Let's not frack this up: state-based solutions for the regulation of hydraulic fracturing and the disposal of flowback water.

• Author: Maur, Alexander T.

"To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. (1)

1. INTRODUCTION

   Hydraulic fracturing--also known as fracking or hydrofracking--is a highly controversial process used for the extraction of oil and natural gas. (2) To date, regulation at the federal level--by Congress and the EPA--has failed to set clear standards for use of the technique. (3) Many proponents of fracking applaud the positive economic impacts, job creation, and a future of American energy independence that are associated with its use across the United States. (4) There are, however, a number of areas of environmental concern associated with hydraulic fracturing. (5)

   Due to exemptions created through the 2005 Energy Policy Act, hydraulic fracturing remains largely free from most federal environmental regulations, including the Safe Drinking Water Act (SDWA). (6) As a result of this gap in regulation, each state enacted its own laws to confront the issue, and there is now discussion over the constitutionality of restrictions on the transport and disposal of the wastewater, or flowback water, that is created after the fracking process is completed. (7)

   Despite the federal standstill on fracking legislation, state and local governments can take a proactive role in changing the dialogue surrounding fracking regulation. (8) For the time being, it appears that significant federal guidance will not be given on the topic. (9) An outright ban on hydraulic fracturing within a state would likely survive most constitutional challenges under the Dormant Commerce Clause of the U.S. Constitution. (10) States that wish to take a more measured approach, however, can socialize waste disposal sites and limit the possible effects of pollution within state borders without resorting to statewide bans on hydraulic fracturing. (11)

   This Note will first outline the hydraulic fracturing process, including how it works, its growth in the United States, and the environmental concerns associated with the extraction practice. (12) The federal regulation of fracking and current proposed legislation are discussed in Part II.C. (13) Part II.D explores the different economic and environmental pressures that states are encountering within their borders and how they are regulating the fracking process. (14) Part II.E focuses on a brief overview of the Commerce Clause, Dormant Commerce Clause, and market-participant exception, with a particular focus on the disposal of fracking waste. (15)

   The analysis in Part III.A then discusses the federal government's failure to take a clear stance on hydraulic fracturing and the growing necessity for local solutions to environmental protection. (16) Part III.B recognizes the potential constitutional barriers to a state-based approach to managing the fracking process and the disposal of fracking waste fluid. (17) Lastly, Part III.C suggests that states and localities that wish to limit the disposal of fracking waste within state borders can do so without the federal government through various policies. (18) These policies include statewide bans on fracking, enacting local zoning ordinances, or creating state- owned disposal sites to control waste from out-of-state operations, while managing in-state wastewater disposal in a responsible manner. (19)

2. HISTORY

   1. The Process of Hydraulic Fracturing

      The process of hydraulic fracturing involves the injection of pressurized fluids--generally a mix of water, sand, and chemicals--deep in the ground to fracture rock and create openings that allow gas to flow into production wells. (20) This natural gas extraction process has its roots in the nineteenth century, but drilling companies first used the process in the 1930s. (21) Unlike conventional natural gas production, where wells are drilled into permeable or semipermeable rock formations, using fracking enables drillers to access unconventional natural gas that would otherwise be unavailable for extraction. (22) This technological advancement for extracting unconventional natural gas resulted in a rapid spread of natural gas drilling operations across the United States. (23)

      There are three major components involved in a fracking operation once the initial construction of the well is complete. (24) First, pump trucks inject a pad of fracking fluid into the subject well. (25) Next, propping agents, or proppants, are injected into the well along with the fracking fluid. (26) The third stage of the process involves bringing the fracking fluid back above ground, leaving the proppants beneath the surface, and allowing for the subsequent extraction of natural gas from these unconventional rock formations. (27) This fluid, also known as wastewater or flowback water, often contains high levels of total dissolved solids (TDS), naturally occurring radioactive materials, fracking fluid additives, and metals. (28)

      Supporters of hydraulic fracturing applaud the economic advances that this technique has on drilling communities and the American economy as a whole. (29) Increased tax revenue, American energy independence, and job creation are just some of the cited improvements that fracking contributes to the economy. (30) Others, however, are concerned that the long-term economic and social benefits are not as impressive as experts originally anticipated. (31) While a state is able to profit from these emerging drilling operations, the benefits at the local level can often be short-term and can have detrimental effects once drilling is completed in the area. (32)

   2. Fracking and Concerns Over Its Environmental Impact

      Despite the debate surrounding the socioeconomic benefits and pitfalls associated with fracking practices, the real environmental impacts of the technique remain unclear. (33) In general, courts have refused to go so far as to hold drilling companies strictly liable for any harm that occurs during the hydrofracking process. (34) The EPA, however, has addressed some known, well-established risks associated with natural gas extraction that potentially impact the surrounding environment. (35)

      One primary source of environmental concern is the effect hydraulic fracturing may have on the contamination of groundwater and aquifers. (36) In 2004, the EPA conducted a study that found that the injection of fracking fluids into coalbed methane wells posed "little or no threat" to underground sources of drinking water. (37) More recently, the EPA released a separate preliminary report out of Wyoming, but the investigation was subsequently abandoned. (38) Due to the nature of vertical fractures created during the extraction process, however, there are still real fears that some of the chemicals could leak into aquifers located above these hydrocarbon formations. (39) Aside from these contamination fears, there is also a tremendous amount of water used in each fracking operation. (40) This kind of heightened water usage, during typically brief drilling operations, can have significant negative effects on local water supplies and the surrounding environment. (41)

      The disposal of flowback water used during the fracking process is one of the most troubling aspects of any frack job. (42) Once this fluid is back above ground, there are a limited number of disposal solutions available. (43) Among these are the injection of the flowback water into underground injection wells that store the flowback water permanently, discharging it to either public or commercial treatment plants, or recycling the flowback water for use in subsequent hydraulic fracturing operations. (44)

      Drilling wells and subsequent fracking activities have also been linked with increased air pollution, greenhouse gas emissions, and seismic activity. (45) In addition, there are secondary environmental impacts caused by drilling, sometimes referred to as "neighborhood character issues." (46) These social impacts are less direct but can nevertheless present serious long-term consequences for localities affected by hydraulic fracturing. (47) Thus, although an American energy future built around natural gas production presents an opportunity for economic growth and security, the possible negative effects of drilling at the local and national level are apparent. (48) Due to the often immediate and direct effect that fracking can have at the local level, there is a greater fear that these communities will struggle to benefit from many of the long-term benefits of unconventional natural gas production. (49)

   3. Federal Regulation: The Energy Policy Act of 2005 and Congress's Inaction

      Beginning in the 1960s, Congress began to enact a string of statutes, which had the broad policy objective of protecting public resources such as air, water, and human health. (50) The majority of these federal initiatives are part of a more "cooperative" scheme, which involves individual states meeting minimum requirements and subsequently implementing each state's respective state-based programs. (51) More recently, however, Congress passed the Energy Policy Act of 2005. (52) While this piece of legislation was largely seen as an attempt to combat increasing energy problems, it also contained important exceptions for hydraulic fracturing from key federal programs, like the Clean Drinking Water Act (CDWA). (53) This exemption is often referred to as the "Halliburton loophole," because it allows companies that drill for oil and natural gas to escape further regulation for fracking operations. (54)

      At the time of this Note, a proposed bill in Congress--the Fracturing Responsibility and Awareness of Chemicals Act (FRAC)--remains inactive, with many predicting it has little chance...