In early August 2011, U.S. District Judge Nicholas G. Garauf ruled in favor of the U.S. government’s request to dismiss a lawsuit filed by the state of New York.  State Attorney General Eric T. Schneiderman claims that an environmental impact report must be created for new legislation that could result in new hydraulic fracturing projects across New York.

Schneiderman filed the suit against the Delaware River Basin Commission, an interstate federal agency, for new regulations that would allow hydraulic fracturing at as many as 18,000 gas wells in New York without investigating the environmental hazards of these new projects.  New York hopes to hold the Delaware River Basin Commission accountable to the National Environmental Policy Act’s requirement to create an environmental impact statement in every instance of new legislation or other Federal actions that significantly affect the quality of the human environment.

Hydraulic fracturing (or “fracking.” as it’s commonly known) is an increasingly common technique of extracting natural gas from underground shale formations.  The process consists of drilling a horizontal injection well thousands of feet into the Earth’s crust, where a solution of water, sand, and other chemicals is injected to create a great amount of pressure, resulting in a fracturing of the shale formation. The natural gas in the shale is then collected at the opening of the well.

Environmental Concerns

Recently, there have been a growing number of reported incidents where the fracking process has resulted in the contamination of underground sources of drinking water. The new legislation approved by the Delaware River Basin Commission would open up an opportunity for hydraulic fracturing projects that could affect the drinking water of 9 million New York residents.

Environmental protection groups and environmental government agencies in the U.S. have been under a great deal of pressure to uncover the extent to which hydraulic fracturing poses a hazard to underwater aquifer contamination. The past several years have been an especially controversial time for the debate on fracking, as the U.S. has attempted to increase domestic energy projects while simultaneously responding to the objections of people who have witnessed the detrimental environmental effects of fracking projects on their surrounding environment.

Last year, the Environmental Protection Agency began a study to determine the full spectrum of environmental hazards posed by fracking projects.  The results of this study are scheduled to be released in 2012, but hydraulic fracturing has already become a pressing issue in the U.S. as the energy industry seeks to expand domestic drilling projects.

Perhaps the most problematic issue for people concerned about the dangers of hydraulic fracturing, however, is the degree to which energy companies are attempting to expand fracking projects by limiting the amount of government oversight that can be applied to fracking.

The “Halliburton Loophole”

In the energy bill of 2005, Congress exempted fracking from EPA regulation under the Safe Drinking Water Act (SDWA).   This decision has come to be known as the “Halliburton Loophole” because the SDWA exemption for fracking, a procedure that was invented by Halliburton, was inserted into the 2005 energy bill at the recommendation of U.S. Vice President and ex-Halliburton CEO Dick Cheney.  Presently, the only instances where hydraulic fracturing can be held accountable to the SDWA are when diesel fuel is used in the solution injected underground.

When it was discovered earlier this year that diesel fuel, and solutions containing at least 30% diesel, were still being used in the process of hydraulic fracturing, legislators and regulators were stunned.  Rep. Henry Waxman (D-Calif.), the ranking member on the House Energy and Commerce Committee, stated that the committee had assumed diesel use in hydraulic fracturing had ended years ago with a memorandum of agreement that was expected to end such practices.

Despite this and other instances of drilling projects compromising the quality of drinking water sources, it has been exceedingly difficult to pass any legislation holding hydraulic fracturing projects accountable to the SDWA.  The Fracturing Responsibility and Awareness of Chemicals (FRAC) Act, which was not approved in the 111th U.S. Congress and has been reintroduced to the 112th U.S. Congress, is the only recently proposed federal legislation that attempts to hold hydraulic fracturing accountable for all the statues of the SDWA.  Opponents of the FRAC Act argued that bringing hydraulic fracturing under the jurisdiction of the SDWA is an unnecessary legislative measure that would result in a suite of frivolous lawsuits from environmental organizations that would force the EPA to place unreasonably strict regulations on fracking and halt business for energy companies.  Additionally, many analysts argued that the drilling fluids from hydraulic fracturing are not disposed of underground, and because the EPA wishes to protect underground sources of drinking water from the chemicals used in fracking, the EPA does not have the jurisdiction under the SDWA to regulate hydraulic fracturing.

However, energy companies themselves state that 30 – 70% — and sometimes even more — of hydraulic fracturing fluids can be left underground after the process of fracturing has been completed.  This figure, paired with the recent revelation that drilling companies have illegally injected 32 million gallons of diesel fuel into the ground means that fracking has been practiced irresponsibly, dangerously, and certainly illegally for years, but no one has been able to determine and rectify the practices of the energy companies because of a lack of government oversight.

As hydraulic fracturing projects expand, people are becoming more concerned that their sources of drinking water are also at risk of contamination. Further, environmental groups hope to stop unsafe forms of drilling because ex post facto environmental laws cannot solve the environmental and logistical problems of a damaged natural environment.

Presently, there is no comprehensive federal investigation that has been able to find hydraulic fracturing to be a benign practice.  As time passes, more claims of aquifer contamination by hydraulic fracturing are being found across the nation.  A resurfaced EPA report from 1987 shows that there have been records of underground contamination linked to hydraulic fracturing for 23 years.  This report traces back a dark gel found in water wells in Jackson County, W. VA, to nearby hydraulic fracturing gas wells.  Over 1,000 similar claims have been made linking contaminated water sources to hydraulic fracturing projects in Wyoming, Colorado, New Mexico, Alabama, Ohio, and Pennsylvania.  The EPA is currently finding it difficult to exercise any form of oversight as it is attempting to compile evidence of the hazards posed by hydraulic fracturing to fight back against energy companies looking to expand projects and reduce government oversight.

New York State has been at the forefront of the fight against hydraulic fracturing projects since 2008 when it was revealed that it did not have the capacity to manage the wastewater produced in hydraulic fracturing and it decided to halt all in-state drilling.  New York State sits atop the northern end of the Marcellus Shale formation, the largest known domestic shale formation in the nation, and is facing increasing pressures from drilling companies to open up wells to hydraulic fracturing projects across the state.  New York has a firm in-state effort to oppose dangerous new projects, but if the past is any indication of the control of energy companies, concerned citizens, legislators, and environmental agencies can expect a great deal of trouble to a halt projects that are being permitted by federal agencies.

The suit filed by New York State Attorney General Eric T. Schneiderman was one attempt to fight back against new hydraulic fracturing projects.  Now that the U.S. has successfully dismissed the case, New York will have to find new ways to hold drilling companies and the EPA accountable for the effects of new drilling projects on its aquifers and drinking water.