New Fracking Rules Unveiled for Federal Lands

On March 26, 2015, the Department of the Interior Bureau of Land Management (“BLM”) published its long-awaited final rule regarding hydraulic fracturing (“fracking”) in the Federal Register, which becomes effective 90 days after publication, on June 24, 2015.  The new rules mark the first update to federal fracking standards in more than 30 years.  The new rules are effectively the first rules that squarely address horizontal hydraulic fracturing, as the technology did not exist in present form when the old rules were enacted.


Fracking is an increasingly common, and politically polarizing, method for extracting fossil fuels.  At bottom, fracking is a drilling technique used to recover gas and oil from shale rock.  The process involves drilling into the earth and then injecting a high-pressured cocktail of water, sand, and chemicals down and eventually across horizontally drilled wells.  The pressurized liquid fractures the subsurface rock, which consequently releases trapped oil and gas that is eventually pumped back to the surface.

Fracking is credited with advancing the recent U.S. “energy renaissance,” which has reduced oil prices to a two-decade low and allowed the U.S. to double its oil production from 2008 to 2015.  In fact, the U.S. is now poised to become the world’s largest producer of oil and gas.  Fracking is not without harsh and staunch critics, however, and the process has raised concerns among some regarding alleged contamination to groundwater, waste disposal, and the public’s exposure to toxic chemicals.  Ardent opponents also point to air emissions and climate change, excessive water consumption, and even the increased risk of earthquakes.  A recent Gallup poll suggests that Americans are equally divided on the use of fracking as a means of increasing natural gas and oil production in the U.S.

These concerns prompted several years of debate, culminating in the BLM’s final rules.  The BLM intends
for the new rules to “serve[] as a much-needed complement to existing regulations designed to ensure the environmentally responsible development of oil and gas resources on Federal and Indian lands, which were finalized nearly thirty years ago, in light of the increasing use and complexity of hydraulic fracturing coupled with advanced horizontal drilling technology.”  The BLM’s final rules are the first set in what is expected to be a series of federal rules governing fracking.

In sum, the new standards impose numerous new requirements on companies.  The hallmarks include:

  • Companies must publicly disclose additive chemicals used in the fracking process on FracFocus, which is an industry-run website, within 30 days of completing fracking operations.  This requirement, however, has already been adopted by many states that have examined the issue.
  • Companies must allow government employees to inspect and validate (1) the safety of the concrete barriers lining fracking wells, and (2) chemicals being stored at the fracking site.
  • Companies must adhere to new requirements and specifications or how to safely dispose of contaminated water.
  • Companies must submit detailed information about every proposed operation, including the location of faults and fractures, the depths of usable water, and the depth of estimated volume of fluid to be used.
  • Companies must submit detailed information about the geology, depth, and locations of already exiting wells.

Despite what many perceive as laudable objectives, the fear among oil and gas companies is that the BLM’s new rules will drastically increase production costs (thereby adversely affecting oil prices), as well as stifle energy development.  Indeed, the American Petroleum Institute (“API”), relying on research and consulting firm Advanced Resources International, analyzed a draft of the final rule and “estimate[d] that the total costs associated with this rule could range from $30 million per year to $2.7 billion per year.”  The API suggests that the requirement of “cement evaluation logs” (“CELs”) on surface and intermediate casing before beginning the fracking process as a source of added cost.  The Western Energy Alliance (“WEA”)—whose members include ConocoPhillips, Halcon Resources Corp. and QEP Resources Inc.—relying on an economic research firm’s analysis, provided a more focused prediction that the added cost of compliance would be $97,000 per new well, or $345.592 million annually.  The WEA warns that considerable costs will emanate from initial delay costs, administrative costs, enhanced casing costs, cement log costs for “well types,” and cement log delay costs.  Although energy trade associations are still assessing the precise costs of the new rules, many expect that the associated costs will greatly exceed the BLM’s rather conservative estimate of $11,400 per well, or $32 million annually.

