Friday, July 12, 2013
You are a legal scholar, law student, or associate ghostwriting your boss's next thought piece. Your vague topic is the "energy revolution" or "America: the next Saudi Arabia?" You spend time on Westlaw. At some point, you feel the onset of "fracking fatigue." The symptoms are easy to spot. You bristle at the puns and plays on words ("shale we" this, "why the frack" that). Anxiety sets in as you read what seems to be the same geomechanical lecture over and over again. Now you're skipping text, confident in the abridged arc of the story - alternative fuel production tax credit, exemptions, something is wrong, study, LEAF, 11th Circuit, study, exemption, study, abandoned study - but unsettled by your work habits. Property was never your bag, so you only glance at articles that ponder ferae naturae and ad coelum, although compulsory pooling sounds scary. Opposing truths are repeated with a straight face and a footnote: hydraulic fracturing ("fracking") is nothing new; fracking is novel. You question your senses. The enormity of the literature is apparent. You count and sort to calm yourself: 500 papers in the last ten years, nearly 300 in the last two years, like so many drilling wells. This is followed by avoidance: each time you find a back-of-the-envelope "should we frack" piece, you vanish the window from your screen.
What you have is a relatively minor condition. Fracking fatigue should not be confused with the bone-tiredness of the evacuee, lessor, operator, resident, shift worker, state employee, or citizen-turned-alleged-insurgent. And the legal literature on fracking does have its redeeming moments. But for now, trust your instincts and log out of Westlaw. If we're going to advance our understanding of fracking, we need to spend time elsewhere. Hit the archives. Find the peer-reviewed studies. Read the trade literature. Make a FOIA request, or read documents obtained under threat of litigation. Seek inspiration in a coffee table book. Then return to the task at hand, armed with new questions. Here are hints of what you will find.
As you broaden your reading, chaos gives way to complex systems: "unconventional" energy production, its infrastructure, and its novel and systemic risks. Conventional oil and gas cede their dominance to oil shale, bitumen, tight gas, shale gas, and coal bed methane. Each has its own production technologies. Fracking is one of them. It is a novel mix of horizontal drilling, controlled explosions in the well shaft, and high-volume, high-pressure applications of water, sand, and chemicals to break open fissures in rock through which gas can flow. Unconventional production marks an eerie shift of manufacturing from aboveground (e.g., cracking) to deep below the surface (e.g., pyrolysis, fracking), as fuels are more difficult to wrestle from the earth. Reading the trade literature, you grasp the experimental nature of these modes of production. Operators test and refine drilling techniques and chemical mixtures as they move from one well, or one well stage, to another. The adaptive learning process of extraction varies by location and resource. Thus, it is important to read the literature with care. Is the "energy extraction" enforcement initiative, the MOU between EPA and industry, the reporting requirement, the endangerment order, or the greenhouse gas footprint estimate for shale gas or coal bed methane? Does it concern all phases of production (drilling, completion, workovers, etc.) or only some of them? Do the combinations of techniques and fuels present different contamination and other risks?
Teasing apart these differences, we also arrive at common concerns. Among them are matters of scale and infrastructure. Shale gas requires a "greater number of wells drilled more closely together compared with conventional fields" - a "greater surface footprint over a wider area" and along with it, more water, equipment, and waste. The facts differ by well and shale play, but the scale is always vast. For example, a shale gas well in the Barnett formation in Texas requires a quarter of a million gallons to drill, and 3.8 million gallons to fracture. Around each five-acre well pad, there is a regional infrastructure of pipelines, gathering systems, processing plants, compressor stations, storage facilities, deep-injection or surface water disposal sites, heavy machinery, flare stacks, concrete water depots, and hundreds of truck trips. Add to this a shadow infrastructure of abandoned pipelines and orphaned gas wells. Then consider the impacts of this infrastructure both onsite and further afield - the fugitive emissions, the fragmented forest, the price of water in Texas, the one hundred new sand mines in Wisconsin. The production models are now available for export, through the State Department's Unconventional Gas Technical Engagement Program. A similar picture can be painted for other unconventional energy sources. Tar sands development in Alberta has been likened to "an enterprise of epic proportions, akin to the building of the pyramids...Only bigger." Its waste ponds are the new sprawl in Canada, soon to cover 250 square miles.
It's hard to hold all of this in your head. Start with Richard Misrach and Kate Orff's Petrochemical America (2012), a meditation on the infrastructure that surrounds conventional oil and gas. It is a subversive book, a collaboration between a photographer and a landscape architect. It may strike you at first as a voyeuristic account of River Road along a stretch of the Mississippi River. This is a striking landscape, punctuated by cypress swamps, old statues, and cinder block buildings. Hints of industry are everywhere, even miles from the region's many industrial plants. Much of it is abandoned, leaking, or flooded. Midway through, the book abruptly shifts gears. A new introduction appears: "This book is about how oil and petrochemicals have transformed the physical form and social dynamics of the American landscape." At this point, the book blends earlier photographs with illustrations in what the authors call "narrative cartography." These sketches allow you to grasp the complexity of the infrastructure. The story of "Cancer Alley" is told as never before, from detailed maps of displaced towns to the networks of underground pipes and salt domes. One of the more chilling maps reveals 25,000 miles of underground pipeline in the Gulf of Mexico. The book is a vital resource, pioneering methods that could be used to overcome our inability to imagine the scale of extreme energy production.
