INTRODUCTION II. RECENT INCREASE AND INTEREST IN INDUCED SEISMICITY A. Basic Mechanics of Inducing Earthquakes B. Hydraulic Fracturing ("Fracking") & Induced Seismicity III. FEDERAL REGULATORY FRAMEWORK AND RESPONSE A. Limited Federal Jurisdiction B. B. Limited statutory Application IV. STATE REGULATORY RESPONSE A. Colorado's Regulatory Response 1. Rocky Mountain Arsenal 2. Rangeley Experiments 3. COGCC Authority to Address Induced Seismicity B. Oklahoma's Response to Induced Earthquakes 1. Denial and Delayed Response from State officials 2. Recent OCC Efforts & Challenged Authority V. VOLUNTARY INDUSTRY EFFORTS IN RESPONSE TO INDUCED SEISMICITY: CORPORATE SOCIAL RESPONSIBILITY & SOCIAL LICENSE TO OPERATE VI. CONCLUSION I. Introduction
Beneath the earth are natural forces with the potential to damage property resting above the surface. Throughout history, human progress has always been subservient to the physical laws of nature. But through technological improvement and innovation, mankind's ability to shape the world is increasingly blurring the lines between natural and anthropogenic (i.e., caused by humans) events. (1) The oil and gas industry's ability to extract ancient deposits of energy is one of the greatest examples of this phenomenon, and through the advent of unconventional drilling techniques, "the orbit of humanity's reach has enlarged itself dramatically" in the past decade. (2)
Our ability to harness energy is what makes our modern society possible. (3) The development of unconventional sources of oil and gas using horizontal drilling and hydraulic fracturing offers a variety of benefits, including a more secure energy supply, improved geopolitical stability, and a boost to the industrial economy. (4) At the same time, unconventional production has become increasingly controversial as new environmental and social concerns emerge in the wake of shale development. (5) Induced earthquakes are perhaps the "most unexpected phenomenon" of America's energy boom. (6)
The frequency and occurrence of seismic activity in the central and eastern United States has increased dramatically since the boom took off around 2009. (7) This uptick in seismic events has led many to suspect that the connection between unconventional production and induced seismicity is far from coincidence. Plenty of myths and inaccurate reporting surround this supposed connection, but the consensus from the scientific community is that the injection of wastewater fluids is the most likely culprit for the increasing rates of seismicity. (8) While hydraulic fracturing itself is unlikely to result in any significant levels of seismicity felt at the surface, the rapid development of unconventional sources using this technique has increased the need for disposal capacity, sometimes in areas where disposal has not previously occurred. (9)
The "exponential growth patterns of seismicity" in some parts of the country have prompted a varied response from concerned citizens, regulators, and the industry. (10) This article analyzes how existing measures to regulate the oil and gas industry could be improved to provide greater protection against the risk of induced seismic activity. Section II discusses how the oil and gas industry induces earthquakes, primarily in the context of wastewater disposal from class II injection wells. Sections III and IV outline the existing regulatory framework at the federal and state levels through a comparative survey of the response of state officials in Oklahoma and Colorado. Section V identifies several non-regulatory strategies that companies can employ to mitigate the incidence of damaging earthquakes. Section VI concludes by suggesting that the best approach to mitigate seismic risk involves proactive regulatory measures such as those adopted in states like colorado, in conjunction with voluntary efforts from the industry itself.
