Academic journal article Case Western Reserve Law Review

Awakening the Slumbering Giant: How Horizontal Drilling Technology Brought the Endangered Species Act to Bear on Hydraulic Fracturing

Academic journal article Case Western Reserve Law Review

Awakening the Slumbering Giant: How Horizontal Drilling Technology Brought the Endangered Species Act to Bear on Hydraulic Fracturing

Article excerpt



Hydraulic fracturing (also known as "fracking") is nothing new. It dates back to the 1940s and drew little environmental attention or concern for most of its existence. It is a form of natural gas extraction that involves pumping water, chemicals, and sand slurry into a well at extremely high pressure in order to fracture the surrounding rock formation and prop open passages. This frees up the trapped natural gas to flow from the resulting rock fractures to the production well for capture. Fracking operations have evolved from using a range of 20,000 to 80,000 gallons of water per well to using up to 8 million gallons of water and 75,000 to 320,000 pounds of sand (proppant) per well. (1) Much of this advancement happened in the last two decades, thanks largely to the development of dramatically more advanced drilling technology that allows for horizontal drilling deep under the ground. After drilling downward from the point of entry, the drill turns roughly ninety degrees once deep underground, thereafter traveling parallel to the surface. To visualize this process, imagine a very tall "L" with the long side horizontal underground and the short side's tip at the surface. While the downward drilling goes a substantial distance, the drill goes much further after it turns horizontally, and is thus able to get at exponentially more of the shale rock. This new technology has not only rendered the method far more productive and profitable but has also increased the environmental impact.

The recent development of utility-scale hydraulic fracturing, which has taken place at a gold-rush pace and with a corresponding level of excitement, has raised many new environmental concerns. The issues are quite serious, ranging from drinking water contamination to earthquakes, so it is not surprising that wildlife has not been at the forefront of the alarms. But as it turns out the wildlife problem, and not the contamination of the human water supply, may well be the most ominous for the industry. This seemingly anomalous circumstance stems from the array of regulatory exemptions granted to the industry in the statutes designed to protect human health and the complete absence of such exceptions in the Endangered Species Act (ESA). Indeed, the ESA tends to be the least flexible of environmental statutes. It may not get its due in implementation, but when it is applied, it is fierce and unbending. We are just now gradually learning that the new scale of hydraulic fracturing technology is fraught with potential ESA violations, and early signs suggest that the wildlife agencies and NGOs are poised to halt the activity.


Traditional oil and gas extraction involves drilling through impervious rock that traps concentrated underground reservoirs of oil and gas. (2) Extraction occurs simply due to the change in pressure caused by the drilling, and this method has always been very economically appealing, resulting in as much exploitation as is permitted. But not all of the earth's coveted fossil fuels sit conveniently in these conventional deposits. Quite a bit is trapped in tiny pores and cracks within otherwise impermeable sedimentary rock formations, such that a similar quantity of the resource is spread out over a much larger area. Shale (which is most often the target of the current fracking boom) is an example of such rock. For this reason, the fossil fuel deposits in shale are far more difficult to reach than those in conventional pooled deposits. This oil (called "tight oil") and gas were thus at one time effectively out of our reach.

Hydraulic fracturing solves this problem. In order to reach the many tiny deposits throughout the rock, it is fractured by injecting a specially formulated fluid into it with tremendous pressure. …

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