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
 
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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, NATL 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 AMERICAS
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).

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