WHAT THE FRACK SHALE WE DO? A PROPOSED
ENVIRONMENTAL REGULATORY SCHEME FOR
JASON T. GERKEN*
I. INTRODUCTION: A MODERN-DAY GOLD RUSH
Over lunch at a Colorado Oil and Gas Association conference in
August 2011, Halliburton Company Chief Executive Officer Dave Lesar
offered a glass of Halliburton’s new hydraulic fracturing fluid to a
colleague.1 The executive took a swig of CleanStim,2 a trial fluid that
Halliburton’s website cautions should not be considered edible.3 Oil and
gas industry insiders lauded the demonstration as proof that such
companies are taking public concerns over the content of the fluid to
heart.4 Fracking critics and other environmentalists called it a “stunt [that]
is very much indicative of the problem the industry has in assuring the
public that they are in fact taking public concerns seriously.”5
However, perhaps the industry is taking public concerns too seriously.
Three months after the conference in Colorado, an Anadarko Petroleum
representative spoke on the topic of “Understanding How Unconventional
Oil & Gas Operators are Developing a Comprehensive Media Relations
Strategy to Engage Stakeholders and Educate the Public” at an industry
Copyright © 2013, Jason Gerken.
* Juris Doctor Candidate, Capital University Law School, May 2013. I earned an A.B.
in Politics from Princeton University in June 2006. I would like to thank my family for an
environmentally conscious upbringing, my fellow staff members on the Capital University
Law Review for their support, and Professor Dennis Hirsch, whose insights were invaluable
as I sought to tackle this evolving issue.
1 Catherine Tsai, Halliburton Executive Drinks Fra cking Fluid at Conference,
HUFFINGTON POST (Aug. 22, 2011, 7:36 PM), http://www.huffingtonpost.com/2011/08/22/
3 CleanStim® Hydraulic Fracturing Fluid System, HALLIBURTON, http://
4 Tsai, supra note 1.
5 Id. As Mark Brownstein, Chief Counsel of the Energy Program at Environmental
Defense Fund, noted upon viewing the demonstration, “[Q]uite honestly, a homeowner in
Pennsylvania doesn’t have the option of having an underling drink his water. He has to do
it himself.” Id.
82 CAPITAL UNIVERSITY LAW REVIEW [41:81
get-together in Houston.6 He offered some advice to others concerned
about mounting public pressures: “Download the U.S. Army-slash-Marine
Corps Counterinsurgency Manual, because we are dealing with an
insurgency.”7 “There’s a lot of good lessons in there and coming from a
military background, I found the insight in that extremely remarkable,” he
continued.8 Another company’s representative, addressing stakeholder
concerns about fracking, noted that “[w]e have several former
[psychological operations] folks that work for us . . . because they’re very
comfortable in dealing with localized issues and local governments.”9
Even if this militaristic attitude is overblown,10 it raises important
questions: What is so controversial about fracking, and why are certain
stakeholders outraged about the environmental impact of the process?
Hydraulic fracturing, or “fracking,”11 is a well treatment designed to
increase the productivity of a well.12 Though fracking has been used since
at least 1947,13 it has only recently contended for Oscars.14 Disposal of
6 Eamon Javers, Oil Executive: Military-Style ‘Psy Ops’ Experience Applied, CNBC
(Nov. 8, 2011, 1:35 PM), http://www.cnbc.com/id/45208498.
10 Id. An industry spokesperson dismissed the “insurgency” comment as a joke: “There
are no black helicopters here. No one’s rappelling down from a helicopter at three a.m.
looking through people’s trash. We go to township meetings, and we hear what people
have to say.” Id.
