Regulating Hydraulic Fracturing in Michigan: The Protection of Our Waters and Our People Hits Another Roadblock

By Skalski, Amanda | The Journal of Law in Society, Winter 2013 | Go to article overview

Regulating Hydraulic Fracturing in Michigan: The Protection of Our Waters and Our People Hits Another Roadblock


Skalski, Amanda, The Journal of Law in Society


Table of Contents    I. INTRODUCTION  II. BACKGROUND       A. History of Hydraulic Fracturing       B. Process       C. Where is Fracking Used?       D. Why Use Hydraulic Fracturing?       E. The Environmental Costs of Hydraulic Fracturing       F. The Societal Costs of Fracking       G. What Problems Have Surfaced in Other States?       H. The Federal Hydrofracking Regulatory Scheme       I. Michigan Hydraulic Fracturing Regulations       J. MI House Bill No. 4736 and its Implications       K. The Political Game Involving Hydrofracking       L. Regulatory Examples From Other States       M. The Fracking Bottom-Line III. ANALYSIS       A. What Can Michigan Learn From Other States? Are          States Ignoring the Societal Impacts?       B. What Federal Solutions Have Been Attempted? What Could          the Federal Government Do?       C. What Are the Possible Solutions in Michigan?           1. Address the Societal Impacts Through Education           2. Remove the Regulatory Shield over Oil and Gas              Companies and Incentivize Ethical Behavior           3. Address Environmental Concerns with Extra-Care              Standard or Cradle-to-Grave Approach       D. Who is in the Best Position to Regulate Hydraulic          Fracturing?       E. Proposed Solution in Michigan: A Two-Pronged Approach           1. The Environmental Issues and the Benefits of a              Cradle-to-Grave Approach for Water Use  IV. CONCLUSION 

I. INTRODUCTION

Hydraulic fracturing, or "fracking," is an intensive industrial process used to access natural gas and oil trapped underground in deep rock and shale formations. (1) Fracking has entered center stage in the energy arena for two main reasons: The first reason is efficiency: fracking allows for the extraction of otherwise inaccessible oil and natural gas. The second reason is political; fracking has the potential to lessen our country's reliance on foreign oil. (2) The importance of recovering domestic energy sources and the politics behind the federal and state regulations have left hydraulic fracturing extremely under-regulated and rendered what regulations should exist stagnant. (3)

The Michigan legislature has expressed interest in assigning liability to companies who introduce potentially hazardous contaminants to drinking water sources during hydraulic fracturing, (3a) however, the proposed bill is unlikely to have any significant impact on the growing under-regulated industry in Michigan. By relying on current regulations and statutes, both the state and federal environmental agencies have neglected to properly address hydraulic fracturing. This reliance makes it imperative to revisit the current regulations before further environmental and societal damage is done.

This Note will first explore the history and process of hydraulic fracturing. Then, it will evaluate the current federal and state regulations that govern the fracking process, including the pending Michigan legislation, which assigns liability to oil and gas companies who contaminate drinking water while fracking. Next, this Note will discuss the societal and environmental concerns related to fracking and the costs imposed by the lack of regulation. In addition, this Note will look to other states that have dealt with fracking and explore possible solutions to the problems that under-regulation and toothless statutes like the proposed Michigan liability bill pose. Finally, this Note will propose a solution to close the regulatory gap in Michigan and strengthen the proposed legislation. This solution includes implementing an in-depth state permitting and operating process and creating programs and incentives to address the environmental and societal costs of hydraulic fracturing.

II. BACKGROUND

A. History of Hydraulic Fracturing

Halliburton developed and first used hydraulic fracturing in 1949. (4) Fracking was used for decades in conventional oil and gas wells to help release oil and gas when the wells became dry. …

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