Fracking: What is it Costing Us? – Pt. II
by Daniel Quandt
Fracking, a source of national controversy, has been widely publicized, and often vilified. Despite its frequent presence in the national news, it is argued that fracking should not lie solely in the domain of federal regulation.
Instead, local communities are trying to take the lead in restricting the practice.
In this three part series, the Georgetown International Environmental Law Review will explore the controversy surrounding hydraulic fracturing, a practice more commonly known as “fracking.” Part I provides an overview of the history of fracking, and the process involved in the technique. Part II addresses statutory regulation of the practice, at the federal, state, and local levels. Part III delves into the controversy, analyzing the legal challenges to fracking brought in In the Matter of Wallach v. Town of Dryden and Robinson Township v. Commonwealth of Pennsylvania.
Part II: Regulation of Fracking
Federal Regulation of Hydraulic Fracturing
Federal regulation of hydraulic fracturing to date has been minimal. There is no regulation of hydraulic fracturing under the Safe Drinking Water Act, no disclosure requirement for the chemicals used in hydraulic fracturing, and there have been few major federal studies to determine the safety of hydraulic fracturing.
The Safe Drinking Water Act, passed in 1974, gave the EPA authority to set maximum acceptable levels of contaminants in public water systems. One provision of the act authorizes the EPA to regulate injection wells, in order to protect underground sources of drinking water. However, in 2005, Congress amended the act to specifically exclude hydraulic fracturing from EPA regulation. This change, commonly known as the “Halliburton loophole,” was part of the Energy Policy Act of 2005, which also exempted hydraulic fracturing fluids from regulations under the Clean Air Act and Clean Water Act. These exemptions have been strongly criticized and there have been a number of proposed bills which would remove the exemptions and add further restrictions on hydraulic fracturing. However, to date, none of these proposals have made it through Congress and hydraulic fracturing remains exempt from many significant environmental regulations.
Additionally, there is no federal law requiring disclosure of the chemicals used in hydraulic fracturing fluids. The industry has created a disclosure database, but participation is voluntary and not all chemicals are fully disclosed.
“… there is no federal law requiring disclosure of the chemicals used in fracking fluids.”
The EPA has reviewed the safety of hydraulic fracturing on a number of occasions but most investigations have been incomplete and of limited scope. In fact, the EPA’s major 2004 study of the process involved no independent research, but merely the review of state agency reports. The EPA is currently conducting a comprehensive study of hydraulic fracturing, but, to date, federal research on the safety of hydraulic fracturing has been minimal.
The statutory exemptions for hydraulic fracturing and the lack of congressional or regulatory action on the issue mean that hydraulic fracturing faces less federal scrutiny than many other areas of environmental law.
State Bans on Hydraulic Fracturing
In the absence of strict federal regulation, some states have begun to take action with regard to hydraulic fracturing. To date, four states have banned hydraulic fracturing or placed moratoria on the process. However, in each case, the local conditions and the nature of the ban have created a somewhat unique situation in the state.
Vermont is the only state to adopt an outright ban of hydraulic fracturing. Passed on May 16, 2012, the ban specifically cites the fact that hydraulic fracturing uses potentially dangerous chemicals and that these chemicals could contaminate drinking water supplies. For that reason, the legislature adopted a complete ban on hydraulic fracturing. Unlike other moratoria, this ban does not have a set end date, but remains in effect until repealed. While the legislature did anticipate a possible future repeal and regulation of hydraulic fracturing, it noted that repeal should only happen if the state determined that hydraulic fracturing could be conducted without risk to groundwater.
“Vermont is the only state to adopt an outright fracking ban… its ban specifically cites the fact that fracking fluid uses potentially dangerous chemicals that could contaminate drinking water supplies.”
While Vermont’s ban on hydraulic fracturing is the most extensive, it has very little practical impact. So far, no deep earth natural gas deposits have yet been discovered in the state, so it is highly unlikely that any hydraulic fracturing would occur even if the ban were not in place.
In 2012, the New Jersey state legislature proposed an outright ban on hydraulic fracturing but, faced with strong opposition from Governor Christie, the legislature compromised with a one year moratorium that expired in 2013. Since the expiration, the legislature has subsequently attempted to pass permanent bans but has been unable to overcome Governor Christie’s opposition. In 2012, the legislature passed a bill that would have banned the treatment, discharge, disposal or storage of hydraulic fracturing waste in New Jersey, but that bill was also vetoed by the governor. That ban would have been particularly significant because New Jersey companies process and dispose of hydraulic fracturing wastewater from drilling sites in neighboring Pennsylvania.
