Hydraulic Fracturing Process and the Legal Requirements Applying to the Process - Assignment Example

? A REPORT ON HYDRAULIC FRACTURING PROCESS AND THE LEGAL REQUIREMENTS APPLYING TO THE PROCESS of Affiliation A REPORT ONHYDRAULIC FRACTURING PROCESS AND THE LEGAL REQUIREMENTS APPLYING TO THE PROCESS OBJECTIVES 1) To understand the legal and environmental issues related to hydraulic fracturing process. 2) To understand the federal and state laws regulating hydraulic fracturing process as well as to compare these laws in different states. To also examine these laws relative to a different country. 3) To understand the place of hydraulic fracturing of oil and gas as that relates to U.S. energy needs. 4) To give a personal opinion regarding the hydraulic fracturing process and the laws that should be instituted. INTRODUCTION Hydraulic fracturing refers to a process used to extract gas or oil from beneath the earth’s surface by pumping liquid at high pressure to the subsurface rocks. The pressure in this liquid is enough to fracture the rocks thus establishing interconnected networks of fractures that are then used as pores for the oil and gas to move to the bored well. It is from this well that the final extraction is done. The process has been so far effective and efficient in so far as extraction of oil and natural gas is concerned (Wilber, 2012). Nonetheless, various legal and environmental issues have been raised regarding the process. Its impacts on the environment have not augured well with a majority of the environmentalists. Similarly, various legal concerns have been raised and they vary from one state to the next. In this paper, I seek to present a report on the hydraulic fracturing process, the legal and environmental issues, as well as offer some of recommendations regarding the process. DISCUSSION Hydraulic fracturing process raises various issues both legally and environmentally. The water contamination by the chemicals used during the fracking process has brought out legal issues of strict liability where individuals have asserted harm from such contaminated water. In a Pennsylvanian case of Fiorentino v. Cabot Oil & Gas Corp., No. 09-cv-2284 (M.D. Pa. November 15, 2010), the plaintiff seeks action to be taken against the oil and gas company. This follows the alleged contamination of the plaintiff’s water by methane and other toxins. The court refused to dismiss this case and hence opened a look into allowing plaintiff come up with a claim of strict liability against the hydraulic fracturing companies (U.S. ENVTL. PROT. AGENCY, 2009). The other legal issue presented by the hydraulic fracturing is who is to be held responsible in cases of harm occasioned by the process. From the Fiorentino v. Cabot Oil & Gas Corp.case, it appears that it becomes an issue to the courts to determine the liability of the fracturing company and hence seeks to follow up and develop a rule suitable for this situation. Strict liability seems to have been inapplicable in such issues from the way the defendant presents his case in these proceedings. While various states are embracing this process in gas and oil extraction, other states have banned it and hence are an illegal process. However, some states have left the discretion to the local leaders to decide whether the process should be permitted or not. Permitting such a process is done after various considerations depending on the local leaders take on the public health and safety in case of a flag to engage in the extraction process. The environmental concerns so raised by the hydraulic process are vast and alarming. First, there is a threat of contamination of the underground water brought about by the spillage of the gases and oil extracted. Most of this underground water is a source of drinking water to many, both human and the animals. In an event of contamination of the drinking water then the vast population is affected. Secondly the use of a lot of water from the ground water and the surface water during drilling and the hydraulic fracturing brings a lot of stress to these water suppliers. The drilling and fracturing process requires a lot of water to fracture the underground rocks. This use of large supplies of water is strenuous to the limited water resources available (Spellman, 2012). In the extraction of the gases and the oil, there is usually from time to time the release of volatile organic compounds, hazardous air pollutants and the greenhouse gases that escape to the air. This causes air pollution and adverse climate changes in the long run brought up by the buildup of these toxic gases. This is a serious environmental hazard that has a long term effect on the general population and the generations to come occasioned by the climate change. Regulation of this process is done by both the state and the federal government. It is quite distinct and notable that the hydraulic fracturing regulation has been left to the states. The federal laws on hydraulic fracturing are applicable to the whole country while the state laws apply to the given area under the specific state jurisdiction. The federal laws seem to exempt hydraulic fracturing from the environmental statutes that in essence are meant to regulate this process. The Safe Drinking Water Act for example doesn’t consider this process as a drinking water contaminator despite the common knowledge that such a process contaminates underground water. Efforts to thwart these exceptions in the congress have always been fruitless and bills so passed have been rejected. It is notable that even after the 2004 report of the Environmental Protection Agency it was stated that this process has little or no threat at all to the underground water especially for drinking (U.S. ENVTL. PROT. AGENCY, 2009). The state regulations on the other