Friday, January 20, 2012

Fracking wastewater, earthquakes, and the stream of interstate commerce

Growing up in Ohio, I recall the chandelier in our dining room shaking occasionally when military planes from a nearby air base would fly too low. Now, it appears, chandeliers are shaking all over Youngstown, which has had eleven ... that’s right ... eleven earthquakes in the last year for a town that had previously recorded zero earthquakes in its history.

One of those earthquakes, on New Year’s Eve, registered 4.0. That’s big enough to do more than shake chandeliers; it’s rattling nerves. Right now, the biggest potential culprit for all the shaking going on is injection wells associated with the hydraulic fracturing (or “fracking”) boom that has taken the region. Last week, 500 residents attended a public meeting about the quakes, which have been centered near a well that has been used for the disposal of millions of gallons of brine and other waste liquids produced at natural-gas wells, mostly in Pennsylvania. Earlier this month Governor John Kasich ordered a moratorium on wastewater injection wells within a five-mile radius of the well that may be the culprit. 

An intriguing aspect of this story to me was that much of the wastewater injected into the Ohio well came from Pennsylvania fracking operations. A petroleum executive representing the Ohio Oil & Gas Association at last week’s public meeting stated, "There are all types of interstate commerce, that happens to be one of them.” He continued, “Pennsylvania is not Afghanistan. It's the state next to us.” 

The question of the interstate flow of fracking wastewater appears to be heating up.  A proposed bill in the New Jersey Legislature would provide that, “No wastewater resulting from hydraulic fracturing for the purpose of natural gas exploration or production in any state may be treated, discharged, disposed of, or stored” in New Jersey.  Opponents of the New Jersey bill are charging that such legislation would violate the U.S. Supreme Court ruling in City of Philadelphia v. New Jersey, 437 U.S. 617 (1978), which held that New Jersey’s prohibition on "solid or liquid waste which originated or was collected outside the territorial limits of [New Jersey]” from being disposed of in New Jersey violated the Dormant Commerce Clause.

This seems to raise a high stakes question:  would fracking wastewater fall within the holding of City of Philadelphia?  In other words, if Youngstown decides it is tired of earthquakes, can it limit Pennsylvania fracking wastewater from being disposed of in Ohio?  It seems to me we might well find this question litigated as not just fracking, but the disposal of fracking wastewater, heats up in Ohio, New Jersey, and elsewhere.

Stephen Miller

http://lawprofessors.typepad.com/land_use/2012/01/fracking-wastewater-earthquakes-and-the-stream-of-interstate-commerce-.html

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