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/M2DP-

FEX4] (select the state of Louisiana).

2. See A Look at the Hydraulic Fracturing Process and How it Works, ST I

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 Dav id 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 FR ACTURING FOR OIL AND GAS ON

DRINKING WATER RESOURCES [Draft] 5-72 (2015). As indicated, this report is a

draft, and expert co mmentary during the comment period may alter the co ntents

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).