The new rules have already prompted several lawsuits challenging their legality, characterizing them as “arbitrary and unnecessary burdens” that are “a reaction to unsubstantiated concerns.”  One lawsuit was filed by the Independent Petroleum Association of American and the Western Energy Alliance.  Another was filed by the State of Wyoming.  These parties are significant stakeholders that have a sizeable presence on federal lands, and consequently they have a lot to lose with the increased cost of compliance with the new rules.  Even for those entities intent on compliance, the new rules are lengthy and complicated, and will require legal consultation with attorneys specializing in the area.

As a final and important note, the rules apply to fracking on federal lands, which accounts for only approximately 10 percent of all fracking nationwide and 5 percent of all domestic oil production.  The states have jurisdiction over fracking on state-owned and private land, and thus the BLM’s new rules do not apply.  Accordingly, these rules do not affect the vast majority of U.S. fracking operations.  Nonetheless, the BLM hopes that its new rules will eventually serve as a model and legislative benchmark for states seeking to regulate the fracking industry within their borders.

U.S. Department of Energy Study Says Fracking Does Not Cause Water Pollution

On September 15, 2014, the U.S. Department of Energy’s National Energy Technology Laboratory (DOE) released a report of a major federal study titled “An Evaluation of Fracture Growth and Gas/Fluid Migration as Horizontal Marcellus Shale Gas Wells Are Hydraulically Fractured in Greene County, Pennsylvania.”  The study concluded that there was no evidence that hydraulic fracturing (fracking) caused the contamination of drinking water at a study location in Pennsylvania.

Fracking is a method of extracting oil and gas deposits that are inaccessible by conventional drilling. Fracking uses millions of gallons of high-pressure water mixed with sand and chemicals to break apart rocks rich in oil and gas. Fracking has become increasingly common over the past decade and is largely responsible for the current energy boom in the United States, but the practice has led to concerns regarding potential groundwater contamination.

ETT BLOG_frackingAfter studying one particular site in western Pennsylvania for 18 months, the DOE determined that neither fracking chemicals nor brine water from the gas drilling process had contaminated area drinking water.  The report said that the chemicals used in fracking remained approximately 5,000 feet below drinking water supplies.  The study marked the first occasion where a company agreed to have its fracking operations independently monitored.

The DOE acknowledged, however, that fracking at other sites may have different results due to variation in geology or drilling methods.  The site studied by the DOE was limited to six wells at one location in western Pennsylvania.  It should be noted that Pennsylvania regulators have noted instances where surface spills of chemicals or wastewater damaged drinking water supplies.

At the same time the DOE study was released, scientists from Duke, Ohio State, Stanford, Dartmouth and the University of Rochester released a study in Proceedings of the National Academy of Sciences titled “Noble gases identify the mechanisms of fugitive gas contamination in drinking-water wells overlying the Marcellus and Barnett Shales.”  The study, which took place in the Marcellus Shale in Pennsylvania and in the Barnett Shale in Texas, concluded that defective construction of the wells caused pollution, but not the fracking process itself.  This study focused on 113 drinking water wells in Pennsylvania and 20 wells in Texas that were known to have elevated levels of methane.  An analysis of gas geochemistry data implicated leaks through annulus cement in four cases, production casing in three cases and underground well failure in one case.  The study authors concluded that gas migration induced by fracking deep underground was not found to be a cause of contamination.

These studies suggest that the use of fracking as a method of extracting oil and gas deposits is not responsible for groundwater contamination.  In those rare instances where groundwater contamination occurs, it is more likely due to faulty well construction rather than gas migration induced by fracking, which takes place far below any drinking water aquifer.  The concerns identified in the universities’ study are not unique to fracking, but to oil and gas exploration generally.

New York High Court Affirms Municipal Fracking Bans

The New York Court of Appeals, in a landmark ruling, recently upheld bans imposed by municipalities on oil and gas production activities, including fracking, in their communities. On June 30, in Wallach v. Town of Dryden, the court affirmed a ruling by the Appellate Division, Third Department, allowing the towns of Middlefield and Dryden to forbid gas drilling within their borders. This decision came about despite the industry’s argument that only the state could regulate gas drilling.