“In 2012, the New Jersey state legislature proposed an outright ban on fracking, but, faced with strong opposition from Governor Christie, the legislature compromised… the legislature has subsequently attempted to pass permanent bans but has been unable to overcome Governor Christie’s opposition.”
Unlike Vermont, New Jersey does have some potential gas reserves that could be candidates for hydraulic fracturing. However, the drilling opportunities are limited and as of yet, no hydraulic fracturing has been conducted in the state. Nevertheless, the legislature continues to debate measure to permanently ban the process.
North Carolina never banned hydraulic fracturing directly, but oil and gas laws in the state dating back to 1945 have kept the process from being utilized in the state. In 2012, the state legislature overrode the governor’s veto and passed a law to legalize and regulate hydraulic fracturing in the state. The law placed a moratorium on the practice until 2015 to allow time to fully develop a regulatory scheme. Attempts to shorten this moratorium have failed, and the state is expected to begin allowing hydraulic fracturing next year. While the state is not particularly rich in shale gas, it does have significantly more reserves than either Vermont or New Jersey, and hydraulic fracturing is expected to begin once the moratorium ends.
“North Carolina is expected to begin allowing fracking in 2015… the state has significantly more reserves than either Vermont or New Jersey.”
The fourth state to adopt a ban or moratorium on hydraulic fracturing is New York, in a case that is significantly different from the other three. Unlike North Carolina, whose hydraulic fracturing ban was the result of old laws passed before the process was even developed, New York’s moratorium was passed in 2010. And unlike New Jersey and Vermont, which have minimal shale gas reserves, New York has extensive reserves, particularly in the southern tier of the state, along the Pennsylvania border.
The New York moratorium anticipated a short term prohibition of hydraulic fracturing to allow for further study, but subsequent inaction by the governor’s office has kept the moratorium in place indefinitely. In 2012, Governor Cuomo put forward a proposal to lift the moratorium, but only in an extremely limited manner. Under the proposal, hydraulic fracturing would be limited to just five counties along the Pennsylvania border where the shale formation is deeper and the risk of groundwater contamination would be lower. The practice would also be banned in Catskill Park and in local aquifers. But perhaps most importantly, hydraulic fracturing would only be allowed in communities which do not oppose the process, and local hydraulic fracturing bans would be respected. The plan has not yet been implemented and it is unclear when, and under what circumstances, the moratorium will be lifted.
“Under the New York proposal, fracking would only be allowed in communities which do not oppose the process, and local fracking bans would be respected.”
While Maryland does not have a legislative ban on hydraulic fracturing, Governor Martin O’Malley has placed a hold on all drilling applications until a three year study on the environmental impacts of hydraulic fracturing can be completed. The result is a de facto moratorium and it is unclear whether hydraulic fracturing will eventually be permitted in the state.
Other states have taken steps to regulate hydraulic fracturing which fall short of complete bans or moratoria. In 2013, the California legislature passed a bill requiring permits for hydraulic fracturing, disclosure of chemicals used in hydraulic fracturing, testing of nearby water wells, and a study on the environmental impacts of the process. The law, which goes into effect in 2015, is the most extensive state regulation of hydraulic fracturing to date and a compromise between the largely unregulated operations in most states and the outright bans in others.
While less extensive than California’s law, in 2010 the Wyoming Oil and Gas Conservation Commission implemented rules requiring disclosure of the chemicals found in hydraulic fracturing fluids.
Local Bans on Hydraulic Fracturing
In addition to state bans and moratoria on hydraulic fracturing, numerous municipalities have passed their own restrictions on hydraulic fracturing. To date, 412 municipalities have adopted some type of restriction on hydraulic fracturing. Most, but not all, of these restrictions are outright bans or moratoria. Local bans have been passed in twenty different states, including: California (12), Colorado (10), Hawaii (1), Illinois (7), Indiana (1), Iowa (1), Maryland (4), Michigan (18), Minnesota (2), New Jersey (32) New Mexico (3), New York (207), North Carolina (27), Ohio (37), Pennsylvania (17), Texas (4), Virginia (9), West Virginia (4), Wisconsin (5), and Wyoming (1).
