Will the EPA’s Hydraulic Fracturing Report Affect Litigation?
On June 4, 2015, the Environmental Protection Agency (EPA) issued its findings on the potential impacts of hydraulic fracturing for oil and gas on drinking water resources. The EPA’s nearly 1,000 page draft assessment, which was conducted at the request of Congress, is the most comprehensive study to date on the effects of hydraulic fracturing (commonly referred to as “fracking”) on drinking water resources in the United States. The study concluded that there are “potential mechanisms by which hydraulic fracturing could affect drinking water resources,” including “inadequate treatment and discharge of hydraulic fracturing wastewater” and “movement of liquids and gases” into “underground drinking water resources.” However, the study also concluded that hydraulic fracturing “hasn’t caused systematic, widespread effects on drinking water.”
Both natural gas producers and environmental groups are hailing the study as a victory. Natural gas producers are pointing to the lack of demonstrated systematic, widespread effects as supporting the safety of hydraulic fracturing, while environmental groups are pointing to the risks detailed in the study to confirm the dangers of the process. The Sierra Club stated that the study “confirms that fracking poses a risk to drinking water sources” and “fracking is inherently dirty and dangerous,” but the group has noted that further study on protecting public health is still required. The American Petroleum Institute, on the other hand, has stated that the study validates the safety of hydraulic fracturing.
The process of hydraulic fracturing involves the injection of highly pressurized fluids into shale, or other underground rock formations, causing fractures in the formations and enabling the release of oil or natural gas. Hydraulic fracturing wells typically extend thousands of feet below the ground surface, often passing through groundwater aquifers to reach shale gas formations. Once the fracturing fluids are injected into the shale, the fluids are returned to the surface as wastewater which much be disposed of.
While this technique has been used in the U.S. for decades, new drilling technology has led to a surge in the use of hydraulic fracturing. Within the past several years, hydraulic fracturing has received increased attention and scrutiny from Congress, the EPA, and the public, concerning the potential contamination of aquifers that supply drinking water, and the appropriate disposal of the chemicals and water used in the fracturing process.
These concerns center around the additives used in the fracturing processes, which some argue contain potentially toxic substances such and benzene, toluene, xylene, methanol, and hydrochloric acid. Critics of the fracturing process believe that these chemicals can contaminate drinking water in two primary ways: (1) contaminating underground aquifers; and (2) inadequate treatment and disposal of the fluids which have been returned to the surface.
Hydraulic fracturing is now a standard industry practice and has significantly contributed to the surge in U.S. production of both oil and gas. The EPA reports that from 2011 to 2014, approximately 25,000 to 30,000 new oil and gas wells were hydraulically fractured each year. Coal, the leading fossil fuel produced in the U.S., has experienced a significant decrease in production. In 2007, coal accounted for approximately 33% of U.S. energy production, and by 2013 it decreased to approximately 24%. On the other hand, natural gas production has risen to unprecedented levels, and oil production has surged to levels not seen since the 1980s. Oil went from accounting for 15% of U.S. energy production to 19% between 2007 and 2013, and natural gas went from 31% to 35%. Natural gas production is predicted to more than double between 2011 and 2040, and the portion of natural gas production represented by shale gas will increase from one-third to one-half.
The EPA’s assessment evaluated the relevant scientific literature, as well as federal- and state-collected data sets and reports from non-governmental organizations. The EPA’s report focuses largely on hydraulic fracturing in shale gas formations, and it evaluates the potential impact on surface water and groundwater. The study focused on county-level water quality data collected from states with hydraulic fracturing activity.
According to the EPA report, between 2000 and 2013, approximately 9.4 million people lived within one mile of a hydraulically fractured well. Approximately 6,800 sources of drinking water for public water systems were located within one mile of at least one hydraulically fractured well during the same period. These drinking water sources served more than 8.6 million people year-round in 2013.
There have been dozens of hydraulic fracturing lawsuits filed over the past decade. Many of these lawsuits filed by landowners in Arkansas, Colorado, Louisiana, Ohio, New York, Pennsylvania, Texas, and West Virginia against oil and gas operating and drilling companies, allege contamination of groundwater or sources of drinking water. Many of the cases are in the early stages of litigation, while others have been dismissed or settled. To date, the author has not located any judgment against an oil or gas company for contamination of groundwater as the result of hydraulic fracturing. One of the reasons why plaintiffs have had little success in hydraulic fracturing litigation may be that it is difficult to prove the cause of alleged contamination. Water sampling and analysis is necessary to prove whether water is contaminated. Even if testing shows contamination, it can be difficult to prove the cause of that contamination. Some harmful substances are naturally found in the groundwater in certain areas. There may also be multiple types of human activity that can cause a particular type of contamination. There might also have been multiple parties engaged in the types of activity that can cause contamination.
As the EPA assessment is the most comprehensive report on the subject, it will be interesting to see what effect, if any, the report has on current and future litigation. Whether it will be the plaintiffs or the defendants who are ultimately able to use this report to support their position may determine the future course of hydraulic fracturing litigation.
Photo Credit: Eric Norris