Wednesday, July 18, 2012

A Few Thoughts and a Reading List on … FRACKING

I just finished teaching a 1-unit summer course called “Hydraulic Fracturing (“Fracking”) Law and Policy.” Given the timeliness of the topic, I thought I’d share the reading list, in case it’s useful to anyone, and give you my initial take on this complex and fascinating topic.

First, my take on the issue:

I thought “fracking” was a new problem. Turns out it’s not, or at least not primarily so. What’s new is that the advent of horizontal drilling technology has opened a lot of areas of the country to new or expanded oil and gas exploration. But most of the serious risks of that exploration are the same risks we’ve seen everywhere the industry operates: the risks to human health and the environment from well construction, operation, and inevitable abandonment; the risks of spills during the production and transport of oil or gas; the risks of well explosions and leaks; the risks to communities from boom-and-bust economic development.

Yes, fracking also creates new problems, most notably front-end water demand (fracking a well requires an average of 5 million gallons of water) and back-end treatment and disposal. But the principal concern about fracking is not the fracking, per se. The principal concern, in my view, is that we don’t adequately regulate issues like stormwater runoff from well pads, and cement quality in oil and gas well construction (see the BP spill)—that is, longstanding and well recognized environmental and public health issues that are garnering new attention in areas where fracking has “taken off.”

I don’t mean to imply that these problems are any less important because they are longstanding. Rather, my point is that we should stop thinking about fracking as posing new and different risks and confront the real problem: an oil and gas industry that has benefited from a lot of regulatory exemptions that come back to haunt us everywhere and in every way that industry is active. (By the way, Hannah Wiseman’s earlier post on this blog about oil and gas exemptions from environmental regulation gives a great overview and is available here)

Now for the reading list:

We tried hard to keep this quite balanced, and to present a story that would help students think about “appropriate regulation” of fracking, since the technology seems to be here to stay.

The entire reading list is available here.  A synopsis of topics follows.

We organized the course into four 3-hour blocks. On day 1, the students read background material on natural gas (energy and manufacturing uses, pricing, geographic distribution of natural gas plays, etc.); the science and technology of hydraulic fracturing (and how it compares to traditional oil and gas drilling); the ongoing debate about the GHG footprint of natural gas; and the terminology of the fracking debate. In discussing these issues with the class, we made use of some great video presentations put together by EnergyfromShale (available here), by the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling (available here) , and by the New York Times (available here).

On day 2, the students read background material on the environmental and public health risks of fracking, as well as some background material by Paul Slovic on risk perception. During class, Khary Cauthen, Washington Representative for the American Petroleum Institute, provided one set of industry perspectives on this issue.

Day 3’s reading focused on federal regulatory approaches to fracking, including some background on the most recent EPA and BLM regulatory actions, and the ongoing EPA study of water quality in areas affected by fracking.

For day 4, students read about state approaches to fracking, with particular focus on two northeast states that have quite different takes on fracking regulation, New York and Pennsylvania. Two class visitors then gave students their insights on those two states’ approaches to fracking: Haley Stein, Assistant Corporation Counsel in the New York City Law Department, who spoke about the unique risks of and regulatory approaches to fracking in New York State; and Jessie Thomas-Blate, Coordinator of American Rivers’ Most Endangered Rivers Campaign, who spoke about the same topics for Pennsylvania.

Finally, I also wanted to be sure everyone is aware of the terrific New York Times series, by Ian Urbina and others, that addresses many of the social and environmental issues around fracking. The homepage for the series is here.

--  Guest post written by Amanda Cohen Leiter, Associate Professor, American University, Washington College of Law

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For a perspective on aggregation issues in Pennsylvania, I would recommend a recent ABA NR&E article-

Fugitive Emissions: The Marcellus Shale and the Clean Air Act, available at

Posted by: Guest | Jul 19, 2012 2:24:47 PM

Terrific course and very timely. I would add the climate implications of unconventional gas recovery. Is it, as the gas industry claims, a bridge to a low carbon future or, as some leading climate scientists have said, "a bridge to nowhere" One issue is the rate of methane release and the efficacy of EPA's "green closure" rules. Raging controversy at Cornell over warring studies by senior members of Geology Dep't. See
The other and bigger question is whether, even with 98% capture, shale gas can deliver any meaningful benefits for climate stabilization this century. Myrhvold &Caldeira say no, and gas may simply delay the need for an immediate shift to wind solar, efficicncy, etc. her's their study:

Posted by: pa tparenteau | Jul 19, 2012 5:34:51 AM

I would like to highlight to other readers the value of the reading list you linked in your post. As somebody trying to get my arms around this issue, I can see that it provides a much needed primer on many of the most important issues related to fracking. I am glad that you took the time to post your thoughts and materials.

Posted by: Brigham | Jul 18, 2012 10:26:40 PM

Looks like a great class Amanda! Thanks for posting.

Posted by: Andrew Mergen | Jul 18, 2012 6:04:28 PM

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