Toxic Tort and Energy & Utilities Alert
December 2008
Author:
Clifton T. Hutchinson
+1.214.939.5444
cliff.hutchinson@klgates.com
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Junk Science Meets Hydraulic Fracturing:
Unfounded Environmental Scare Threatens
Energy Development
Faced with volatile petroleum and gasoline prices, limitations in proven domestic reserves,
and instability in key regions of hydrocarbon supply, Americans have a greater need for
robust domestic energy development than ever before. America’s oil and gas industry has
responded to this need, with the identification of new natural gas reservoirs, such as the
Haynesville Shale in Louisiana and the Marcellus Shale under the Appalachians. Both
resources have increased the nation’s potential gas reserves by trillions of cubic feet in
just the last two years.
As the industry moves to bring these new resources into production, however, some
environmental groups, with no scientific support, are urging regulatory authorities to
restrict or even bar further development.
Opponents to the development of these resources focus on an industry technique called
hydraulic fracturing, or “fracking,” used by drillers to extract natural gas from tight rock
formations deep within the earth. Studies by experts working for independent governmental
agencies conclude that fracking poses no environmental threat when properly designed and
implemented and serves to free up clean-burning natural gas that is a “green” answer to
the nation’s energy needs. Based on known science and regulatory requirements already
in place, challenges to hydraulic fracturing appear to be specious.
Hydraulic Fracturing
The first hydraulic fracturing treatment was used on a gas well in Grant County, Kansas
in 1947. Since that time, fracking has become a standard methodology for improving the
production of oil and gas wells. The process involves the pumping of a fluid into the well
at a high pressure to create cracks or fractures in the producing rock formation. In many
cases, a propping agent, or “proppant,” normally sand, is injected with the fluid to “prop
open” the fractures to allow more complete production of the oil or gas.
Like any “down-hole” process, fracking is regulated to preclude contamination of usable
water formations. For many decades, state authorities have required1 oil and gas wells
to be sealed from the surface to well below water-bearing strata so that no production
fluids or hydrocarbons could contaminate potential water supplies. Such environmental
protection is enhanced in the fracking process used for gas-bearing shale formations,
because the strata are typically very deep, thousands of feet removed from any potentially
usable water.
1 See, e.g., Texas Railroad Commission Rule 3.7: “Whenever hydrocarbon or geothermal resource fluids are encountered in any
well drilled for oil, gas, or geothermal resources in this state, such fluid shall be confined in its original stratum until it can be
produced and utilized without waste. Each such stratum shall be adequately protected from infiltrating waters. Wells may be
drilled deeper after encountering a stratum bearing such fluids if such drilling shall be prosecuted with diligence and any such
fluids be confined in its stratum and protected as aforesaid upon completion of the well. The commission will require each
such stratum to be cased off and protected, if in its discretion it shall be reasonably necessary and proper to do so.”
Toxic Tort and Energy & Utilities Alert
Unfounded Environmental Claims
“Junk” Toxicology
In its recent evaluation of the fracking process, the
United States Environmental Protection Agency
(“EPA”) found no confirmed evidence of contamination
of drinking water, despite the fact that thousands of
wells are fractured every year.
2
In 1994 an environmental group successfully petitioned
the EPA to regulate fracking for coal bed methane.
In response, the EPA investigated the potential for
fracking to contaminate underground sources of
drinking water (“USDWs”). The resulting study found
no environmental threat.
“Based on the information collected and reviewed,
EPA has concluded that the injection of hydraulic
fracturing fluids into coalbed methane wells poses little
or no threat to USDWs and does not justify additional
study at this time.”3 The EPA determined that much
of the fracking fluid was recovered and any remaining
in the underground formation would naturally disperse
or biodegrade.
The production of gas from shale resources is even
more unlikely to threaten water supplies, as these
shales are typically much deeper than coal bed methane
formations, and isolated from drinking water aquifers
by thousands of feet of impermeable strata.4 Some
environmentalists, however, continue to complain, by
issuing publications with lurid headlines like “What
EPA and the Oil and Gas Industry Don’t Want Us
to Know About Hydraulic Fracturing,” and calling
fracking a “toxic” technique and fracking fluids – over
99% pure water – a “toxic spew.” These groups seem
to concede the dearth of evidence of any contamination,
but demand more restrictive regulations nonetheless.
