The popularity of fracking for natural gas has skyrocketed, partly due to the United States’ increased dependency on petroleum, economic difficulties, and advancements in technology. Proponents of fracking cite the benefits it tends to provide for the economy, jobs creation, increased domestic energy supplies, and less dependence on foreign energy (Graham, 2012). The increased popularity of the process is especially noticeable in the North Texas region. As seen in Figure 1, North Texas sits on top of a large source of natural gas known as the Barnett Shale. The Railroad commission reports, The Barnett Shale is a hydrocarbon-producing geological formation that consists of sedimentary rocks and the productive part of the formation is estimated to stretch from the City of Dallas west and south, covering 5,000 square miles and at least 18 counties. The core counties for Barnett Shale exploration are Denton, Johnson, Tarrant and Wise. Some experts say that the Barnett Shale is the largest onshore natural gas field in the United States. (Railroad Commission of Texas, 2012) [pic]
Figure 1: Texas Counties with Producing Wells
Fracking, or sometimes referred to as fracturing, is done after the drilling process has been completed, and refers to the actual puncturing of the pocket of gas. It is usually done in less than a week. The fracturing process is done hydraulically within the Barnett Shale. The fracturing process, along with gas well drilling, is monitored by the Railroad Commission of Texas and the local municipalities. The Barnett Shale Energy explains the Fracturing process: Hydraulic fracturing is a procedure that creates small fissures in the layers of rock that contains natural gas and oil. The fracking process consists of pumping water, sand and other additives under high pressure into natural gas and oil bearing rock formations more than a mile and a half below the surface. The fracking process allows natural gas or oil to flow into the wellbore. (Ireland, 2011)
Fracking sometimes gets confused or grouped together with gas well drilling. The gas well drilling process is the actual drilling process that drills down close to a mile and half below the earth’s surface, which eventually leads to the fracturing process. The drilling and fracturing process from start to finish typically lasts anywhere from 30 to 45 days. Gas drilling sites are usually 3 to 5 acres in area and can contain anywhere from 8-15 wells depending on the setbacks and site constraints. A typical drill site will consist of a drill rig or derrick, along with a series of pipes and containers for the equipment and water storage facilities for the drilling and fracking processes. The drilling process consists of erecting a drilling rig or derrick, that drills vertically then ultimately turns horizontally. This turn is how the process came to be known as horizontal drilling. Horizontal drilling allows the rock formation to be fractured, thus producing more gas than a vertical well. The fracturing process cannot occur unless the well bore is drilled deep enough to extract the natural gas from the formation, as seen in Figure 2.
The deep drilling that is required for the fracking process to occur is one of the main causes of uncertainty among residents of The North Texas region. The drilling and fracturing process has been scrutinized by local communities and environmental groups for its unknown impact on water supplies, soil composition, and surrounding air quality. The scrutiny has intensified in areas that have allowed these exploration processes and operations to occur within subdivisions and neighborhoods. Fueling the concerns are troubling reports of poisoned drinking water, polluted air, mysterious animal deaths, industrial disasters and explosions called “Fraccidents” (Earthjustice, 2012). These concerns regarding safety have brought about numerous legal, environmental, political and ethical issues that must be addressed at all levels. Residents, land owners, and gas companies all have a vested interest in seeing these concerns outlined and addressed. This paper seeks to address the environmental, political, ethical and legal issues surrounding fracking and to provide recommendations for responsibly moving forward.
Figure 2: Horizontal Hydraulic Fracturing
Although hydraulic fracturing has become a new and innovative way of extracting natural gases and oils from the Barnett Shale, the process has raised significant speculation in regards to unknown environmental impacts. The popular usage has caused reasons for concern, not only for environmental enthusiasts, but more importantly, communities within the proximity of drilling sites. These concerns include environmental risks such as the threat of contaminated water, increased air pollution, and adverse climate changes. Water Contamination
The process of fracking entails the transportation of large volumes of fluid consisting of water, sand and a cocktail of chemicals that is pressurized into a well, thus causing the fracturing of the ground beneath already developed aquifers or communities. At every stage of this process the potential to contaminate water can be found. Fracking fluids can spill from transporting vehicles to and from drilling sites or pits of disposal, leak through faulty well construction, or travel though the created shale fractures. One risk analysis concluded, “Even in a best-case scenario, it was very likely that an individual well would release at least 200m³ of contaminated fluids” at the wastewater disposal phase (Rozell & Reaven, 2012). The risk of contaminating drinking water is controversial, but one should also consider the implications a contamination can cause. The extraction of wastewater dissolves various solids, metals and radioactive elements that can potentially carry into a drinking water supply which results into contamination. Unfortunately, these elements are currently not materials that water treatment plants are designed to filter for (O’Day & Reece, 2012). If contamination were to take place, the economic impact of cleanup, replacement or treatment could be monumental, and in some cases, never attempted because of the extreme costs (Dutzik, Ridlington, & Rumpler, 2012).