side vary from state to state. Some states have banned hydraulic fracturing while others have regulations on how, when and where it should be done. However certain states have no regulations and hence are dependent on the general federal regulations in place, to apply in their respective states. It is important to note that states are allowed to regulate this drilling process as they deem fit. However their regulatory laws should not fall short of the federal regulatory laws minimum requirement. As regards to the state of Colorado, the main law that regulates the hydraulic fracturing process is the Oil and Gas Conservation Act (OGCA). The drilling operators must apply for a permit before engaging in any drilling. This is left to the discretion of the commission to grant such a permit or to disallow it. Where granting such a permit causes imminent threat to the public health, safety and welfare of the environment, or a material threat to wildlife resources that commission will find this as a reasonable cause to disallow such a permit from being granted. It is a requirement in hydraulic fracturing that the operators must describe the proposed casing for the well, provide a statement of the type of fluid to be injected, provide a chemical analysis of the fluid to be injected, and describe the proposed stimulation program. Any spills during the process have to be reported to the commission which are then mostly injected back to the ground with permit or disposed off at the commercial waste facilities (Brady, 2012). The New York state prohibits the hydraulic fracturing following the provisions of the Draft Supplemental Generic Environmental Impact Statement(SGEIS) issued by the Department of Environmental Conservation(DEC). However this process is only allowed on privately owned lands but under thorough and effective controls. The Department of Environmental Conservation (DEC) however in its plan to give permit has set proposed regulations for the process which is strict and unattractive to the operators (Whitney and Behrens, 2012). Pennsylvania Department of Environmental Protection (DEP) guided by the Pennsylvania Oil and Gas Act and other statutes, is the regulatory body governing oil and gas drilling in the Pennsylvanian state. This department is also responsible for issue of drilling permits and may disallow such permit issuance where there is a reasonable cause to do so. The operators in their permit applications are required to include a mandatory water plan that will govern water withdrawal and disposal issues. The well operators must keep a list of all chemicals used at each well site available which is also kept by this department of protection of environment (Clovis, 2009). In summary, the various states known for hydraulic fracturing have had to put certain regulations. Other states have banned the process because of its environmental impact like the New Jersey which does not condone any hydraulic fracturing process for oil and gas extraction. Most of the European countries have banned the use of hydraulic fracturing in extraction of natural gases and the liquid oil following its adverse impact on the environment and the public health. A country like France has banned some of the hydraulic fracturing processes terming them to be "unconventional". The country has also gone further and canceled several permits on shale-field exploration after Total SA and U.S.-based Schuepbach Energy, LLC, holding the rights, maintained their intention to drill using hydraulic fracturing. This is the France standing on the drilling process despite the fact that there is wide and vast amount of gas energy in shale formation that can boost the country’s economy and reduce their dependence on Russia for energy. It is in the interest of the sustainable development in environmental issues that France banned the process. The new executive order on hydraulic fracturing was however put into place by President Barrack Obama in 2012. These orders were put into place so as to support safe and responsible development of unconventional domestic natural gas resources. This comes in handy to give a direction on the federal take on hydraulic fracturing, something that had been lacking for a long time. The orders create a working group of 13 executive departments that come in to give a one voice federal standing on the hydraulic fracturing in the country. In its operations, the executive orders are meant to be implemented in consistency with laws that apply and subject to the availability of appropriations. The president acknowledges the fact that the extraction process has been beneficial to the nation but it needs to be handled in the manner to have the confidence of the people. The orders therefore seek to encourage safe and responsible extraction of the gases and oil using the hydraulic fracturing process. Hydraulic fracturing offers a clean energy source to the U.S population at large. U.S has a large population that is in need of energy to run the various apply especially with the increased development in the country. Natural gas has come in to supplement the energy production so as to meet the large demand for energy. It is noteworthy that 25% of the total electricity production in the country is courtesy of the gases annexed through the hydraulic fracturing. It is expected that if the extraction is to go on at the same pace, then 49% of total electricity production in the country from gas will be produced by the year 2035. This in essence will be a big boost in the U.S energy production (Obo, 2013). Gas production reduces dependency on oil if it is used in powering the transport system. Oil has been long used in powering many appliances in the transport sector. This has made countries to be so much dependent on oil that in cases of reduction in oil supply then many types of machinery are grounded. Use of the natural gas becomes a substitute of fossil fuel such as oil and therefore reduces the much dependency on oil as there will be a substitute in place that is the natural gas.  