Comment on The Shale Oil and Gas Revolution, Hydraulic Fracturing, and Water Contamination

• Date: 01 August 2015

45 ELR 10744 ENVIRONMENTAL LAW REPORTER 8-2015

C O M M E N T

Comment on The Shale Oil and Gas

Revolution, Hydraulic Fracturing,

and Water Contamination

by Peter D. Robertson

Peter D. Robertson is Senior Vice President for Corporate Aairs for the Pebble Partnership.

I

think Professor Merrill and Dean Schizer have made

a very thoughtful proposal which has genuine merit

and deserves equally thoughtful consideration by states

across t he country. I have a series of what are essentially

random reactions, thoughts, and suggestions, but t hey all

ow from a fundamental position that their suggestions are

an excellent model for states to consider as they adopt new

or update old regulatory and liability regimes. My observa-

tions, of course, spring from my varied experiences in the

environmental a rena. I worked at the U.S. Environmen-

tal Protection Agency (EPA) for six years a nd I support its

mission as strongly now as I did then. I also worked at a

trade association for the independent natural gas produc-

ers—the companies that produce the majority of the natu-

ral gas in our country today. I am the yellowest of yellow

dog Democrats, and I desperately want renewable energy

resources to succeed and become a much bigger part of

our energy equation. But I also believe that won’t happen

for some time, and that we are going to have to continue

to burn fossil fuels for the foreseeable future; if I’m right

about that, I want us to burn the cleanest of those fuels—

natural gas—to the greatest degree possible. And I want us

to get that gas out of the ground in the most sustainable

way possible.

e authors’ remarks make clear to me that they believe

that the shale revolution of the last decade is, essentially, a

good thing, a nd that any eorts to create regulatory and

liability schemes should strive to do so in a way that does

not ki ll this engine of economic opportunity. I certainly

agree with that, and think generally that their proposals

are well-suited to ensure the continuing vibrancy of the

natural gas industr y.

e authors also note that so far, there is little evidence

that fracking contaminates groundwater, and especially

that fracking activity itself—as compared to surface spills

of fracking uids or mishandling of fracking wastewaters—

is a likely source of groundwater contamination. ey also

note that the public must believe that shale drilling is safe,

or the shale revolution could be v ulnerable to regu latory

overkill. is is of particular importance to me, because I

believe we’re dangerously close to a point now where entire

communities believe that it both isn’t safe and can’t be

made safe. My sense when I worked at America’s Natural

Gas Alliance (ANGA)—and it hasn’t abated any since that

time—is that our national debate about fracking has been

dangerously close to a fact-free debate. A nd we’re seeing

the consequences of that today. Municipalities around the

country are seeking to ban fracking and natural gas devel-

opment within their borders. Some states are putting years-

long moratoria on fracking. e great state of Vermont has

essentially banned fracking—a particularly courageous act

when one considers that Vermont produces no natural gas.

I think these fear-based, rather than fact-based, reactions

argue strongly that any eort to encourage the adoption

by states of the k ind of structure that the authors suggest

should be accompanied by—or perhaps preceded by— an

eort to educate the public about the true risks of fracking,

as well as the benets of natural gas. States, the natural gas

industry, power providers, and other stakeholders all have

to be involved in that eort. I’m afraid that without it, the

public won’t be convinced that anything short of a fracking

ban will keep their groundwater safe.

e authors also note that regulatory responses to

potential fracking risks should be dynamic so that we can

best address real risks, rather than perceived risks, as we

learn more through experience about what t hose real risks

are. e sad truth of regulatory eorts, in my experience,

is that is that they are not typically dynamic, at either the

federal or state level. It is understandable— states typically

lack the resources to update regulations frequently enough

to keep current with changing industries. e rapid growth

in shale resources is a n example—some states with shale

resources that did not previously have a history of oil and

gas activity did not have sucient regulation in place to

deal with the shale boom. ey have had to play catch up.

Nor w ill many states have the resources to update their

regulations to keep pace with advances in technology. One

way to bridge the gap, at least temporarily, is by relying

on voluntary industry best practices to help ll the gaps.

Such programs can typically be adopted more quickly than

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