Science and the Reasonable Development of Marcellus Shale Natural Gas Resources in Pennsylvania and New York
McKay, Lynn Kerr, Johnson, Ralph H., Salita, Laurie Alberts, Energy Law Journal
Synopsis: A fair amount of controversy concerning the development of natural gas resources in the Marcellus Shale formation has accompanied the return of significant oil and gas exploration and production to Pennsylvania. One need only look at the news headlines and legislative and regulatory dockets to appreciate the diversity of issues and positions on those issues related to the Marcellus Shale region. A growing number of lawsuits and media reports give the impression that Marcellus Shale drilling and production operations - especially the process known as hydraulic fracturing - are indisputably harmful to both the environment and to those who live in the vicinity of the wells. Lawmakers and regulators have introduced myriad measures imposing additional oversight and operational requirements on Marcellus Shale producers. The economic, environmental, and human impact of such measures will be significant - which is exactly why unbiased and informed scientific evaluation of the potential link between Marcellus Shale production activities and environmental and health concerns is essential to appropriate judicial and regulatory decisions. The success of efforts to explore and develop Marcellus Shale natural gas resources requires continued critical and scientific evaluation of information concerning all aspects of the enterprise.
Investment in the development of natural gas resources in the Marcellus Shale formation1 continues to bring lower energy costs and new jobs to local economies. It has also attracted litigation alleging that well drilling, hydraulic fracturing,2 and natural gas production have contaminated drinking water supplies and damaged property in the vicinity of some operations. Media reports of landowner complaints alleging problems with drinking water wells due to nearby Marcellus Shale operations abound. Actions regarding Marcellus Shale operations have proceeded along disparate and inconsistent paths, and often without critical technical review. Some lawmakers and regulators have introduced measures imposing additional oversight and operational requirements on Marcellus Shale producers, including rules focused on hydraulic fracturing. These measures aim to control the release and migration of new and used fracturing fluids and other well fluids from well bores, and at the surfaces of well locations, into the surrounding environment. Other measures simply prohibit any further effort to develop Marcellus Shale resources in certain locations, either before assessing the potential impact of additional activities or in response to perceived deficiencies in efforts to perform such an assessment.
Scientific evaluation of information concerning the potential link between Marcellus Shale production activities and environmental problems is essential to appropriate judicial and regulatory decisions. Rigorous investigations and objective interpretation of data can improve understanding of the extent to which Marcellus Shale operations may impact water quality or transport naturally occurring radioactive material (NORM), such as radium and uranium, from the formation to the surface. Such reliable scientific information can support appropriate regulatory and operational responses. Moreover, as technically sound data are preferred by courts, the results of deliberate and reasoned studies will assist juries in evaluating contamination and NORM claims.
This article examines the bases for regulatory and legislative actions; evaluates allegations made in environmental and personal injury actions; and describes how sound science can inform future actions by legislators, regulators, litigants, and operators regarding Marcellus Shale exploration and production in New York and Pennsylvania. It uses recent developments in those states, and actions by the United States Environmental Protection Agency (EPA) and the Delaware River Basin Commission (DRBC) as case studies. Officials in Ohio, West Virginia, and Maryland have also begun to address and implement changes to laws and regulations pertaining to natural gas operations in those states. …