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Hydraulic Fracturing: What’s the Controversy?

In the latest report by the UN’s Intergovernmental Panel on Climate Change, climate researchers warn that drastic reductions to current greenhouse gas emissions are needed to avert devastating and irreversible climate impacts. One of the short-term strategies the IPCC considers in its report is the increased use of shale gas—an energy source often classified as “clean” because it emits less carbon than coal. But IPCC’s endorsement is cautious and conditional, partly because shale gas is extracted through a controversial method called hydraulic fracturing, or “fracking.”

Fracking is a process to recover underground resources, including gas and oil. The process begins by drilling production wells vertically or horizontally deep within the earth. A highly-pressurized mixture of water, sand, and chemicals is then injected through the well into geological formations, such as shale rock. This injection creates fractures within the geological formation, or enlarges existing ones, thus releasing resources that can be recovered through the main production well.

Proponents of fracking point to the environmental and economic benefits of using hydraulic fracturing to release shale gas. Not only is natural gas a cheaper energy source than coal or oil, but natural gas extraction creates new jobs in areas that are often still reeling from the Great Recession. Opponents of fracking point out that it has been linked to problems including groundwater contamination, radioactive pollutants, and even earthquakes. In a landmark lawsuit decided just this week, a Texas jury awarded almost $3 million to a family alleging health problems and property devaluation due to a nearby fracking operation. Furthermore, methane leaks from the fracking process may entirely offset the benefit of lower carbon emissions, as methane is 30 times more potent than carbon in trapping atmospheric heat.

Despite the controversy surrounding fracking, however, the Obama Administration is pro-gas—calling natural gas a  “bridge fuel” and promoting the development of the natural gas industry both domestically and abroad. The current US regulatory regime is also highly supportive of the industry. Exemptions and qualifications for oil and natural gas exploration and recovery exist in seven of the major federal environmental statutes, including the Safe Drinking Water Act, the Clean Water Act, the Clean Air Act, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation, and Liability Act (Superfund), the Emergency Planning and Community Right to Know Act, and the National Environmental Policy Act. (See “The Oil and Gas Industry’s Exclusions and Exemptions to Major Environmental Statutes”) Notably, the Energy Policy Act of 2005 contains a provision, dubbed the  “Halliburton Loophole” by opponents, that exempts fracking-related underground chemical injections, with the exception of diesel fuel injections, from regulation under the Safe Drinking Water Act.

Numerous legal challenges to hydraulic fracturing have arisen in recent years. (See “Case Chart”) Major federal- and state-level actions seeking to change existing law include moves to close the so-called Halliburton Loophole and to impose disclosure requirements for fracking fluids. The Fracturing Responsibility and Awareness of Chemicals Act (the “FRAC Act”)  is a congressional bill, originally introduced in 2009 and reintroduced in 2011 and 2013, that would remove the provision exempting fracking from regulation under the Safe Drinking Water Act from the Energy Policy Act of 2005 and also require public disclosure of the chemicals used in fracking injections, which are currently protected as trade secrets. States have also begun enacting legislation requiring the public disclosure of fracking fluids as well as substantive rules governing fracking activity. Local fracking bans have also popped up in state ballot initiatives. Related action is taking place on the local level, with zoning law as a popular method to ban fracking. In New York, for instance, the Court of Appeals is set to hear two cases over the issue of whether state law preempts local zoning law with regards to fracking bans, both of which are appeals from lower court decisions to uphold the fracking bans.

Given the ongoing controversy over hydraulic fracturing, it is uncertain if natural gas will become the “bridge fuel” needed to combat climate change. The industry has been making strides in addressing some of the concerns over the practice, but the debate continues and questions still remain. With the climate crisis nearing a tipping point, the answers need to come soon.

About the Author

Yasong Niu

Yasong Niu is a Staffer for the Columbia Science and Technology Law Review. She is a 2L at Columbia Law School.
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