Their transparent goal is not safe and efficient oil and
gas production, but the halting of domestic energy
development altogether.
2 E
PA, Office of Ground Water and Drinking Water, No. 816-R-04-003,
Evaluation of Impacts to Underground Sources of Drinking Water by
Hydraulic Fracturing of Coalbed Methane Reservoirs (2004).
3 Id. at 7-5. State regulatory authorities have also found no evidence of
environmental impacts. Brian Macke, director of the Colorado Oil and Gas
Conservation Commission, said that his agency had tested numerous wells
after residents complained. “In any investigations we’ve made in Colorado,
we’ve never determined there have been any impacts from any hydraulic
fracturing operation by any of the constituent chemicals.” Reported in 115
Environmental Health Perspectives A76 (Feb. 2007).
4 See J. Daniel Arthur, et al., Hydraulic Fracturing Considerations for Natural
Gas Wells of the Marcellus Shale, The Ground Water Protection Council,
2008 Annual Forum.
The argument theorizing a drinking water threat, and
the need for more federal regulation, derives from
purported toxicological analyses of fracking fluids.
But fracking fluids are typically 99% water, and the
proppants are non-toxic grains of sand. Drillers use
small amounts of gels with different formulas that add
viscosity to allow the water to carry the sand. The most
common material used as a gel is guar, a substance
made from guar beans, although small amounts of
other substances may be used.
Relying on material safety data sheets for the fracking
fluid components, activists allege that since some of
the gel materials can be toxic at high levels, then the
fracking fluid itself presents a hazard to human health.
They posit that a toxicological effect for a pure amount
of a substance can equate to potential effects for a
trace amount within another compound. That theory,
of course, violates the basic tenet of toxicology, that
dose makes the poison. Any substance, even oxygen or
pure drinking water, can be toxic at some dose, but the
hazard doesn’t arise without that level of exposure.5
This theory also runs afoul of the key element in risk
assessment: there is no toxic hazard in the absence
of exposure.6 Fracking fluids are injected into rock
formations thousands of feet underground where there
could be no pathway of exposure to the surface. The
presence of small amounts of a hydraulic gel thousands
of feet under impervious shale layers thus could pose
no threat, as the EPA recognized, because no person –
and no wildlife – could ever be exposed, and certainly
not at a toxic level.
5 See M. Alice Ottoboni, The Dose Makes the Poison: A Plain-Language
Guide to Toxicology, at 29, 31, 43 (2d ed. 1991).
6 See Elaine M. Faustman and Gilbert S. Omenn, Risk Assessment, in
Caserett and Doull’s Toxicology: The Basic Science of Poisons, at 96
(Curtis Klaasen, ed., 6th ed. 2001).
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Toxic Tort and Energy & Utilities Alert
Proposed Regulation
Following the publication of the EPA’s 450-page study
in 2004, Congress exempted fracking from regulation
under the EPA’s underground injection control program
and by the Safe Drinking Water Act. Congress had
a bill in its last session, H.R. 7231,7 that would have
removed the exemption, and some activists may urge
such regulation.8
With no scientifically valid argument for the
environmental claims, however, Congress should not
restrict a technology vital to America’s energy needs.
As Senator Jeff Bingaman, D-N.M., chairman of the
Senate Energy and Natural Resources Committee,
stated in 2002, “hydraulic fracturing . . is a valuable
tool in reducing our dependence on foreign energy
7 A
Bill to repeal the exemption for hydraulic fracturing in the Safe Drinking
Water Act, and for other purposes, H.R. 7231, 110th Cong. (Sept. 29,
2008).
8 See Judith Kohler, Election May Bring Hard Look at Oil-Gas Exemption,
cbs4denver.com (Nov. 27, 2008).
supplies.”9 Hydraulic fracturing as used to produce
natural gas from shale formations has opened up vast
new resources of clean energy, without damaging the
environment. Recent development activities show
that natural gas production from shale can coexist
comfortably with other uses of the environment,
even in densely populated areas. As observed by
one industry commentator, further regulation of this
extraction methodology is simply “an answer looking
for a problem.”10
Quoted in Kathleen Sgamma, Hydraulic Fracturing is Safe, Key to Energy
Goals, denverpost.com (Dec. 1, 2008).
10 See statement by Doug Hock, spokesman for Encana Oil and Gas, quoted
in Kohler, cbs4denver.com.
9
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