Specialty Bar Series—Sam Cary
Jill Dorancy, J.
Any opinions, conclusions, or recommendations expressed in this article are those of the author and do not represent or reflect the views of the Colorado Oil and Gas Conservation Commission
This article explores noise pollution and environmental justice issues arising from oil and gas facilities in the context of the Noise Control Act. The article also considers options for nuisance claimants when addressing environmental noise and explores balancing environmental justice with the benefits of the oil and gas industry.
Faced with escalating environmental problems relating to noise, Congress passed the Noise Control Act (Noise Act) in 1972. Additional laws, regulations, and policies were subsequently created to reduce noise pollution and enforce noise violations. But the federal government did not consistently enforce these measures, and ultimately determined that noise pollution should be primarily addressed by state and local governments. In this context the environmental justice movement emerged, highlighting the unequal environmental burdens experienced by communities of color and the poor.
This article discusses the history of the Noise Act. It describes oil and gas development and how noise relates to this industry; examines the historical context of environmental justice in connection with noise pollution; and discusses amending and refunding the Noise Act as remedies for disparate environmental impacts.
The Noise Pollution Issue
Inadequately controlled noise presents a growing danger to the public health and welfare, particularly in areas where oil and gas activity is prevalent. Until recently, major sources of noise pollution included transportation vehicles and equipment, machinery, appliances, and other products in commerce. The growing use of drilling techniques such as horizontal drilling and hydraulic fracturing (fracking) with unconventional wells potentially adds new sources of noise pollution with each well site constructed.
These sources of pollution are not evenly distributed. Through the technicalities of permitting and well siting, discriminatory practices sometimes lead to the intentional siting of oil and gas facilities in communities of color, burdening these communities with disparate levels of noise pollution
History of the Noise Control Act
The regulation of noise began in 1970 and has been evolving since through subsequent legislation
The Clean Air Act
The Environmental Protection Agency (EPA) has federal regulatory authority over noise pollution through the Clean Air Act2 (CAA), which was passed in 1970. Among other things, the CAA authorized the EPA to establish the Office of Noise Abatement and Control (ONAC) to conduct investigations and to study noise and its effect on the public health and welfare. The Noise Act was enacted to carry out this directive.
Noise Control Act of 1972
The Noise Act was designed primarily to regulate noise pollution with the intent of protecting human health and minimizing noise annoyance to the general public. It required the EPA to establish noise emission standards for new products that are major noise sources, such as those used in traffic and construction4 Working through ONAC, EPA staff developed model noise codes for local governments. With assistance from the EPA, local governments could then customize the model codes to address local noise pollution sources and concerns.5
The EPA also had enforcement authority to protect Americans;6 the Noise Act established a national policy to promote an environment for all Americans free from "noise that jeopardizes their health and welfare."7 The Act also established a means for effective coordination of federal research and activities in noise control authorized the establishment of federal noise emission standards for products distributed in commerce, and provided for informing the public about the noise emission and noise reduction characteristics of such products.8
Through ONAC, the EPA administrator was responsible for coordinating all federal noise control activities. However, in 1981 ONAC's funding was abruptly cut off, ending efforts to enforce the Noise Act and its policy nationally.9 Primary responsibility for addressing noise pollution was transferred to state and local governments, subject to a few exceptions. Since ONAC's closure, federal oversight of noise has been carried out by agencies whose core mandates do not address the needs of the local communities impacted by noise pollution.11 Claims of damage or nuisance caused by noise or other forms of pollution in industries governed by federal agencies such as railroads and aviation are preempted by federal law,12 and these agencies rarely, if ever, consider environmental justice when addressing their broader mandates.13
Although ONAC's enforcement capabilities were slashed along with funding cuts, the EPA remains legally responsible for enforcing regulations issued under the Noise Act. The Noise Act prohibits state and local governments from regulating noise sources in many situations. Thus, noise abatement programs across the country lie dormant.
Quiet Communities Act of 1978
Recognizing that noise from a variety of sources is a constant irritation that can lead to sleep loss, psychological and physiological damage, and work disruption, the Quiet Communities Act of 1978 (QCA) amended portions of the Noise Act to require coordination among federal agencies on noise control.14 The EPA continued to use minimal resources for limited enforcement of existing noise regulations; it mostly disseminated information created during ONAC's existence and commented on environmental impact statements. Significantly, the QCA authorized the EPA to provide grants to state and local governments for noise abatement.
Oil and Gas Development and Noise
Oil and gas development is generally defined as any field activity or operation associated with the exploration, production, processing, treatment operations, or transmission facilities of oil and gas, including activities necessary to prepare a site for drilling and for the movement and placement of drilling equipment.15
In the horizontal drilling process, a well is turned horizontally at depth. It is normally used to extract hydrocarbons from a source that runs horizontally, such as a layer of shale rock.16 Horizontal wells can hit targets, deliberately intersect fractures, construct relief wells, and stimulate reservoirs in ways that simply cannot be achieved with vertical wells.17 Arguably, horizontal drilling has played its most significant role in the development of natural gas shale plays.18 However, even with horizontal drilling, it is still challenging to recover gas from very tiny pore spaces in low permeability rock, and the incidents and risks that naturally occur when developing hydrocarbons, such as dry holes20 and structural integrity failures of the wellbore, remain.
With technological advances, fracking is now widely used with horizontal drilling to initiate oil and gas production in unconventional (low-permeability) oil and gas formations that were previously uneconomical to produce.22 Fracking is employed after a well is drilled and involves injecting large volumes of water, sand or other proppants, and specialized chemicals under enough pressure to fracture formations that hold oil or gas.23 The pressure from injection results in a network of interconnected fractures, held open by the proppant, which allow the oil or gas to flow freely out of the formation and into production casing.
In combination with horizontal drilling, the application of fracking in the extraction of natural gas from tight gas sands and unconventional shale formations has resulted in the marked expansion of estimated U.S. natural gas reserves and production in recent years.25 While this application creates flexibility for locating infrastructure in ways that can reduce environmental impacts, the rapidly increasing and geographically expanding use of this well stimulation process has raised concerns over its potential impacts on noise in these areas and has led to calls for greater oversight and more research on its potential impacts to surrounding communities.26
Environmental Impacts and Noise
With the advent of new technology in horizontal drilling and higher levels of production, production facilities now largely resemble industrial sites, with ongoing and continuous activity sometimes for months at a time.27 These activities...