Recent Increase and Interest in Induced Seismicity
Basic Mechanics of Inducing Earthquakes
Induced earthquakes occur when anthropogenic activity "causes a rate of energy release, or seismicity, which would be expected beyond the normal level of historical seismic activity." (11) Over the decades, scientists have recognized an array of human activities known to cause earthquakes. (12) Induced seismicity has been observed in the oil and gas industry since at least the 1930s (13) and can be attributed to three types of large-scale fluid injection: wastewater disposal, hydraulic fracturing, and enhanced recovery. (14) While each process is capable of triggering seismicity, (15) the "vast majority" of the recent increase, "including the largest and most damaging quakes," has been attributed to wastewater disposal. (16) For this reason, the following analysis is primarily concerned with addressing seismicity from wastewater disposal. (17)
The basic process by which wastewater disposal causes earthquakes is relatively well understood. (18) Injecting fluids deep into a geologic fault can lubricate the formations and in rare cases may cause them to slip (i.e. suddenly release stored energy). (19) This release of energy is felt at the surface in the form of a vibration, or earthquake. Scientists at the United States Geological Survey (USGS) explain that most injection operations "do not appear to induce earthquakes," and when they do, the damage is often minimal. (20) Most of the earthquakes have been aseismic, i.e. not causing any appreciable seismic activity for quakes that measure below a magnitude of three on the Richter scale. (21) However, induced seismicity associated with wastewater disposal "will become an increasingly important issue" as the United States continues to develop its domestic energy resources. (22)
Hydraulic Fracturing ("Fracking") & Induced Seismicity
Hydraulic fracturing, or "fracking," is the process of injecting a cocktail of mostly water, sand, and chemicals at high pressure into deep geologic strata to fracture hydrocarbon-bearing source rocks in order to provide permeable pathways to extract the oil and gas. (23)
However, the role that fracking plays in the increased rate of seismic activity has been misrepresented by the media and interest groups on both sides of the fracking debate. (24) Opponents sometimes assert that the fracking process itself is the cause of the recent trend in damaging earthquakes. (25) Industry loyalists counter by stating that fracking plays no role since the injections are of a short duration and use much lower volumes of water than other types of injection activities. (26) Yet both sides miss the point by focusing on the fracking process itself, rather than its contribution to the overall volume of wastewater requiring disposal. Although a few instances of fracking-related earthquakes have been observed, (27) the hydraulic fracturing process itself "does not typically induce felt earthquakes" and "does not play a key role" in the overall increase in seismicity. (28)
In other words, the process of injecting high pressure liquids during the fracking process does not, by itself, lead to the vast majority of observed seismic activity. Nevertheless, there is a connection: the exploitation of unconventional formations--made possible by fracking and other production techniques--"has contributed significantly to a growing volume of wastewater requiring disposal." (29) As a result of unconventional drilling, some of these disposal wells are also "located in geographic areas where disposal has not previously occurred." (30) Sometimes disposal wells are "bored into unmapped faults," and this practice has only become more widespread since the domestic energy boom. (31)
Considering this incredible uptick in seismic activity, it seems clear that finding a solution to prevent, or at least mitigate, this phenomenon is of great importance to communities feeling the brunt of the impact. Efforts are needed to ensure that oil and gas wastewater injection operations do not pose an undue risk of creating damaging earthquakes. These operations are regulated to varying degrees at the federal, state, and local level. (32)
Federal Regulatory Framework and Response
The primary federal legal authority to address induced seismicity comes from the Safe Drinking Water Act (SDWA), which directs the EPA to "publish proposed regulations for State underground injection control programs" in order to prevent any underground injections that endanger sources of drinking water. (33) Of the more than 800 billion gallons of fluid generated annually by the oil and gas industry, over one-third is injected into Class II disposal wells. (34) The SDWA authorizes the EPA to delegate primary enforcement authority, or what is often referred to as "primacy," over the UIC program to states if they meet certain requirements. (35) If a state chooses not to assume primacy, or its plan is not approved, the EPA is responsible for implementing the UIC program in that state. (36) Most oil and gas producing states, including Colorado and Oklahoma, have assumed primacy for Class II disposal wells. (37) For this reason, and because the SDWA was not designed to address seismicity, the federal government's ability to remedy induced earthquakes is relatively limited.
Limited Federal Jurisdiction
The Obama Administration, through the EPA, has mostly stayed out of the issue in terms of direct regulation or federal rulemaking. (38) This is primarily due to the fact that the EPA's jurisdiction to regulate induced earthquakes "remains unclear" and it lacks the authority to do so in places where the induced seismic activity is most prolific. (39) Instead, the EPA and other federal agencies have played more of an investigative role and encouraged states to adopt certain mitigation measures.
In states like Pennsylvania where the EPA implements the UIC program, the EPA evaluates seismicity risk factors through the permitting process authorized under [section] 300 of the...