And with appropriate safeguards, natural gas can provide a cleaner source of energy than other fossil fuels (Wilber, 2012). With increased development and need to maintain a clean and safe environment away from the pollution occasioned by the fossil fuels, natural gas provides the best alternative. According to President Obama in his executive orders, he states that natural gas can provides Americans with a cleaner source of energy than the fossils. The extraction of the natural gas by hydraulic fracturing gives access to sufficient gas, which powers the country and thus providing a substitute to the fossils. Hydraulic fracturing gives way into the shale rocks and hence reaching the vast resources of oil and natural gas that is so needed in energy production. This method seems to be the only method that brings about massive quantities of energy production. This is needed for both domestic and commercial purposes. Therefore, it places U.S in a position that it can provide its energy sufficiently and therefore avoid more importation of oil for the purposes of meeting the energy demands of its vast population. This therefore saves the country the burden and the finances of importing oil and natural gases for its energy subsistence (Obo, 2013). RECOMMENDATIONS There is need for a sound and specific laws put in place to regulate hydraulic fracturing. This extraction process has borne various fruits in the U.S energy production and in the process provided job opportunities to many U.S citizens in the process. There has been production of fertilizers and other chemicals from the waste products of the process. It is therefore important that certain laws be put down to enable the process take care of environmental issues in the process of being beneficial to the American people. There is need for a law addressing compensation of victims who have suffered from the extraction process of the gases and oil from hydraulic fracturing. This law should address how individuals whose water has been contaminated or have been affected health wise from taking contaminated water. So far there is an issue of who takes liability in case of a claim against the hydraulic fracturing operators. An issue of whether the liability is strict on the operators is common as experienced in the Fiorentino case and many courts have not been able to answer this question. It is therefore important and so much needful to have a law addressing the victims and the compensation of such victims through an established law and not be left to the discretion of the state courts. A law on environment protection especially in areas where such extraction takes place ought to be put in place. There is need for a clear and precise law and rules that will safeguard the environment and hence advance sustainable development that takes care of the future generations. The hydraulic process has a lot of threat to the environment that the 2004 report of the Environmental Protection Agency overlooked. As such, the environmental impact of this process was not looked at clearly and objectively. A strict law on the environmental minimum requirements to be achieved by this fracturing process when put into place will give a firm guideline to avoid environmental degradation brought out by the process. It will also address other issues like air pollution, disposal of waste materials, procedures in cases of spillage and even remedies available in an event of an environmental wrong occasioned by the fracturing process (U.S. ENVTL. PROT. AGENCY, 2011). Finally a law providing for dispute resolution in fracturing process will save the general courts from the bulk of cases. The law should then put into place a hydraulic fracturing court. Such courts are specific, experienced and well versed with the fracturing process. It will offer the general public and those who may be affected by the drilling process a better place where their issues can be addressed with professionals in that specific area. It will reduce the long sessions taken by the ordinary courts and hence service of justice to the affected. This therefore calls for a law forming a hydraulic fracturing tribunal, give it its mandate and objectives and set procedures for it operations. REFERENCES Brady, W.J. (2012). Hydraulic Fracturing Regulation in the United States: The Laissez-Faire Approach of the Federal Government and Varying State Regulations. Colorado: GRIMSHAW & HARRING. Clovis, A.M. (2009). The Pennsylvania Oil and Gas Act: A Summary of the Statutory Provisions Spellman, F.R. (2012). Environmental Impacts of Hydraulic Fracturing. Texas, TX: CRC Press. Obo, O. (2013). Hydraulic Fracturing (Fracking): Procedures, Issues, and Benefits. New York, NY: Okon Obo, PhD. U.S. ENVTL. PROT. AGENCY. (2009). Regulation of Oil and Gas Construction Activities, retrieved from: http://cfpub.epa.gov/npdes/stormwater/oilgas.cfm (last updated Mar. 9, 2009). U.S. ENVTL. PROT. AGENCY. (2011). Summary of the Safe Drinking Water Act, Retrieved from: http://www.epa.gov/lawsregs/laws/sdwa.html (last updated Aug. 11, 2011). Whitney, G. and Behrens, C.E. (2012). Energy: The Production and Use of Natural Gas, Natural Gas Imports and Exports, EPAct Project, Liquefied Natural Gas (LNG) Import Terminals and Infrastructure Security, Underground Working Gas Storage, Fischer-Tropsch Fuels from Coal, Natural Gas, and Biomass, Gas Hydrates, Gas Shales, Hydraulic… New York, NY: The Capitol Net Inc. Wilber, T. (2012). Under the Surface: Fracking, Fortunes, and the Fate of the Marcellus Shale. New York, NY: Cornell University Press. Read More