An even more serious risk of fracking is air pollution. Fracking leads to the emission of hazardous air pollutants directly through the process of fracturing and exhaust from the mechanical equipment used. (Dutzik, Ridlington, & Rumpler, 2012). Monitoring conducted by the Texas Commission on Environmental Quality detected levels of benzene, a known cancer-causing substance, at multiple sites (Ethridge, 2010). A hazard alert published by the Occupational Safety & Health Administration and the National Institute of Occupational Safety & Health found the potential risk for the lung disease silicosis, caused by the inhalation of silica, a chemical that comprises 99% of fracturing sand. (Worker Exposure, 2012). The Texas Tribune reports,
The fear is that the enormous increase in oil and gas well drilling, largely related to the technique called hydraulic fracturing or fracking, is releasing sizable amounts of gases. Among them, methane and volatile organic compounds (VOCs) like benzene. The federal government is convinced it’s a big deal. (Dave, 2012) The likelihood of such serious effects are questionable, but the risk of less extreme effects on residents of surrounding communities consist of headaches, eye irritation, respiratory problems and nausea due to the prolonged exposure to air pollutants. In addition to eye irritation and pounding headaches, one resident reported nose bleeds. After consulting a healthcare provider, doctors attested that the symptoms were most likely a result of environmental changes due to increased gas wells. Though the effects are unclear, an increasing number of people are blaming their health problems on the many growing wells (Clarren, 2006). Research has documented the higher concentration of methane gas in areas where hydraulic fracking is conducted.
This gas permeates well water in concentrations higher than normal. Because of this, industry officials, while conceding that drilling procedures should be held to strict standards, nevertheless insist that explosive conditions almost certainly would not be caused directly by the hydraulic fracturing of shale deposits deep underground (Encyclopedia Britannica, 2012). This stance seems politically motivated. Recent studies show that prolonged exposure to any of the above gases is hazardous. Residents in areas of exposure may be at “an increased risk of eye irritation and headaches, asthma symptoms, acute childhood leukemia, acute myelogenous leukemia, and multiple myeloma” (Banerjee, 2012). Climate Change
Another growing concern of fracking is the negative climate changes many believe the process is contributing to. In a two year survey examining 70 km of Barnett Shale located in Texas, researchers located 67 earthquakes, 24 of which epicenters were mapped within 3.2 km of injection wells (Dallas earthquakes caused by fracking, 2012). Researchers believe that this increase in earthquakes is a result of pressure built by wastewater injections and are more likely to persist even after injection wells are no longer in use. According to Dr. Cliff Frohlich, senior research scientist at the University of Texas’ Institute for Geophysics, the cause for the earthquakes is that some of those disposal wells around the Barnett Shale are also on fault lines (Henry, 2012).