According to the Court of Appeals, the Oil, Gas and Solution Mining Law (OGSML) did not preempt the towns’ zoning laws prohibiting oil and gas production activities or natural gas exploration. Because there was no legislative intent evidenced within OGSML’s plain language, overarching statutory structure, or legislative history, much less any “clear expression,” requiring preemption of local land use regulations, the court held that the towns acted within their “home rule authority.” New York courts have traditionally given deference to a local municipality’s zoning authority.

The Wallach court explained that the text of a statutory provision is the clearest indicator of legislative intent.  The language of OGSML’s supersession clause states that it “shall supersede all local laws or ordinances relating to the regulation of the oil, gas, and solution mining industries.”  The court found that the clause did not preempt zoning ordinances that restrict or prohibit certain land uses within a town’s boundaries. Instead, the statute only preempts local laws that purport to regulate actual operations of oil and gas activities, which was not at issue here.

Further, the legislative history of OGSML did not evidence an intention to preempt the towns’ zoning laws. There was no mention of zoning or any intent to take away local land use powers. Instead, the legislative history was designed to prevent wasteful oil and gas practices by creating uniform statewide regulations.

Shale gas development using high-volume horizontal hydraulic fracturing, commonly referred to as hydrofracking, remains a controversial issue in New York as elsewhere. Fracking can allow for the extraction of enormous amounts of previously unavailable natural gas, but the practice has become subject to intense scrutiny by environmental advocates and upstate rural communities.

Hydrofracking involves drilling a vertical well thousands of feet into the ground to reach a shale rock formation. Once shale is found, the well is turned horizontally to stay within the formation and a high-pressure mixture of water, chemicals, and sand is injected into the wellbore. The procedure creates small cracks in the shale, “fractures,” which release trapped oil or natural gas.

Natural gas offers enormous benefits including the reduction of greenhouse gases, decreased reliance on foreign oil suppliers, and an economic boon to New York upstate communities. However, environmentalists continue to be concerned that fracking may contaminate groundwater and create air pollution. At the same time, some local communities fear that natural gas exploration will increase the burdens on municipal resources such as police and health care, and cause undesirable shifts in local economies and demographics. While some states have embraced fracking, Gov. Andrew Cuomo and many of his constituents have been hesitant to permit natural gas exploration.

There has been a moratorium on fracking in New York since 2008. While the Department of Environmental Conservation is creating a regulatory framework for hydrofracking in New York in the event the moratorium is lifted, the governor is anticipating the results of a long-awaited health study that the Department of Health commissioned in 2012.

On June 16, 2014, New York’s General Assembly passed a three-year moratorium on fracking to allow for more time to fully study environmental impacts. Full passage of the moratorium now depends on the New York State Senate and ultimately, Cuomo. Thus, even with the issuance of Wallach, affirming the rights of municipalities to prohibit fracking, this decision does not change the existing status quo in New York. The larger fate of hydrofracking in New York ultimately will be left in the hands of the executive and legislative branches of government, which must decide whether to allow New York to engage in natural gas exploration – at least where not prohibited by local zoning laws.


Alexana Gaspari is a law clerk in Gordon & Rees’s New York office.

EPA’s Step Toward Mandating Disclosure of Chemicals Used for Fracking

On May 9, 2014, the Environmental Protection Agency (EPA) issued an Advanced Notice of Proposed Rulemaking seeking public comment on the “types of chemical information that could be reported and disclosed under the Toxic Substances Control Act and the approaches to obtaining this information for chemicals used in hydraulic fracturing activities.”

EPA also is requesting input on “incentives and recognition programs that could support the development and use of safer chemicals in hydraulic fracturing” – also known as fracking.

EPA anticipates that the notice, which will include the due date for public comments, will publish in the Federal Register by the week of May 19.  The comment period closes 90 days after publication in the Federal Register on August 17, 2014.

