Balancing Hydraulic Fracturing's Environmental and Economic Impacts: The Need for a Comprehensive Federal Baseline and the Provision of Local Rights

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I. INTRODUCTION

Hydraulic fracturing, or "hydrofracking," describes the process wherein fluid is pumped underground at extremely high pressure to drive out oil or natural gas. (1) Although first developed in the 1940s, hydrofracking did not begin to revolutionize the U.S. energy-extraction industry until 1998, when, for the first time, it was used in conjunction with horizontal drilling. (2) This combination of technologies provided for resource extraction from previously uneconomical shale basins--dubbed "unconventional" reserves (3)--prompting a rapid proliferation in the number of natural gas wells constructed across the United States. (4) For example, in Pennsylvania's Marcellus shale formation alone, 196 wells were drilled in 2008, 763 in 2009, (5) 1,386 in 2010, (6) and an astronomical 3,500 are projected by 2020. (7) The practice of hydraulic fracturing is expanding so hurriedly that even residents of urbanized areas are subject to the possibility of "twenty-four hour drilling disrupting the tranquility" of their backyards. (8)

Currently, a schism exists between energy lobbyists: one extreme believes that natural gas provides the key to America's energy future; the other clamors that hydrofracking should be completely eradicated because of its potential to cause environmental degradation. Because of America's increasing demand for energy, policymakers need to find a middle ground, allowing for increased energy production while minimizing environmental risk. This paper argues that the federal government is the best entity to govern this tension between increasing extraction and environmental protectionism.

Part II provides a brief technical description of hydrofracking. Part III reviews the historical evolution of hydrofracking law in an effort to better frame the current state of energy policy. Part IV explores the environmental concerns associated with hydrofracking; Part V evaluates its economic benefits. Lastly, Part VI argues for a comprehensive, federal regulatory baseline to govern hydraulic-fracturing policy, supplemented by local rights that can extend beyond this baseline.

II. WHAT IS HYDROFRACKING?

Hydrofracking has revolutionized the energy industry by allowing drillers to reach previously inaccessible oil and gas deposits. (9) Using the coupling of hydrofracking and horizontal drilling, widely dispersed oil and gas reserves can be extracted from tight, low permeability geologic areas. (10) Fluid cocktails are injected into the subsurface at extremely high pressures, which causes the already-existing fracture networks to expand and also creates new fissures. This expanded fracture network gives previously trapped hydrocarbons an avenue to reach the wellbore. (11) The contents of the fluid cocktail differ depending upon the precise geology of the area and the hydrocarbon to be extracted, but water and sand are two primary ingredients for any given fracturing operation, and are usually supplemented by various solvents, including hydrochloric acid or diesel fuel. (12)

The process of injecting the fracking fluid stimulates the cracking of the subsurface geology. Next, the sand (or a similar substance) flows into the cracks and props them open--the substance, when used in this way, is referred to as a "proppant" (13)--providing a longer duration for the desired hydrocarbon to reach the wellbore. (14) Approximately nine to thirty-five percent of the fracking fluid flows back up the wellbore--referred to as the "flowback"--for around two weeks after the initial fracturing. (15) The rest of the fracking fluid remains in the earth's subsurface. (16)

III. AN OVERVIEW OF HYDROFRACKING LAW AND POLICY

A. The Energy Policy Act of 2005 and the "Halliburton Loophole" (17)

The Energy Policy Act of 2005 (18) exempted hydrofracking from the majority of the existing environmental regulatory framework. (19) Congress stated that the hydrofracking exemption would increase the country's potential to reach the goal of energy independence, (20) but critics remain skeptical as to the legislature's true motivation for the exemptions. …