The recent boom in domestic oil and gas development, spurred by new technologies in geologic interpretation, horizontal drilling, completion techniques, and hydraulic fracturing, has exposed a huge gap between our knowledge of getting oil and gas out of the ground and our knowledge of the long-term damage to the environment these activities could be causing. When Congress exempted hydraulic fracturing activity from The Safe Drinking Water Act in 2005, the exemption, lobbied for strongly by the industry, came before the proliferation of new drilling brought on by new technologies. As horizontal drilling and fracturing technology developed, the rig count soared to 2,000 rigs just prior to the recession; after a brief drop in rig count in 2009, the number of rigs operating has recently begun to approach the 2,000 level again. Of these rigs operating, 1,200 are using horizontal technology, and about the same number are drilling for oil. After the implementation of these new drilling techniques, daily US oil production has climbed to almost 5.9 million barrels a day after over a decade of decline. Similar increases in natural gas production have been experienced.
Horizontal drilling is an amazing technology that allows the drillstem to turn 90° from the vertical wellbore, and drill horizontally for thousands of feet through tight formations, such as shale, which has recently become so popular. Because these formations are so "tight", meaning very little pore space, and relatively impermeable, in order to get hydrocarbons to flow, the rock must be fractured to create pathways to the horizontal leg of the well. It's not uncommon using today's technology for there to be 20 or more completions within one well meaning that there are that many frac jobs in that particular well. With 1200 rigs running, and multiple frac jobs performed on each well, millions and millions of barrels of water used in those frac jobs are being destroyed. Some companies have made an effort to recycle the water used for these well stimulation treatments, but the water is eventually destroyed and must be eventually disposed of in deep injection wells.
There have been efforts by environmental groups for over a decade to get the government to more closely regulate or even cease fracturing operations. During the 1990s, an organization called LEAF sued the EPA in an effort to force regulation of hydraulic fracturing to the state of Alabama rather than the EPA, which had declined to regulate the activity. Legal Environmental Assistance Foundation, Inc. v. United States Environmental Protection Agency, 118 F.3d 1467 (11th Cir. 1997) In its opinion in that case, the court held that hydraulic fracturing did constitute underground injection, and that the EPA was required to regulate the practice. This court case and others involving hydraulic fracturing led finally, after heavy industry lobbying, to Congress legislating an exception to the Safe Drinking Water act exempting hydraulic fracturing from the act as long as diesel fuel was not used.
Which brings us up to today. Hydraulic fracturing and other drilling operations, especially as shale drilling has moved into the northeast US, has finally reached a level of public awareness that mainstream media has even begun to cover the issue. The documentary Gasland, though misguided, in my opinion, in some of its analysis, helped to raise that awareness. The recently released draft EPA report on groundwater contamination in Pavillion, Wyoming has brought serious science into the controversy, confirming that oil and gas operations, despite industry protestations, have, indeed, affected groundwater quality. Without hydraulic fracturing technology, though, the US would, once again, be more subject to the politics and instability in the Middle East and other volatile parts of the world. It's estimated that over 90% of wells drilled today in the US require fracturing to be productive, making energy security and hydraulic fracturing inseparable as issues.
The time has come to deal with the issue of hydraulic fracturing. The environment, and public confidence are too important to ignore this issue any longer. Since the EPA has been unable to regulate hydraulic fracturing, there have been attempts at developing legislative solutions to hydraulic fracturing. In 2009, competing bills, both dubbed the Frac Act, were introduced in both the House and Senate. The bill required disclosure of chemicals used in hydraulic fracturing, and put the practice under the jurisdiction of the Safe Drinking Water Act. When the Republicans took over the House in early 2011, the bill, of course, died. Legislation is clearly the best solution to dealing with the safety of hydraulic fracturing, since rulemaking, and subsequent causes of action arising from that rulemaking, can create uncertainty and years of delay in developing enforceable regulation of this practice. As an example of failed rulemaking by the EPA, the agency's attempt at lender liability rulemaking in 1992 under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") was struck down by the DC Circuit Court in 1994. Kelley v. E.P.A., 15 F.3d 1100 (D.C. Cir. 1994) The result was legislation by Congress, dubbed the Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996, which strengthened lender liability protections.
Though the issues of lender liability and hydraulic fracturing are at different ends of the environmental spectrum, legislation to regulate the practice versus rulemaking and the resulting case law are much more efficient and provide certainty, rather than waiting for years of precedent to be established. In the meantime, evidence has mounted that something had to be done to assure that practice of hydraulic fracturing is more transparent and safe. Elements of a comprehensive bill to protect the environment, while allowing for hydraulic fracturing should include these important elements:
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