Fracking Verdict May Spur More Lawsuits

“Rise early, work hard, strike oil.” The late oil baron J. Paul Getty’s formula for success may be a new rally cry for the plaintiffs’ bar. On Tuesday, April 24, a Texas jury awarded $2.95 million to a family in one of the first trials alleging that hydraulic fracturing (commonly known as “fracking”) caused severe health problems.

Plaintiffs testified that an environmental doctor told them they had neurotoxins in their blood that matched chemicals used in natural gas activities. The family experienced chronic migraines, rashes, dizziness, nausea and chronic nosebleeds — including an incident when their daughter awoke in the middle of the night covered in blood, according to plaintiffs’ attorneys in Parr v. Aruba Petroleum, Inc. The size of the verdict (and that it results from air pollution, as opposed to the more common assertion of groundwater pollution) may spur similar cases and exert upward pressure on settlement demands throughout the country.

Fracking, a process performed by drilling thousands of feet and releasing a fracking fluid into the rock layer, allows natural gas to escape and be transported up into a well storage. Fracking sites are huge operations with construction and drilling equipment, retention ponds and storage tanks for chemicals, water and hydrocarbons. The drilling sites operate 24 hours a day because they support well bores that must be continually fracked to promote the flow of oil and gas from tight formations. Fracking has made natural gas extraordinarily cheap in America. In Asia, it sells for more than triple the price; in Europe, double.

Despite fracking’s perspicuous opportunity for arbitrage, environmentalists only recognize fracking’s potential impact on local air and water pollution due to leaks of benzene, methane and other hydrocarbons. Further, much to the chagrin of fracking’s opponents, many state regulations allow fracking operations to be located in proximity to homes and schools. In several jurisdictions, environmentalists have pressured lawmakers to tighten fracking regulations, noting in Illinois, a large loophole where energy companies may bypass regulations by instituting modified technologies, such as nonwater-based fracking.

The Parr lawsuit, pitting Barnett Shale landowners against natural gas producer Aruba Petroleum, Inc., is one of the first cases in the nation to reach a jury on claims that air emissions from nearby drilling operations caused health problems. The plaintiffs sought $9 million in damages and alleged that 22 wells operated within two miles of their land. The case, a deviation from the common order because it made it to trial and because of the fact-specific nature of nuisance claims (including serious causation questions), has some anticipating a reversal on appeal.

Yet the jury’s verdict — finding Aruba intentionally created a private nuisance and is liable for the plaintiffs’ physical and mental pain and suffering as well as a diminution of their property value — may hearten plaintiffs’ attorneys with similar litigation and add fuel to settlement negotiations in other fracking and air emissions cases. The plaintiffs’ bar will intently watch the appeal process in Parr, and so too should energy companies.  While many thought the anti-fracking movement would be “the next big thing” and generate a multitude of litigation across the country, few cases have reached the courts. The redolence of fracking money from this verdict may change that, with a gas explosion from the plaintiff’s bar in the near future.

Environmentalists Support Fracking But With Important Reservations

It is necessary that natural gas be substituted for coal and oil as an energy source if the world is to have any chance of avoiding runaway greenhouse gas (“GHG”) emissions, particularly from the developing world.

At present, it is unrealistic to expect renewable energy sources (solar, wind and geothermal) to serve as a foundation for national energy policy. In the United States, even with the best use of conservation, energy efficiency and renewables, the combination of these various “alternatives” will not become a substitute for fossil fuels for a very long time.

In a thoughtful article in the New York Law Journal on January 2, 2014, titled  “Countries Approach Fracking With Interest and Caution,” Stephen L. Kass, makes the case that natural gas from hydraulic fracturing should be an important component of a comprehensive energy strategy, both in the United States and abroad.  According to Kass, fracking is attractive to: (1) economists seeking to stimulate development; (2) national security officials seeking independence from unreliable oil suppliers; and (3) environmentalists who seek to avoid runaway GHG emissions, particularly from developing countries.

