We Need a Fracking Baseline

• Author: Ryan King
• Position: J.D./D.C.L., 2017, Paul M. Hebert Law Center, Louisiana State University.
• Pages: 545-584

We Need a Fracking Baseline INTRODUCTION In more than 3,000 locations across Louisiana, 1 a pressurized concoction of water and select toxic and nontoxic chemicals has been, or will be, injected into the earth at up to 100 barrels per minute, with a pressure as high as 15,000 pounds per square inch (“psi”). 2 A mere 10 psi of pressure applied on the human body is equivalent to 294 mile-per-hour winds, exerting a force sufficient to demolish reinforced concrete buildings. 3 The Plutonium bomb detonated over Nagasaki created pressures nearing 15 psi at 0.5 miles from ground zero and caused total destruction within the radius. 4 Pressures nearly 1,000 times greater than that blast pressure are required to crack rock formations lying deep beneath Louisiana’s farms, communities, and cities. 5 Hydraulic fracturing, more commonly referred to as “fracking,” is a polarizing subject in politics, 6 the environmental debate, 7 and the media. 8 Copyright 2016, by RYAN KING. 1. Abraham Lustgarten & Krista Kjellerman Schmidt, State-by-State: Underground Injection Wells , PROPUBLICA (Sept. 20, 2012 12:00 PM), http://pro jects.propublica.org/graphics/underground-injection-wells [https://perma.cc/M2DPFEX4] (select the state of Louisiana). 2. See A Look at the Hydraulic Fracturing Process and How it Works , STI GROUP, http://setxind.com/upstream/the-hydraulic-fracking-process-and-how-it-works [https://perma.cc/5CA8-3XWA] (last visited Nov. 8, 2015). 3. R. KARL ZIPF, JR. & KENNETH L. CASHDOLLAR, NAT’L INST. FOR OCCUPATIONAL SAFETY AND HEALTH, EFFECTS OF BLAST PRESSURE ON STRUCTURES AND THE HUMAN BODY, http://www.cdc.gov/niosh/docket/archive /pdfs/NIOSH-125/125-ExplosionsandRefugeChambers.pdf [https://perma.cc/CV R7-MSHP]. 4. Frank von Hippel, The Myths of Edward Teller , BULL. ATOMIC SCI., Mar. 1983, at 6, 10. 5. See infra Part I.B. 6. President Barack Obama, Remarks on America’s Energy Security at Georgetown University (Mar. 30, 2011), https://www.whitehouse.gov/the-press-office/2011/03/30/remarks-president-americas-energy-security [https://perma.cc/J7A N-Q4U5] (“Recent innovations have given us the opportunity to tap large reserves— perhaps a century’s worth of reserves, a hundred years [sic] worth of reserves—in the shale under our feet. But just as is true in terms of us extracting oil from the ground, we’ve got to make sure that we’re extracting natural gas safely, without polluting our water supply.”). 7. GASLAND (HBO Documentary Films 2010). 8. Late Show with David Letterman (CBS television broadcast July 18, 2012) (host claiming that a number of states have been ruined by the “greedy oil and gas companies of this country” and the practice of fracking). 546 LOUISIANA LAW REVIEW [Vol. 77 Although experimental fracking was first used in 1947, 9 its use expanded significantly during the shale boom of the 2000s. 10 Hydraulic fracturing involves pumping numerous chemicals diluted by water, including some that are toxic, 11 into the ground at a pressure high enough to crack deep rock formations and increase oil and gas production. The use of fracturing has grown exponentially over the past decade; 12 accordingly, the number of lawsuits claiming contamination by hydraulic fracturing has increased. 13 Often, landowners can prove that oil and gas production chemicals have contaminated their water source; given the evidentiary requirements, however, they are routinely unable to prove that the fracturing operations on the land caused the contamination. 14 These landowners are required to demonstrate a causal link between the source of the contaminant and the 9. Carl T. Montgomery & Michael B. Smith, Hydraulic Fracturing: History of an Enduring Technology , J. PETROLEUM TECH., Dec. 2010, at 26, 27 (noting that the first successful commercial fracturing treatment was not performed until 1949). 10. See U.S. ENERGY INFO. ADMIN., DOE/EIA-038320, ANNUAL ENERGY OUTLOOK 2015, at 20 (2015) (“[T]otal dry natural gas production in the United States increased by 35% from 2005 to 2013 . . . .”). 11. U.S. ENVTL. PROT. AGENCY, EPA/600/R-15/047a, ASSESSMENT OF THE POTENTIAL IMPACTS OF HYDRAULIC FRACTURING FOR OIL AND GAS ON DRINKING WATER RESOURCES [Draft] 5-72 (2015). As indicated, this report is a draft, and expert commentary during the comment period may alter the contents of the original. 12. AM. PETROLEUM INST., HYDRAULIC FRACTURING: UNLOCKING AMERICA’S NATURAL GAS RESOURCES 1 (2014), http://www.api.org/~/media/Files/Policy /Exploration/HYDRAULIC_FRACTURING_PRIMER.ashx [https://perma.cc/AU2 A-ZJEJ] (before the shale boom, natural gas production from shale constituted roughly 2% of the United States output; by the end of 2015 it will reach 37%, and by 2035 it is projected to reach 75%); see also MOHSEN BONAKDARPOUR ET AL . , IHS GLOBAL INSIGHT, INC., THE ECONOMIC AND EMPLOYMENT CONTRIBUTIONS OF SHALE GAS IN THE UNITED STATES 5 (2011), http://anga.us/media/con tent/F7D1750E-9C1E-E786-674372E5D5E98A40/files/shale-gas-economic-impact-dec-2011.pdf [https://perma.cc/VXC4-4F6C]. 