Academic journal article Environmental Law

Fracking-Caused Earthquakes: How Alleged Threats Could Trigger the Corps of Engineers' Section 10 Jurisdiction

Academic journal article Environmental Law

Fracking-Caused Earthquakes: How Alleged Threats Could Trigger the Corps of Engineers' Section 10 Jurisdiction

Article excerpt

I.   INTRODUCTION II.  BACKGROUND III. SECTION 10 OF THE RIVERS AND HARBORS ACT AS A POTENTIAL BASIS      FOR AUTHORITY      A. Courts Have Embraced Section 10's Upland Jurisdiction      B. The Corps' Regulations Acknowledge Section 10's Upland         Jurisdiction but the Corps' Administrative Practices Neglect         Its Upland Jurisdiction      C. Triggering Section 10's Upland Jurisdiction      D. How the Corps Could Prevent Harm Under Section 10         1. Enjoining Earthquake-Linked Operations         2. Subjecting Certain Fracking Operations to the            Department of the Army Permitting Process      E. Likely Resistance to Corps Regulation. IV.  CONCLUSION 

I. INTRODUCTION

There is growing concern that earthquakes caused by hydraulic fracturing ("fracking") could damage nearby dams, locks, and levees, threatening human lives, the environment, and the integrity of the nation's waterways. The U.S. Army Corps of Engineers (Corps), as the federal agency tasked with protecting and maintaining the navigable capacity of the nation's waters, (1) should evaluate this concern and determine what legal authority it could utilize, if any, to protect these structures from the alleged threats posed by fracking. This Comment examines the viability of one such statutory authority--section 10 of the Rivers and Harbors Act. (2)

Part II provides background information on the Corps and explains the alleged threat that fracking-caused earthquakes pose to the Corps' projects. Part III introduces section 10 as a potential source of legal authority that has been effectively utilized to regulate activities that--like fracking--occur outside of the nation's waterways, yet still effect the waterways. Part III also argues that section 10 provides a strong legal foundation for subjecting certain fracking operations to the Corps' permitting program and for enjoining other operations. Lastly, Part III briefly explores a few potential objections to the Corps' utilization of section 10 to prevent earthquakes. Part IV concludes that if the alleged threats posed by fracking-caused earthquakes are validated, the Corps will have sufficient legal authority under section 10 to address those threats and prevent harm to the nation's waterways.

II. BACKGROUND

The Corps owns and operates more than 670 flood damage reduction and navigation structures throughout the United States. (3) These structures protect life, property, and the environment, and facilitate recreation and navigation on the nation's waterways. (4) The Corps is tasked with ensuring the safety and integrity of these projects. (5) By utilizing its regulatory and enforcement authorities, the Corps works to prevent and remedy negative impacts to its projects, as well as punish those who cause damage."

Fracking is a drilling technique used by energy extraction companies that artificially increases the permeability of fuel-bearing geological formations, resulting in faster, more efficient extraction of oil and gas. (7) The process involves pumping millions of gallons of fluid mixtures into wells at such a high pressure that the geological formations fracture, creating expansive networks of small fissures. (8) When the fluid pressure is released, the fissures remain propped open by particles that were suspended in the fluids, allowing oil and gas to flow back to the wellbore with ease. (9)

The use of fracking has expanded rapidly over the last decade, attracting the attention of citizens and environmental organizations concerned that the process may pose unstudied threats to human health and the environment. (10) One of the many concerns is that fracking near civil works projects--such as dams, locks, and levees--could compromise the integrity of those projects. (11) More specifically, there is growing concern that fracking-related activities are causing earthquakes that have the potential to destabilize civil works projects to the point of failure, resulting in loss of life, property, and the use of navigable channels. …

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