In the United States, fracking now accounts for a staggering 25% of domestic natural gas (a figure expected to rise to 50% by 2035). In addition to lowering energy costs, according to Kass, fracking is widely credited with reducing U.S. “carbon intensity” and GHG emissions.

Fracking places the environmental community between the proverbial rock and a hard place. On the one hand, environmentalists recognize that fracking offers enormous environmental benefits in terms of reduced GHGs. On the other hand, environmentalists continue to be concerned that fracking fluids may contaminate precious water sheds.

Therefore, it is the goal of the environmental community that the amount of water used in fracking be minimized through recycling, that double-walled drill shafts and other controls be effectively utilized to minimize fugitive methane releases, and that waste fluids be adequately treated on-site before being recycled, discharged to water treatment plants or re-injected. The oil and gas industry’s refusal to disclose the composition of its fracking fluids has become an unnecessary distraction from these key environmental concerns.

In the long run, environmental concerns are likely to be largely addressed by increased and more effective regulation and by self-policing by industry. From the standpoint of providing an inexpensive fuel to tens of millions of American homeowners, the stakes are simply too high for environmentalists, who support fracking with these reservations, to concede defeat. As industry continues to demonstrate that fracking can be performed in a safe and environmentally sound manner, opposition to the practice will most likely diminish.

NYS Hydrofracking Moratorium: No End In Sight

The NYLCV’s eco politics daily reported this morning that Governor Andrew Cuomo will not reach a decision on whether to allow fracking in New York until the NYS Department of Health releases its long-awaited study concerning fracking’s health effects.

On Monday, Gov. Cuomo spoke with Susan Arbetter of NCYN’s Program, "The Capitol Pressroom".  He acknowledged that while fracking could have economic benefits for upstate New York, the accompanying health and environmental impacts were not insignificant and he was not prepared to condemn or condone the practice before knowing the full consequences of such action.

At the same time, the DEC is in the process of collecting information on a comprehensive exploration of environmental impacts for which fracking opponents and supporters have been anxiously.  The five year moratorium on hydrofracking in New York is a hot button issue in New York’s gas-rich Southern Tier, where the economy could use the boost that natural gas exploration could provide. 

According to Debbie Preston, Broome County Executive, "We won’t be silenced and we won’t stop fighting for our future until we are start drilling here in New York state”.  In an article by Elyse Michalonis, dated July 23, 2013, appearing in YNN, state legislators in the area compare the boom economy in neighboring Pennsylvannia with the absence of growth in New York.   "If you go down to Pennsylvania, travel around, it’s a booming economy, things are happening. There’s new roads and buildings. They’re thriving. We’ve got people in this area driving there, because that’s the only place to get a job,” said Assemblyman Clifford Crouch.


Zoning Ban On Fracking: OK in NY, But Maybe Not OK In PA

Local bans on hydraulic fracturing continue to be fiercely debated as the use of hydraulic fracturing for oil and gas development of shale reserves increasingly gains in popularity. Grassroots opponents of  hydraulic fracturing increasingly stress the non-environmental social impacts that have become associated with hydraulic fracturing in certain rural communities. 

On May 2, 2013, two Appellate Division cases in New York came down that upheld the use of local zoning ordinances to ban fracking. Unless the New York Court of Appeals takes a different path, the law established in these cases – Norse Energy Corp. v. Town of Dryden, No. 515227, 2013 N.Y. Slip OP. 03145 (3d Dept. 5/2/13)and Cooperstown Holstein Corp. v. Town of Middlefield, No. 515498, 2013 Slip Op. 03148 ((3d Dept. 5/2/13), will allow towns to use zoning to ban fracking in their communities.

An excellent discussion of the background of these New York cases can be found in WestLaw Journal: Environmental (Volume 33, Issue 26/July 9, 2013) titled "Will fracking become the rule of local zoning control in New York state?", authored by  Eileen Millett, an environmental lawyer at Epstein Becker & Green and a former a former Visiting Professor of Law, who taught courses at Syracuse University School of Law in environmental and regulatory law, and  is an expert on environmental/energy regulatory compliance.