Fracking's infrastructure is poised to engulf large stretches of the country. It will challenge legal scholars to refine their analytic tools to address novel and systemic risks. A few of these risks include: (1) Rural gas field ozone (because of fracking, ground-level ozone is no longer strictly an urban concern, as VOCs, fugitive methane, and nitrogen oxides mix and spread up to 200 miles); (2) Urban gas fields (Fort Worth will be the first, with around 6,000 wells drilled in the area and infrastructure within steps of homes); (3) Evaporation pits and other toxic chemical storage as future Superfund sites (the literature suggests that these have "rarely been examined to ascertain their chemical contents"); (4) Orphaned infrastructure that must be plugged, reclaimed, or otherwise addressed (a good percentage of abandoned wells leak, often due to poor cementing or corrosion); (5) Communication events (where fractures from one well reach another and threaten its integrity); (6) Exponential decay in well productivity and the investment practices that may increase the number of wells drilled to offset declines; and (7) Regional and global impacts such as water shortages, climate-forcing from methane leakage, and rapid change in rural landscapes. New species and scales of risk will strain environmental federalism arguments, which David Spence and Michael Burger applied to fracking and Robin Craig expanded to address links between water and energy policy. We need to account for the broader infrastructure of fracking in these debates. We also need to grapple with the fact that state agencies are ill-equipped to handle its expansion, and the halting pace of diffusion of best practices to counter its risks.
Then there is the matter of human health. Claims that water supplies are completely safe from fracking are just not true. For example, letters from the Pennsylvania Department of Environmental Protection, released under court order, included 161 impacted water supplies from 2008 to 2012. Impacts included "methane contamination, sediment, and frack water spills from the surface. Methane migration is the leading cause of damage." Well blowouts and spilled fracking fluids are easy to find. This is to say nothing of air quality. I'm working with a research team on air sampling near fracking sites in several states. We agreed not to disclose the data in advance of publication, but I can say that some of the results show levels that are immediately dangerous to life or health. Most recently, a peer-reviewed study from Duke compared samples from water wells within one kilometer of active drilling to samples from areas with no active drilling. Methane concentrations were several times higher in the active drilling areas. The study took pains to distinguish between naturally occurring methane near the surface and deeper shale gas disturbed by drilling.
While these studies are critically important, a broader issue does not get enough attention in law reviews: the kinds of data that simply do not exist about fracking. A previous Duke study pointed out some of them, including the mechanisms of methane contamination and its health effects. There are many others, as debates over fugitive methane leakage rates and their impact on climate change suggest. There are little or no data on soil contamination near fracking sites. Water monitoring systems are sparse or nonexistent. Comprehensive data on spills are unavailable, or have to be pieced together. Health effects cannot be gleaned from Material Safety Data Sheets (MSDSs) alone, even for chemicals in fracking fluids that are not protected as trade secrets. One study had to combine MSDSs, toxicity data from several databases, Tier II reports filed under EPCRA, accident and spill reports, and studies in the broader literature to identify 944 products used in fracking fluids. It noted that "pathways that could deliver chemicals in toxic concentrations at less than 1 part per million are not well-studied, and many of the chemicals on the list should not be ingested at any concentration." States often do not gather data on water sources or water quality before fracking. Baseline data are woefully inadequate. Social scientists study the root causes of this "undone science," the distortion of research fields over time. Abby Kinchy and Simona Perry were the first to apply this literature to fracking, as part of an excellent workshop held at the Nicholas School of the Environment. Research on the legal drivers of undone science is desperately needed. Its importance is underscored by EPA's decision not to seek peer review of its water study in Pavillion, Wyoming.
If a detour through unconventional energy, the landscape of fracking, and novel and systemic risks does not cure your fracking fatigue, the Duke study and EPA's decision in Wyoming offer a disquieting juxtaposition. The Duke study shows that it is not easy to measure and track groundwater contamination from fracking. EPA spent a considerable amount of money to do just that, finding chemicals in test wells that were "the result of direct mixing of hydraulic fracturing fluids with groundwater in the Pavillion gas field." In the absence of peer review, the state will look into the matter. Meanwhile, ATSDR tells residents not to drink, cook with, or bathe in tap water. A similar turn of events in Pennsylvania and Texas should motivate you to get back to work.
Posted by Gregg P. Macey on July 12, 2013 at 05:26 AM | Permalink
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