Earthquakes, however, are not the only effect fracking has on the environment. A letter published in Climatic Change, a journal following findings related to climate change research, found that “during the life cycle of an average shale-gas well, 3.6 to 7.9% of the total production of the well is emitted to the atmosphere as methane (Table 1). This is at least 30 more than and perhaps more than twice as great as the life-cycle methane emissions we estimated for conventional gas, 1.7% to 6%” (Howarth, Santoro, & Ingraffea, 2012). Methane, a chemical compound found in gas, is considered to be a highly potent greenhouse gas contributing to the heightened risk of global warming. [pic]
Another aspect of climate change is global warming. A recent study from Cornell indicates that the natural gas extraction technique (Fracking) may be more harmful than even coal when it comes to global warming. This research has fresh data to support the conclusion that fracking is a major source of released methane. It looks at how much gas is released into the atmosphere, revealing a significant jump in atmospheric methane. Methane, as compared to CO2, is potent enough to trap over 100 times more heat over the course of ten years, making fracking one of the most environmentally destructive ways to source energy (Michler, 2012).With the increased popularity in fracking, it has become more and more important that we understand the consequences the process may have on the environment. Various research has been conducted, but findings have also been questionable. Nonetheless, hydraulic fracturing controversy grows. As activist against fracking publicize the dangers of the process through avenues such as the well-known film Gasland, many EPA (US Environmental Protection Agency) reports and investigations find little, and in some cases, no risks at all. The Politics of Fracking
It is appalling how politics tend to shape the current events of modern society. Despite the fear within the American community about fracking, and the danger associated with it, politics seem to be at its center. Gov. Rick Perry signed a bill that requires drillers to publically disclose the chemicals used in the extraction of gas and oil from dense rock formations. This makes Texas the first state to pass such a law. Several other state agencies had passed regulations forcing some disclosure, but none had made it a law (Huff Post, 2012). In May 2012, John Deutsh, former Obama administration official, in response to the anti-fracking activist, proposed a rule of thumb if fracking is to be accepted by the public. He proposed a philosophy of measure, disclose and improve. He is candid about industry taking the responsibility for reporting for public scrutiny and ensuring those measurements in the future (Rosen, 2012).
Moreover, he argues in favor of the benefits of fracking. He argues that if companies conscientiously try to minimize their environmental impact, the benefits could be “magnificent”(Rosen, 2012). He also states that discovered gas would be used for several purposes and the United States will spend less money on importation from gas overseas (Rosen, 2012). Meanwhile, some states have decided that it is better to ban fracking. Vermont’s governor recently signed a bill that bans fracking, making it the first state to do so. The Governor, Peter Shumlin, indicates “This is a big deal. This bill will ensure that we do not inject chemicals into groundwater in a desperate pursuit for energy. Fracking contaminates water and the science behind it is uncertain at best” (The CNN Wire Staff, 2012). Gas companies are utilizing their influence in politics to secure their interest by pushing an agenda that destroys the environment and endangers public health. In May of this year, the Ohio State Senate approved legislation that would prevent physicians from sharing information about patients’ environmental exposure to hydrofracking chemicals (Matthews, 2012).
The oil and gas industry has given hundreds of thousands of dollars to the Ohio General Assembly to help secure this support.Gas companies continue to resist efforts to find out about the toxic chemicals used in fracking. In another report, a new Pennsylvania law forbids health care professionals from sharing information they learn about certain chemicals and procedures used in fracking (Matthews, 2012). Dr. Helen Podgainy, pediatrician from Coraopolis, PA, laments this law, I have never seen anything like this in my 37 years of practice. My first priority is to diagnose and treat, and to be proactive in preventing harm to others. The new lawhinders preventative measures for our patients; it slows the treatment process by gagging free discussion (Matthews, 2012).
The politics of fracking will continue to shape the health status of American society. Dr. Jerome Paulson, director of the Mid-Atlantic Center for Children’s Health and the Environment at the Children’s National Medical Center in Washington, D.C., indicates that the law is not only unprecedented, but will complicate the ability of health departments to collect information that would reveal trends that could help protect the public health. He also calls this law “detrimental to the delivery of personal health care and contradictory to the ethical principles of medicine and public health”(Matthews, 2012). Ethics and Morality of Fracking
Though hydraulic fracturing, or fracking, have been associated with many issues, chief among them are environmental and political, there is not much discussion on the ethics of fracking. Some find fracking as infringing on property value while others feel fracking is the best way to discover natural sources of energy on domestic soil. Perhaps the most prominent issue with fracking, aside from political, environmental and legal, is the morality of and ethics of fracking. There have been a number of issues identified with fracking. Among them are the decline in drinking water, heavy truck trafficking and decline in property value. In an article defining the ethics of fracking, Kaminer states that the ethics of fracking is relative to the person making the call. He states that if one believes that fracking is not wrong because they believe that something registers on a higher scale of importance or morality or ethics to them personally, then fracking would come in second as to its righteousness (Kaminer 2012)[need full bibliography].