13. See BARCLAY NICHOLSON, NORTON ROSE FULBRIGHT ANALYSIS OF LITIGATION INVOLVING SHALE & HYDRAULIC FRACTURING 1 (2014), http://www.nortonrosefulbright.com/files/20140101-analysis-of-litigation-involving-shale-hydraulic-fracturing-104256.pdf [https://perma.cc/959K-7XKG]; see also Blake Watson, Hydraulic Fracturing Tort Litigation Summary , UNIV. OF DAYTON SCH. OF L., http://www.udayton.edu/directory/law/documents/watson/blake_watson _hydraulic_fracturing_primer.pdf [https://perma.cc/9K5R-4CG9] (last updated July 23, 2016) (noting that the majority of the 99 contamination cases listed were filed within the past five years). 14. See Ely v. Cabot Oil & Gas Corp., 38 F. Supp. 3d 518 (M.D. Pa. 2014); Anthony v. Chevron USA, Inc., 284 F.3d 578, 586–87 (5th Cir. 2002). 2016] COMMENT 547 actual contamination. 15 Unfortunately, both are usually thousands of feet or miles beneath the earth’s surface, rendering the procurement of this evidence impossible. 16 Furthermore, years may pass before the contamination actually occurs. 17 Consequently, obtaining equitable relief in cases in which contamination has already been proven is highly improbable, if not impossible. 18 Hydraulic fracturing has not been proven to be inherently dangerous; this factor should be considered prior to the implementation of any new regulations, as the utility of the practice exceeds its proven risk. 19 However, until the impact on finite groundwater resources is conclusively determined, the acquisition of information and evidence should be improved to develop a full record on the subject matter, while simultaneously promoting the industry and protecting landowners. The federal government remains detached from the issue, as Congress has permitted exemptions for the practice in both of the major pieces of legislation intended to regulate the industry and protect the nations water, the Clean Water Act and the Safe Drinking Water Act. 20 The Environmental Protection Agency (“EPA”) conducted a five-year study that resulted in inconclusive outcomes, partially because of the lack of a requirement for operators to perform baseline testing. 21 Due to the lack of federal guidance and sufficient data acquisition, Louisiana must take steps to protect its landowners, drinking water resources, and the industries essential to its economy. The first step should be requiring hydraulic fracturing operators to perform baseline water testing prior to any hydraulic injections. This data will aid injured plaintiffs in their pursuit for a factual link to contamination. It will aid the industry by possibly providing evidence that fracturing is not the cause of contamination. Finally, it will aid the state’s economy by promoting best practices and easing public concern. Additionally, once a comprehensive 15. See Anthony , 284 F.3d 578. 16. AM. PETROLEUM INST., supra note 12, at 7. 17. U.S. ENVTL. PROT. AGENCY, supra note 11, at 6-56–6-57. 18. See infra Part II.A.1. 19. See infra Part I.C. But see infra Part I.B; U.S. ENVTL. PROT. AGENCY, supra note 11, at 10–20 (finding that contamination has occurred through multiple avenues in a relatively small number of cases, but noting that the number of cases might be understated because of insufficient pre- and post-fracturing data of the groundwater resources). 20. See infra Part III.A. 21. U.S. ENVTL. PROT. AGENCY, supra note 11, at ES-22 (noting that one of the limitations of the reported data was the lack of pre-fracturing local water quality data). 548 LOUISIANA LAW REVIEW [Vol. 77 data set is established, the industry and regulatory agencies will be better able to determine when and where contamination is or is not occurring. Agencies can then implement or remove regulations to make the process safer and more efficient. This Comment does not argue that hydraulic fracturing is inherently dangerous, nor that its use should be restricted, but instead discusses several issues that have arisen from the practice, including the potential for increased risk as the shale boom continues. It argues that Louisiana should apply a mixed regulatory strategy beginning with requiring baseline water testing and promoting best-practices regulations as standards develop or when issues arise, which will protect both the industry and the landowners. Part I explains hydraulic fracturing and contamination while also demonstrating that hydraulic fracturing is essential to Louisiana and the United States. Part II discusses the theories of liability available to injured landowners and the evidentiary requirements’ prevention of an equitable resolution, regardless of whether strict liability is imposed. Part III illustrates Congress’s refusal to regulate the industry and demonstrates several states’ compensation for this lack of regulation, whereby states enact their own regulations. Part IV examines the issues from the perspectives of the landowner, the operator, and the State to develop a solution beneficial to...