March 11, 2011
Pennsylvania, New York, and the EPA: A Case Study in Varied Environmental Regulatory Response
Speaking of looking both forward and back in environmental law, a case study in regulatory response to energy development is rapidly unfolding. Last week, the New York Times ran several stories on state and federal responses to a rapid expansion of natural gas extraction from shales—an expansion enabled by a technique called hydraulic fracturing (also called "fracking" or "fracing"). In those articles, the Times worried that the wastewater from gas wells in the Marcellus Shale (which underlies New York, Pennsylvania, and other parts of Appalachia) is more radioactive than suggested by New York's recent comprehensive environmental impact statement on high water volume fracking. The Times also suggested that wastewater treatment plants might not be adequately treating the water from these wells. Pennsylvania's Department of Environmental Protection promptly struck back on Monday, announcing the results of 2010 in-stream water quality testing that "showed levels at or below the normal naturally occurring background levels of radioactivity" and asserting, "We deal in facts based on sound science." The Times has also expressed concerns that the EPA—which has embarked upon a federal study of the effects of hydraulic fracturing on groundwater—might bend to industry's and energy states' requests to narrow the scope of its study. In testimony to Congress in the midst of the Times's investigative series on fracking, Administrator Jackson indicated that the EPA would explore radioactivity concerns.
As the recent focus in the news highlights, states and the federal government have begun to pay more attention to fracking as it expands. New York has taken a somewhat precautionary approach under its Environmental Quality Review Act—conducting the lengthy state environmental impact statement mentioned above and holding off on granting permits to high water volume fracking operations. Pennsylvania, on the other hand, has aggressively forged ahead with gas development while beefing up some of its environmental regulations. And it appears that gas may soon receive an even more favored status in Pennsylvania; on Wednesday, an organization that has consistently expressed concerns about the safety of fracking reported that Governor Tom Corbett has granted the head of Pennsylvania's Department of Community and Economic Development the power to "expedite any permit or action pending in any agency where the creation of jobs may be impacted."
If you wish to follow the unfolding regulatory saga, the EPA's Hydraulic Fracturing site offers periodic updates on the proposed scope of the EPA's study of hydraulic fracturing and the timeline for that study. Pennsylvania's Department of Environmental Protection posts frequently with statistics on wells drilled and regulatory updates in the fracking area (scroll down after following the link), and New York's Department of Environmental Conservation's regulatory activities related to shale gas drilling can be located on the agency's Marcellus Shale page. For any professors wanting good fracking graphics, the New York Times has a rich set of pictures and videos. In addition to offering an interesting case study in regulatory response, fracking involves a rich array of environmental regulations. The Resource Conservation and Recovery Act, Emergency Planning and Community Right-To-Know Act, Safe Drinking Water Act, Clean Air Act, and Clean Water Act (among others) all come into play under certain fracking scenarios: Chemicals must be transported to and used on site, wastewater must be disposed of—typically through POTWs or in underground injection wells (or possibly land application), and rigs and other on-site equipment generate air emissions.
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