracks the shale deposits and releases much more gas than would a conventional well. Most of the fluid is then removed from the well lines; but some remains. The rest is either shipped away, or dumped into a lined, open pit to evaporate; the remaining sludge is later trucked to a disposal site.

The ruckus about fracking is about whether the chemicals left underground, or in the sludge ponds, will leach into local aquifers and poison private wells and municipal water supplies.

The former danger is a matter of conjecture; while there are many recent reports of people's health being damaged by suspected exposure to fracking liquids, either directly or in drinking water -- some quite compelling -- no such events have been officially confirmed since fracking was introduced to the United States in 1948. Also, water wells are typically no more than 200 feet deep, while gas is typically found thousands of feet below the surface, in wells drillers insist are well protected from leakage.

But environmentalists point out that the depth of the wells means that left-over fracking liquids would migrate from such depths over long periods -- at least 30 years -- so that any potential contamination wouldn't emerge for years. These groups likewise say that the industry wants to keep the contents of fracking liquids a secret because there would be a direct line of responsibility -- and legal liability -- between fracking and contamination, if any fracking chemical ever did appear in local drinking water.

They also point out that the danger isn't limited to underground water supplies. Last week, the Pittsburgh Post-Gazette reported that a leaking pipe at a local Marcellus drilling site sent stored fracking liquid into a small stream that feeds a lake in a popular park; the contamination killed fish and other water critters for three-quarters of a mile downstream. The Post-Gazette reports that Pennsylvania's Department of Environmental Conservation (DEC) has taken water samples above and below the leak, and is mulling appropriate action.

But at least the Pennsylvania DEC discovered the spill. In New York, there are reportedly only 18 drilling-related DEC field investigators on staff, while the gas industry already has 13,000 wells in operation, and expects to sink another 15,000 or so once the Marcellus play begins in earnest. The DEC likes to insist that drillers are liable for the damage they cause; but it all depends on that handful of inspectors. And after all, speeding is against the law too, though people have been known to occasionally exceed the speed limit.

The spur to the recent spate of laws is the ongoing development of the Marcellus formation, a rich deposit of gas-bearing shale stretching from the southern border of West Virginia to New York's Route 20, which parallels the Mohawk Valley. The Marcellus deposits are estimated to contain anywhere from 1.9 trillion cubic feet of gas -- according to the U.S. Geological Survey -- to 50 trillion cubic feet, worth some $1 Trillion, according to a study by Professors Terry Englander of Pennsylvania State University, and Gary Lash of the State University of New York at Fredonia.

Numbers like that, combined with the fact that developing our natural gas resources is national strategic policy, mean that anybody who stands in front of that freight train to stop it will wind up a wet spot. Not even the NRDC opposes responsible development of the Marcellus, or similar deposits in Texas, Colorado, Wyoming and elsewhere; the key word being "responsible."

All in all, it seems unlikely that the Bush/Cheney approach to energy policy, openly displayed in the 2005 exemptions for drillers to the Safe Drinking Water Act, will survive much longer; the obvious trend is to regulate, or re-regulate, with an eye towards protecting the environment and, by extension, the health of local citizens.

The premise, of course, is that responsible adults clean up after themselves. Predictably, the energy industry is lumbering on with the usual claims that the oppressive costs of such onerous regulation will stop gas drilling in its tracks. But the all-in cost per well of compliance with these laws is estimated to be about $100,000, which doesn't seem much against the millions of dollars per month thrown off by a successful well. The worst that can be said about those costs is that it would force drillers to concentrate on the most promising wells; looked at this way, these laws are doing drillers a favor.

The other argument, heard in a June 4th hearing of Congress' Natural Resources Subcommittee on Energy and Mineral Resources, is more subtle -- that regulating gas drilling should be left to the states. But opponents will doubtless counter with Congress' powers to regulate interstate commerce. Even energy industry lobbyists concede privately that in this game they've got a weak hand, a dwindling pile of chips, and few powerful allies who can step in to save their bacon.