The Shale Oil and Gas Revolution, Hydraulic Fracturing, and Water Contamination: A Regulatory Strategy
| Date | 01 August 2015 |
| Author |
45 ELR 10734 ENVIRONMENTAL LAW REPORTER 8-2015
The United States has surpassed Russia as the world’s
top natural gas producer and is on the threshold of
overtaking Saudi Arabia as the largest oil producer.
is “shale revolution” ha s created high-paying drill-
ing jobs, revived the petrochemicals industry as well as
other domestic manufacturing, improved our balance of
payments, and increased the competitiveness of the United
States in the global economy. By increasing the supply of
oil and gas, fracturing has signicantly reduced energy
prices, enhancing consumer purchasing power and caus-
ing a more robust economic recovery. Fracturing has also
reduced our reliance on energy imports and enhanced
our energy security. In addition, the shale revolution has
enabled the United States to reduce greenhouse gas emis-
sions over the pa st several years—the largest reduction
anywhere—by substituting natural gas for coal.
Fracturing is controversial. By reducing the price of
natural gas, it may undercut the edgling renewable
energy industry, at least in the near term. e fracturing
boom may also exacerbate air pollution, trac, and con-
gestion. e technology uses signicant amounts of water,
and some aspects of fracturing operations may induce
tremors and minor earthquakes. In a ll these regards, frac-
turing is not unique, since each of these risks arises in
conventional oil and gas drilling and, for that matter, in
other economic activity as well.
e most unique risk associated with fracturing is poten-
tial groundwater contamination. e uid used in fractur-
ing contains toxic chemicals. In a sense, this risk is also
A R T I C L E
The Shale Oil and Gas
Revolution, Hydraulic Fracturing,
and Water Contamination:
A Regulatory Strategy
by omas W. Merrill and David M. Schizer
omas W. Merrill is the Charles Evans Hughes Professor of Law, Columbia Law School. David M. Schizer is
the Dean Emeritus and Harvey R. Miller Professor of Law and Economics, Columbia Law School.
not new. Although fracturing in shale has developed in the
past decade, fracturing has been used in conventional drill-
ing for over 60 years, so that two million wells have been
“fracked” in the United States. ere is little evidence so
far that subterranean fracturing activity can directly con-
taminate groundwater. e layer of shale that is fractured
is usua lly thousands of feet below the water table, with a
buer of dense rock or clay in between. But other risks to
groundwater may prove to be more meaningful, includ-
ing surface spills of fracturing uid, improper handling of
waste products, and the migration of natural gas into water
wells. In response, we need eective regulation. Since frac-
turing in shale began fairly recently, the regime for dealing
with some of these risks is not yet fully developed.
is Article considers how to regulate this risk of water
contamination. e task entails a careful balance of com-
peting considerations. e shale boom oers enormous
benets and should be encouraged. At the same time, we
need regulation to ensure that it is safe, since water is
a vitally important resource. In addition, the public must
believe that shale drilling is safe. Otherwise, the shale
revolution could be vulnerable to regulatory overkill,
as media stories about aming water faucets, brown well
water, and sickly farm anima ls prompt widespread pub-
lic apprehension about water contamination. In order to
realize the potential benets of fracturing, we need regula-
tion that is carefully calibrated to minimize the real risks,
without deterring socially valuable drilling. is challenge
is all the more dicult because fracturing can poten-
tially contaminate water in several ways. Some are well
understood from decades of conventional oil and gas
production and c an be controlled with best practices
regulations. Others are highly speculative, may or may
not present rea l risks, and currently have no known solu-
tions. As a result, regulatory responses should be dynamic,
generating additional information about potential risks
and stimulating innovations to reduce these risks.
e full version of this Article was originally published as: omas
W. Merrill & David M. Schizer, e Shale Oil and Gas Revolution,
Hydraulic Fracturing, and Water Contamination: A Regulatory
Strategy, 98 M. L. R. 145 (2013). It has been excerpted and
updated with permission of Minnesota Law Review and omas W.
Merrill & David M. Schizer. Please see the full article for footnotes
and sources.
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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