Some say that fracking is too high of a risk on the environment, forcing voters and consumers to choose which is more valuable, the potential good that comes from fracking or the almost inevitable collateral damage that comes from the act of fracking. Although some are not calling for an outright ban on fracking, there is full disclosure sent out to the parties involved in this practice. While many disagree that the benefits of fracking outweigh the potential dangers, ethically it is right to deliver full disclosure of fracking pro’s and con’s to the public. We all have a right to know about potential dangers and benefits of this practice. Full disclosure is often not the case as many companies proceed with fracking. The Covington family case in North Carolina is a prime example of fracking ethics. This family owns 1,000 acres of prime fracking land but has refused offers to lease mineral rights to frack on their land. The more interesting twist to this story is that the property owner, Ray Covington, is also a member of the new Mining & Energy Commission, which will oversee fracking in North Carolina( MURAWSKI, 2012)[need bibliography].
The true ethics dilemma is this; as a member of the MEEC Covington may not have to disclose his potential gains from leasing. This is because the North Carolina disclosure forms do not provide specifics for that. The article points out the reason for this oversight is simply because this is history in the making. Some states simply choose not to participate in fracking for this reason because the disclosure forms do not provide full disclosure, dubbing them “ethical booby-traps” ( MURAWSKI, 2012)[bibliography needed]. In contrast to North Carolina, Texas, a state with more than a century of energy exploration, mineral rights holdings and lease contracts, have to be listed by members of the Railroad Commission, the Lone Star State’s equivalent of the N.C. Mining & Energy Commission. Those disclosures would fall under real property interests, said Tim Sorrells, general counsel for the Texas Ethics Commission [need citation. Here] Legal Implication
Hydraulic fracturing continues to be an issue of national controversy. It has raised community sentiment and political maneuvering. In recent time it has aggravated lawsuits around the country. Most recently, in Albany, NY, Anschutz Exploration Corporation filed suit in state Supreme Court in Tompkins County against the town of Dryden, a rural suburb of Ithaca with about 13,000 residents, where local officials amended the zoning law to expressly ban all gas drilling within the town’s unincorporated borders (Rueter, 2012). Anschutz owns oil and gas leases over 22,000 acres of land in Dryden, and argues that New York’s Environmental Conservation Law (ECL) bars local governments from any regulation of drilling. Bystanders and commentators have indicated that such a lawsuit has brought to light the conflict between the conservation law and “home-rule” authority, which gives towns the power, among other things, to create land-use policies, including zoning ordinances (Rueter, 2012). Another issue of lawsuit is the Monongalia county case. It is an example of how such a conflict played out over fracking regulations in Monongalia County, West Virginia (Northeast Natural Energy, LLC v. City of Morganton, 2011).
The city of Morganton enacted an ordinance banning fracking and horizontal drilling within the city or one mile outside of city limits. Energy companies almost immediately challenged this ordinance as unconstitutional, arguing that the ordinance was preempted by regulations enforced by the West Virginia Department of Environmental Protection (WVDEP), and was thus precluded. The court held that the “state’s interest in oil and gas development throughout the state . . . provides for the exclusive area of this law to be within the hands of the WVDEP” (Northeast Natural Energy, LLC v. City of Morganton, 2011). Thus, the ordinance was invalid and preempted by state regulation. This continues the legal fight for and against fracking in the country. Texas, cognizant of the popularity of fracking, coupled with the danger and legal implications, passed a bill in May 2001 which requires oil and gas operators in the state to disclose the chemicals used in fracking on a website maintained by the Groundwater Protection Council and the Interstate Oil and Gas Compact Commission.