Figure 1: Map of State and Local Hydraulic Fracturing Restrictions 
Though the bans are more common in some states than others—Michigan, New Jersey, North Carolina, Ohio, and Pennsylvania account for 131 of the 412 local bans—New York once again takes hydraulic fracturing restrictions to another level. Over half of the total bans in the entire nation are from New York, where the cause has gained significant local support and momentum. While some municipalities have voiced their support for hydraulic fracturing, bans are far more common in New York than anywhere else in the country. Because the statewide moratorium is still in place, the local restrictions have very little practical impact, but they do send a message of opposition and help ensure that hydraulic fracturing cannot begin in these communities if the state moratorium were to be lifted.
Figure 2: New York Municipal Restrictions on Hydraulic Fracturing
Part III will analyze the legal challenges to fracking brought in In the Matter of Wallach v. Town of Dryden and Robinson Township v. Commonwealth of Pennsylvania.
 Angela C. Cupas, The Not-So-Safe Drinking Water Act: Why We Must Regulate Hydraulic Fracturing at the Federal Level, 33 Wm. & Mary Envtl. L. & Pol’y Rev. 605-09 (2009).
 EPA’s Study of Hydraulic Fracturing and Its Potential Impact on Drinking Water Resources, United States Environmental Protection Agency, (retrieved online April 28, 2014, 2:00 pm) http://www2.epa.gov/hfstudy.
 Local Actions Against Fracking, Food & Water Watch, (retrieved online April 28, 2014, 2:00 pm) http://www.foodandwaterwatch.org/water/fracking/fracking-action-center/local-action-documents/.
 Bans on Horizontal Fracking, Greenly & Stone, (retrieved online April 28, 2014, 2:00 pm) http://www.greeleyandstone.com/images/Bans_on_Horizontal_Fracking.pdf.
 Vt. Stat. Ann. tit. 29, § 571 (West)
 Bans on Horizontal Fracking, supra note 50.
 Seth Augenstein, Fracking moratorium comes to an end in New Jersey, NJ.com, (retrieved online April 28, 2014, 2:00 pm) http://www.nj.com/news/index.ssf/2013/01/fracking_moratorium_comes_to_a.html.
 Bans on Horizontal Fracking, supra note 50.
 Augenstein, supra note 57.
 Nathan B. Atkinson and Mary Kathryn King, The State of Hydraulic Fracturing in North Carolina, JDSupra Busines Advisor, (retrieved online April 28, 2014, 2:00 pm), http://www.jdsupra.com/legalnews/the-state-of-hydraulic-fracturing-in-nor-94206/.
 Mireya Navarro, N.Y. Assembly Approves Fracking Moratorium, The New York Times, November 30, 2010, (retrieved online April 28, 2014, 2:00 pm) http://green.blogs.nytimes.com/2010/11/30/n-y-assembly-approves-fracking-moratorium/?_php=true&_type=blogs&scp=1&sq=approves%20fracking%20moratorium&st=Search&_r=0.
 Mireya Navarro, New York State Pans Health Review as it Weighs Gas Drilling, The New York Times, September 20, 2012, (retrieved online April 28, 2014, 2:00 pm) http://www.nytimes.com/2012/09/21/nyregion/new-york-states-decision-on-hydrofracking-will-await-health-review.html?_r=0.
 Danny Hakim, Cuomo Proposal Would Restrict Gas Drilling to a Struggling Area, The New York Times, June 13, 2012, (retrieved online April 28, 2014, 2:00 pm) http://www.nytimes.com/2012/06/14/nyregion/hydrofracking-under-cuomo-plan-would-be-restricted-to-a-few-counties.html.
 Tim Wheeler, Greens urge ‘fracking’ ban in Maryland, The Baltimore Sun, (retrieved online April 28, 2014, 2:00 pm) http://www.baltimoresun.com/features/green/blog/bal-bmg-legislative-fracking-ban-in-maryland-proposed-20120912,0,6855106.story
 Laura Olson and Don Thompson, California Lawmakers Approve Fracking Bill, NBC Bay Area, September 12, 2013, (retrieved online April 28, 2014, 2:00 pm) http://www.nbcbayarea.com/news/local/California-Lawmakers-Approve-Fracking-Bill–223542121.html.
 David O. Williams, Wyoming oil and gas regulators approve new rules for frack fluid disclosure, The Colorado Independent, June 8, 2010, (retrieved online April 28, 2014, 2:00 pm) http://www.coloradoindependent.com/55018/wyoming-oil-and-gas-regulators-approve-new-rules-for-frack-fluid-disclosure.
 Local Actions Against Fracking, supra note 49.