According to Millett, the law may now be settled on this issue in New York, but the same issue is creating angst for stakeholders in Pennsylvania. Pennsylvania Act 13, enacted in 2012, contained a section restricting the ability of municipalities from controlling the location of gas drilling within their boundaries.

Pennsylvanians now await a decision from the Supreme Court, in the wake of a Commonwealth Court decision, which  found that that Act 13 cannot restrict zoning. The state had argued in that case that zoning provisions in Act 13 do not pre-empt local governments from enacting zoning ordinances so long as they did not place any restrictions on the location of oil and gas drilling operations in conflict with Act 13. Robinson Township et al. v. Commonwealth of Pennsylvania, No. 284 MD 2012.

Citing the need for statewide uniformity to ensure the most efficient development of oil and gas resources, and consistent environmental protections for all residents, the Pennsylvania legislature also declared that all local ordinances — including local zoning rules — must allow for reasonable development of oil and gas resources consistent with the new legislation. Stay tuned. 

Once the moratorium on hydraulic fracturing is lifted in New York (and it most likely will be lifted sooner or later), there may be a patchwork of communities throughout the State which have banned fracking.  Nevertheless, there will still be many communities in New York where the activity will be welcomed.

Gas Drillers To Disclose Fracking Chemicals

The Wall Street Journal reported today that Texas Governor Rick Perry signed into law Friday a bill that will require companies to make public the chemicals they use on every hydraulic fracturing job in the state.  Texas’ law is significant because the oil and gas drilling industry, which is powerful in Texas, vocally supported the measure.  Opponents to fracking in the Marcellus Shale region of  New York and Pennsylvannia have long accused the drilling companies of secrecy for failing to disclose the chemicals used in hydrofracking.  Widespread support for this measure, and similar measures in other states, provide some indication of just how untenable the industry’s former stance had been.  Fracking involves blasting millions of gallons of water, sand and chemicals into the ground to break up oil and gas-bearing rocks.  Environmentalists and residents in drilling areas fear that the fracking process may result in chemical contamination of drinking water aquifers.  Until now, industry’s argument that fracking is safe has been hamstrung by drillers’ refusal to disclose the chemicals used.  Going forward, the fracking debate can now refocus on the important issues, such as the likelihood that faulty well construction may result in contamination of an aquifer.  According to industry spokespersons, tens of thousands of wells have been drilled with relatively few problems.  In those rare instances where a problem has been reported, the industry believes that the problem is most likely attributable to an improperly constructed well.  Earlier this year, some of the larger gas producers, notably Chesapeake, Chevron and BP, announced that they would voluntarily begin to publicize the chemicals they use online at This website is a joint project of the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission.

Gas Exploration In Marcellus Shale: Water Quality and Water Usage Issues

Eileen Millett is Counsel to the law firm of Epstein Becker & Green, P.C. where she represents clients on environmental matters, including solid and hazardous waste and the Clean Water Act,  and counsels clients on general regulatory compliance questions, including issues related to toxic waste and water quality, permitting, emerging obligations under impending climate regulations and other federal, state, and local environmental statutes and regulations.  Ms. Millett previously served as Assistant Counsel with the Hazardous Waste Task Force at NYDEC and as General Counsel to the Interstate Environmental Commission, a tri-state water and air quality enforcement authority, where she conducted and managed litigation to control and abate water pollution and ensure adequate water and sewer infrastructure.  She teaches environmental law at the Syracuse University College of Law. 

Marcellus Shale is shale formation that extends deeply underground from Ohio and West Virginia, northeast into Pennsylvania, and into New York’s southern tier. Although the shale is exposed in some locations in New York, it descends to a depth of as much as 7,000 feet or more below the ground surface along New York’s Pennsylvania border.  Estimates project that this shale formation contains enough natural gas to fuel New York State’s energy needs for decades to come. Some geologists have estimated that the entire Marcellus Shale formation could contain between 168 trillion to over 500 trillion cubic feet of natural gas throughout its entire extent. New York uses approximately 1.1 trillion cubic feet of natural gas a year. How much gas will be recoverable from the shale is not yet known. Nonetheless, natural gas has emerged as an energy source capable of contributing to alleviating some of the United States’ dependence on foreign oil. Thus, the ability to effectively capture natural gas in the Marcellus shale efficiently and in an environmentally sound manner is of the utmost importance.