It is also mandatory that operators file a list of chemicals used with the Railroad Commission of Texas(npr, 2012). It is one way of dealing with the presumed legal issue that may arise in fracking since it is a developmental need for the state and country. However, what this research has uncovered in the annals of drilling is the constant battle between citizens’ action groups and drilling companies. The state that should protect the citizenry seems to exclude itself from the fight perhaps because of limited data to prove that fracking is hazardous, and wanting to protect its interest in the franchise. Since the Marcellus Shale hydrofracking, potential plaintiffs which include citizens’ groups, homeowners, municipalities, and environmental groups have used various theories for litigation against energy and gas companies in pursuit of fracking. These theories are the basis of the strong rejection we see in the communities about fracking. Negligence
Negligence is the most common theory. It was used in the Marcellus Shale case. The energy company owes a duty to the community and citizenry whose backyard or environments are used to do fracking. Pernicone et al also assert the negligence per se is also the grounds for a claim in such case. They indicate “If plaintiffs claim violation of a state or federal statute or regulation, such as the Clean Air Act, a single violation can constitute negligence per se.”(Pernicone, 2012). Nuisance
Private nuisance claims theory can be used against fracking in court. It is used when plaintiff can prove that hydro-fracking allegedly interfered with a person’s interest in the “use and enjoyment” of his/her land. It is an infringement of tort law §822. One can argue that drilling produces loud noise, emits excessive levels of greenhouse gas, and may spoil residents’ views. Nuisance claims can also be used as climate-change liability claims. In the Connecticut, et al v. American Electric Power case, the opinion of the Supreme Court led to the dismissal of a Federal common law based nuisance claim brought against emitters of greenhouse gas, finding that Congress had preempted the field in regulating green Clean Air Act (Connecticut, et al v. American Electric Power Co., 2011). Notwithstanding, the extent to which a climate change lawsuit premised on state common law based nuisance may still be viable was expressly left open in American Electric Power. Strict Liability
Strict liability is another potentially viable cause of action. Though it is unclear whether it applies to gas-well drilling, it has been used in similar litigation. For example, in the Fiorentino v. Cabot Oil & Gas Corp., the court denied a motion to dismiss a strict liability claim. In this case, the plaintiffs alleged that hydro-fracking and other gas production activities released toxins onto their property (Fiorentino v. Cabot Oil & Gas, 2010). Fraud
Hydro-fracking companies face an array of fraud-based causes of action. These companies can be charged with fraudulent concealment and
misrepresentation of potential liability-causing risks that were not disclosed by a driller when a drilling lease agreement was executed. For example, in the Cabot case Pernicone et al writes: A homeowner sued a drilling company that had drilling rights on his property alleging that the company fraudulently concealed the toxic nature of substances used in “fracking fluid.” The homeowner claimed that he would never have agreed to the lease if he had known of the harmful nature of these substances. (Pernicone, 2012) This is an example of claims that a drilling company defendant “failed to warn” the homeowner of the toxic nature of certain ingredients in the fracking fluid used in the hydro-fracking process. This is where the hazardousness of fracking is litigated. Statutory Violations
The final theory used against drilling companies is that of Statutory Violation. The statutory actions that seem to have gained some traction are those enacted statutes authorizing private citizens to pursue lawsuits against alleged violators of statutory obligations. In effect, these statutes authorize the plaintiffs to act as de facto “private attorney generals, in the absence of adequate enforcement activity by a relevant regulatory agency”(Pernicone, 2012). Though such claims do not support recovery of damages, under certain circumstances courts may allow recovery of attorneys’ fees and the assessment of civil penalties against the alleged violators. Conclusion and Recommendation
America consumes 25 percent of the world’s produced oil and holds less than 3 percent of the world’s proven oil reserves (Energy Information Administration, 2000). Fracking would contribute to the country’s need to be less dependent on foreign oil. It is true that it will create jobs in a time of recession but it also has environmental consequences. Aware of the pros and cons of fracking through this analysis, the following would be recommended: 1. The need for an exclusive scientific study by the state/federal government. Such a study should not be sponsored by an oil company, which may breed a conflict of interest. 2. The need for active community involvement in the decision-making process. It has a political impact. As Robert F. Kennedy indicates, “In 30 years, I have not seen anything come close to this, in terms of the mobilization of the grass roots. You’ve got 20,000 people in the state who consider themselves to be anti-frack activists. So I think that’s got to impact the political process all around”(Hakim, 2012). 3. The ethics of fracking need to be brought to the discussion table. 4. If fracking is severely needed, disclosure laws need to be enacted. This may be the basis for land leasing contracts, responsible fracking and litigation.
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