11 Hannah Wiseman, Risk and Response in Fracturing Policy, 84 U. COLO. L. REV.
(forthcoming 2013) (also known as “hydrofracking” and may be spelled “(hydro)fracing” or
12 Evaluation of Impacts to Underground Sources of Drinking Water by Hydraulic
Fracturing of Coalbed Methane Reservoirs, Appendix A: Department of Energy –
Hydraulic Fracturing White Paper (EPA 816-R-04-003, June 2004), http://www.epa.gov/
ogwdw/uic/pdfs/cbmstudy_attach_uic_append_a_doe_whitepaper.pdf. Part II offers a
much more in-depth explanation of the fracking pr ocess.
14 GasLand, a 2010 film directed by Josh Fox, was nominated in the “Documentary
Feature” category in 2011. Charles Riley, ‘GasLand’ Oscar Nod Draws Industry Ire,
CNNMONEY (Feb. 27, 2011, 9:06 AM), http://money.cnn.com/2011/01/26/news/
companies/gasland_movie/index.htm. The film includes vivid images of families living
near fracked wells able to light their tap water on fire. Terri Finch Hamilton, Can You Light
Your Tap Water on Fire? Award-Winning Documentary ‘Gasland’ in Town, MLIVE (Mar.
21, 2011, 1:38 PM), http://www.mlive.com/entertainment/grand-rapids/index.ssf/2011/
2013] HYDRAULIC FRACTURING 83
fracking fluid may result in earthquakes,15 and environmentalists contend
that escaped or spilled fracking fluid pollutes groundwater and monstrous
drilling rigs pollute the air.16 Yet, fracking is no longer subject to federal
In the last several years, oil and gas companies have sent landmen to
purchase billions of dollars of leaseholds in the oil- and gas-rich shale
regions of the United States.18 Industry and government sources cite such
development as an important step in America’s energy future.19 As
President Obama noted in a recent speech concerning America’s energy
security and the prospect of enhanced natural gas production, “Recent
innovations have given us the opportunity to tap large reserves—perhaps a
century’s worth of reserves, a hundred years worth of reserves—in the
shale under our feet.”20
15 In 1967, the largest and most well-known United States earthquake caused by human
activity, measuring a magnitude of 5.5, resulted from fluid injection at the Rocky Mountain
Arsenal near Denver, Colorado. CRAIG NICHOLSON & ROBERT L. WE SSON, U.S.
GEOLOGICAL SURVEY BULLE TIN 1951: EARTHQUAKE HAZARD ASSOCIATED WITH DEE P WELL
INJECTION—A REPORT TO THE U.S. ENVIRONMENTAL PROTECTION AGENCY 1 (1990),
http://pubs.usgs.gov/bul/1951/report.pdf. See also FAQs—Earthquakes, Faults, Plate
Tectonics, Earth Structure, UNITED STATES GEOLOGIC AL SURVEY,
updated Oct. 5, 2012); Mark Fischetti, Ohio Earthquake Likely Caused by Fracking
Wastewater, SCI. AM. (Jan. 4, 2012), available at http://www.sci entificamerican.com/
article.cfm?id=ohio-earthquake-likely-caused-by-fracking (attributing the cause of two rare
earthquakes in northeast Ohio, one measuring 4.0 on the Richter scale, to the injection of
16 See discussion infra Part II.C.
17 See discussion infra Part III.C.
18 For example, by July 2011, Chesapeake Energy estimated that it had spent between
$1.5 billion and $2 billion to acquire the rights to 1.25 million acres in Ohio. Spencer Hunt,
Drillers Snapping Up Lease Rights in Ohio, COLUMBUS DISPATCH, Sept. 26, 2011, at A5.
Hess Corporation paid more than $1.3 billion in September 2011 to lease more than
180,000 acres in eastern Ohio. Id.
19 See, e.g., Barack Obama, President of the Un ited States of America, Remarks by the
President in State of the Union Address (Jan. 24, 2012), available at
address; Jack Williams, President of XTO Energy, Speech at the Shale Gas Insight 2012
Conference and Exhibition (Sept. 20, 2012).
20 Barack Obama, President of the United States o f America, Remarks by the President
on America’s Energy Security at Georgetown University (Mar. 30, 2011), available at