It is the process associated with the recovery of natural gas from the shale and the attendant interstate environmental impacts that have become the subject of much debate. The natural gas is both very deeply and very tightly embedded in the shale. However, of late, new technological developments with extraction, notably hydraulic fracturing, have demonstrated promising results.   Interest has naturally advanced because of the shale’s proximity to high demand markets and the development of the Millennium Pipeline. This interest, however, has not been without question about the effects on the surrounding communities and the environment. The concerns raised have been with the technology, horizontal drilling and hydraulic fracturing.

Horizontal drilling is one of the techniques used in the process of reaching the natural gas. One drills down vertically first and then special tools are used to turn the well horizontally. This type of drilling has two advantages, one, is the production of more gas from a single well, since perpendicular penetration of the vertical rock fractures allow engineers to drill more area in the zone of gas producing rock, and, two, many more horizontal wells may be drilled from the same surface location, thus, disturbing less ground surface as compared to using vertically wells. Both, horizontal drilling and hydraulic fracturing technologies have enhanced the cost-efficient recovery of natural gas contained within Marcellus shale. The NYDEC website provides a description of the drilling technology.

Hydraulic fracturing is the high pressure pumping of fluid with a material adept at propping, such as sand, to both expand or fracture the rock to facilitate recovery of the gas, and at the same time, allow the space that’s been expanded to stay open long enough to allow the maximum amount of gas to flow into the well. Unlike of types of drilling, no blasting is used. The hydraulic fracturing process is especially helpful for the type of “tight” rock formation found in rocks like shale. Water and fine sand are pumped through the rock with pressure, fracturing the shale and leaving the grains propping up the rock so that gas escapes. Extracting gas from shale is not as simple as this process may sound. Each shale rock formation is different, thus, to achieve the optimal gas production, could require one to change the amount and mix of fluid and sand. The results cannot be guaranteed and experience and experimentation is the normal way of operating.  

Concerns have been raised that the fracking technique could contaminate groundwater, and that its use should be closely regulated. Most fractured wells are thousands of feet below any potable water zone, thus concerns about groundwater while understandable may be misplaced.  Notable among the concerns is the volume of water required for the process, the chemical composition of the fluid used and the challenges posed by the proper disposal of those fluids. First, Hydraulic fracturing requires the use of large volumes of water to fracture the rocks and produce gas, with each well using up to a million gallons of water. Secondly, the fracturing fluid contains compounds added to it to make the process more effective.   These fluids could include chemicals to reduce friction, inhibit the growth of bacteria, assist in carrying the propping agents into fractured rock, substances to ensure that the propping agent stays in the fracture and agents to prevent or retard corrosion of pipes in the wells. Thirdly, fluid removed from the wells is required to be handled, transported and disposed of properly.


Among the many issues of concern for the environment in the water quality context are water usage, effluent content, and disposal. Among the most pressing of these issues are the following: the amount of water usage, the need to withdraw surface water, what authority controls and regulates the withdrawal of public drinking water, what authority regulates the withdrawal of surface water for commercial and industrial use, the management of the water withdrawals outside of the authority of water quality commissions (the Delaware River Basin Commission (DRBC), the Susquehanna River Basin Commission (SRBC) and the Great Lakes Commission (GLC)), what approved pretreatment programs exist, and the adequacy, the capacity and the ability of treatment facilities to properly treat and dispose of water. The challenge for attorneys and for courts will arise as communities grapple with:

● Managing the use of water, water withdrawals, what authority controls and who regulates;

● Impacts if any on waterbodies and aquatic life in affected water bodies accepting chemical fluids of varying composition;

● Adequacy and availability of treatment and pre treatment facilities.