Hydraulic Fracking

Hydrofracking involves forcing a mix of water, sand, and chemicals down a gas or oil well under extremely high pressure with the goal of cracking previously impermeable rock (typically shale) to create fractures that will allow trapped oil gas deposits to flow to the surface.

Important take-aways
What are the acts or statutes that could regulate hydrofracking? What individual sections, of each act, are applicable?
What causes of action have or can be used in cases surrounding hydrofracking? How do politics effect the regulation of fracking?

The Process

Possible - effects?
Neglected Surface Pumps
Unlined storage pits Insufficient or improper casings New fracture release methane Methane (asphyxiant/explosion hazard) (although CO2 levels have decreased between 2005 to 2010, methane emissions rose)

Large amounts of water used during process

Air Pollution from transportation vehicles

Benefits?
Provides an overabundance of cheap fossil fuel
U.S. a future exporter? U.S. independence from foreign oil.

Jobs/Revitalization of weak economies in rural areas.

Unlike Coal, natural gas burns without spewing sulfur dioxide, mercury, or particulates into the air or leaving ash behind. Emits only half as much of Carbon Dioxide.

Regulatory Challenges EPA

What was EPAs reasoning for the Safe Drinking Water Act (SDWA)/Underground Injection Control Program (UIC) not including hydrofracking?
What did the EPA Report (2004) say about hydrofracking?

Regulatory Challenges
Legislative Branch
The Energy Policy Act (EP) of 2005- What effect did the Act have on federal regulation of fracking? Local level regulation?
Fracturing Responsibility and Awareness of Chemicals Act (FRAC) of 2011

Regulatory Challenges:
State legislature
MD moratorium until 2013 and the completion of the proposed EPA studies.
NJ March 2011 proposed a bill prohibiting fracking in the state for the purpose of natural gas exploration and production. PE In 2010, Governor Rendell signed an executive order establishing a moratorium of all oil and gas development on lands owned and managed by the PE Conservation and Natural Resources. In 2011, Governor Corbertt rescinded the executive order established Marcellus Shale Advisory Commission to oversee land permitting and regulation related to fracking.

What about the CWA & CAA?

What provisions under the Clean Water Act could apply to fracking?
What provisions under the Clean Air Act could apply to fracking?

Case Law

Case Law
What causes of action have or could be used in a case contesting hydrofracking? Or, claiming harm from fracking?
How have towns (in Upstate NY) used zoning law to help prevent fracking from coming to their town?

Case law
causes of action protecting hydrofracking

How can gas companies and/or lessees protect their right to hydrofrack?

Anschutz Exploration Corp v. Town of dryden

Article 78 proceeding
Article 78 is the article of Civil Practice Law and Rules, which establishes the procedure for challenging the determinations of administrative agencies, public bodies or officers.

Interveners

Preemption Claims
Two Issues:
(1) Whether the zoning amendment is invalid because it is preempted by the supersedure clause of the OGSML? AND (2) Preempted because it impermissibly conflicts with the substantive provisions of the OGSML?

OGSML Clause

MLRL Clause

How v. where

Purpose of OGSML

Legislative History

Legislative history 2

Precedent
(NOT Binding, but persuasive)

Defendants dont win it all

The Debate in NY State

Hypo

hypo

hypo