The Critical Role of Voluntary Standards and Certification in the Hydraulic Fracturing Framework

• Date: 01 August 2015

8-2015 NEWS & ANALYSIS 45 ELR 10741

C O M M E N T

The Critical Role of Voluntary

Standards and Certif‌ication in the

Hydraulic Fracturing Framework

by Susan Packard LeGros

Susan Packard LeGros is the President and Executive Director, Center for Sustainable Shale Development

(CSSD), Pittsburgh, Pennsylvania. e views and opinions expressed in this Comment are those of

the author and do not represent the views of CSSD or its participating organizations.

The a rticle by Professor Merrill and Dean Schizer1

sets out a reasoned structure for addressing the

risks to surface and groundwater resources associ-

ated with shale gas development. It suggests that, at a mini-

mum, where leading or best practice s have been identied

to address known risk s, these practices should be incor-

porated into regu lation. As a practical matter, this means

state regulation because it is at the state level where these

issues are primarily regulated. e article acknowledges

that there are potential risks for which best practice is not

known, and for that set of challenges the legal system must

formulate an evolving approach to addressing responsibil-

ity. It suggests application of well-established principles of

liability to address areas of risk not yet capable of being

distilled into regulation.

ere is a long time line involved in incorporating best

practices into multiple state regulations. It is not an exag-

geration to say that it could take decades accompanied by

inconsistency across jurisdictions for that to be accom-

plished. Yet, even as that eort progresses, the engineering

and operational practices associated with fracturing and

the scientic studies of impact are altering the informa-

tion on which best practices are based. Without disput-

ing the need for a strong and scientically based regulatory

program, there is a faster and more adaptive approach to

advance and incorporate best practices.

While the article acknowledges the existence of pro-

grams involving voluntary sta ndards, these programs have

particular application to the fast-changing subject of shale

gas. Voluntary standards can advance timely identica-

tion of best practices and likely represent the best way to

accomplish widespread adoption in a short period of time.

In addition, independent cer tication programs can sup-

port the integrity of best practices and voluntary sta ndards

1. omas M. Merrill & David M. Schizer, e Shale Oil and Gas Revolution,

Hydraulic Fracturing, and Water Contamination: A Regulatory Strategy, 98

M. L. R. 145 (2013).

by providing the public with information and transparency

that are necessary to engender a level of condence that the

standards are meaning ful.

Various articles have examined the contribution that

voluntary standards organizations can make at a time when

there has been no new environmental legislation since

1994 and any environmental regulation is almost inevita-

bly going to face a gauntlet of challenge.2 Given the current

landscape, the role of a voluntary sta ndards organization

becomes more critical and, arguably, more necessary.

Multiple organizations have adopted various versions

of best or recommended practices in shale gas extraction

and production.3 Some of these are aspirational, identify-

ing “relevant considerations” and guidelines; others are

prescriptive and include specic metrics.4 e experience

of the Center for Sustainable Shale Development (CSSD) is

instructive of the cha llenges such initiatives face as well as

the potential for impact. CSSD is a non-prot organization

formed in 2011 to respond to the growing need for respon-

sible approaches to the prospect of shale gas development in

the Appalachian Basin, which includes the Ma rcellus and

Utica Plays.

CSSD followed an initial eort led by a group of shale

operators, foundations, and regulators assembled by the

University of Pittsburgh ’s Institute on Politics that began

meeting in 2010 to explore issues related to Marcellus Shale

exploration. Seeking to elevate a nd inform the regional

energy dialogue, the Shale Gas Roundtable, as they named

2. See, e.g., Michael P. Vandenbergh, e Emergence of Private Environmental

Governance, 44 ELR 10125, 10131-32 (Feb. 2014); Michael P. Vanden-

bergh, Private Environmental Governance, 99 C L. R. 129, 131

(2013).

3. See, e.g., A P I S, http://www.api.

org/publications-standards-and-statistics/standards (last visited June 4,

2015).

4. Compare M S C, R P:

D  C 2 (Sept. 24, 2013), available at http://marcel-

luscoalition.org/category/library/recommendedpractices, with E

O, http://www.equitableorigin.com (last visited June 4, 2015).

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