By: Katie Burch, J.D. Candidate ’14 | August 8, 2013
Fracking is a process whereby water, sand, and chemicals are pumped into a horizontal water well so as to “fracture” the underground shale, allowing natural gas to flow freely. The process has seen a tremendous uptick in recent years, with over one million wells drilled in the last sixty years. Some economists call it the next “big thing.”
To be sure, the process has contributed to reliably low natural gas prices for consumers. In 2008, natural gas prices hovered around $12. Since the rise in hydraulic fracturing, prices have fallen to just over $4 in 2011. But as the process continues to develop, and prices continue to fall, legal questions regarding hydraulic fracturing are now a hot button topic in many circles.
As a general rule, the Environmental Protection Agency regulates just about everything that could affect underground drinking water supplies. In 2005, however, the EPA successfully lobbied Congress for an exemption from the Safe Drinking Water Act for fracking. The result? States, which don’t have nearly the kind of resources of the EPA, are now charged with the duty to implement any regulations to protect the sanctity of the local water supplies.
In 2009, Lee Fuller, vice president of government relations for the Independent Petroleum Association of America, told National Public Radio “we have no evidence that hydraulic fracturing is causing problems.”
But is it too soon to tell? Hollywood chimed in on the debate with the release of Promised Land, a film about a small town forced to weigh the economic benefits of fracking with its potential health risks. In one scene, a man lights a model farm on fire to simulate what happens as a result of chemicals from hydraulic fracturing entering the water supply. Other unconfirmed real-world stories have been described to media sources of foul smelling water, oily film on top of water, and even an Ohio couple’s home blowing up as a result of gas from their water well filling their basement.
But now researchers from the National Institute for Occupational Safety and Health are being forced to weigh in on the debate. In March of 2013, researchers visited 11 fracking sites in five states: Arkansas, Colorado, North Dakota, Pennsylvania and Texas. At each site, researchers found high levels of silica, with 79% of the collected samples exceeding the recommended exposure limit. The prolonged inhalation of silica has been directly linked to certain forms of lung cancer. The unexpected finding has triggered demands for stricter regulation, which has gas companies warning of increases in natural gas prices.
So, in terms of legal remedies for all parties effected, what options are available?
In an article published for the UALR Law Review, author Erica J. Fitzhugh lays out the legal background for understanding some of the problems faced by landowners in areas where hydraulic fracturing is already in place. In it, she sets forth a compelling framework for understanding some legal remedies currently available to those affected landowners.
