Environmental Injustice Letter on Impact of Shale Gas Drilling

The Center for Constitutional Rights and Columbia Environmental Law Clinic submitthis letter to provide background on hydraulic fracturing in the United States. The Center forConstitutional Rights is dedicated to advancing and protecting the rights guaranteed by theUnited States Constitution and the Universal Declaration of Human Rights. CCR is based inNew York but works throughout the United States and internationally to promote and protecthuman rights. Supervised by clinical faculty, Columbia Environmental Law Clinic studentsrepresent local, regional and national environmental and community organizations working tosolve critical environmental challenges facing the New York metropolitan region as well as otherparts of the world. The Clinic is part of a team of lawyers from local, state and nationalorganizations who bring their legal resources to address impacts of gas drilling in the MarcellusShale, a shale formation that cuts across New York and Pennsylvania. This joint letter withbackground and recommendations identifies substantial deficiencies in the U.S. Government’sregulation and monitoring hydraulic fracturing.

In the last several decades the United States has experienced political and economicpressure to decrease its dependence on foreign fossil fuels and increase domestic fossil fuelproduction. New technological developments have allowed the fossil fuel industry to extractnatural gas from shale resources previously thought too expensive and difficult to tap. One suchdevelopment, hydraulic fracturing, has been used in the industry for over 60 years and is nowutilized in around 90 percent of the nation’s oil and gas wells.¹ The process involves injectingwater, chemicals and natural materials into the well to release trapped gases. Unfortunately,government regulators and industry leaders have historically ignored the substantial health and welfare costs associated with the process.² Government regulators and industry leaders havehistorically ignored the substantial health and welfare costs associated with the process.Residents living in areas near fracturing sites have higher incidents of cancer and have reportedthat water itself is often discolored, pungent and contains bubbles because of the high levels ofmethane gas.³

Demo: PA Wastewater Spills by County Click to work with map.

The most substantial risk associated with hydraulic fracturing is massive water sourcecontamination in regions where the process is employed. Residents in such jurisdictions havereported drinking water contamination in every state where hydraulic fracturing wells exist;sometimes so severe that flammable tap water caused homes to explode.⁴ In a two and a half yearperiod, hydraulic fracturing operations committed around 1,500 violations of Pennsylvania oiland gas law alone, all of which potentially endangered local water quality and many of whichwent un-publicized.⁵ State and Federal agencies have declared the drinking water in several ruraltowns, like Dimock, Pennsylvania and Pavilion, Wyoming undrinkablecontaminants used in near-by hydraulic fracturing operations.⁶

The impacts of such contamination risks disproportionately affect rural, economicallyunderdeveloped communities throughout the country. Water withdrawal and contaminationdisproportionately impacts farmers and fishermen. Politics and economics make it substantiallymore likely that hydraulic fracturing wells will be located in rural regions. Local communities inrural areas throughout the United States are more likely to agree to the environmentallydestructive practices of the fossil fuel industry in exchange for the promise of economicstimulation because they have less diverse economies. Large urban metropolises are betterequipped to resist pressure from the natural gas industry. For example, despite the existence ofvaluable Marcellus Shale Resources in the region, the New York City Department ofEnvironmental Protection has declared that, “hydraulic fracturing poses an unacceptable threat tothe unfiltered water supply of nine million New Yorkers and cannot safely be permitted with the New York City watershed.”⁷ One of the strategies employed by the City of New York topreserve the quality of water is to acquire key plots of land surrounding the watershed so theymay be protected from hydraulic fracturing operations. This might prove too costly for othermunicipalities, especially those in economically disadvantaged areas.

The placement of natural gas extraction in rural areas increases the likelihood that the watercontamination will go undetected because rural water supplies are difficult to monitor. TheEnvironmental Protection Agency (EPA) of the United States has more stringent water qualityreporting requirements for suppliers providing to 10,000 or more consumers (metropolitansuppliers),⁸ and the EPA lacks jurisdiction to monitor private water wells.⁹ As a result,contamination due to hydraulic fracturing can go largely undetected in rural areas.

The negative effects of hydraulic fracturing may also disproportionately affect indigenouspopulations. Many of the largest shale deposits with developmental potential reach into triballands, which tend to be rural, underdeveloped and susceptible to promises of economicdevelopment. Even if wells are not drilled on tribal lands, wells in neighboring rural lands couldstill impact the water supply of tribes. Many tribes have expressed a deep moral opposition to thepractice of hydraulic fracturing.¹⁰

While state and municipal regulation of hydraulic fracturing does exist, federal law isseverely deficient. In 2005, Congress exempted hydraulic fracturing in the oil and gas industryfrom being regulated under the Safe Drinking Water Act.¹¹ This is the only industry allowed to inject known toxins into the ground near water supplies without any federal oversight. Wastesgenerated during the production of natural gas are categorized as “special wastes” and thus areexempt from regulations that cover “hazardous wastes” under the Safe Drinking Water Act.Furthermore, many of the chemical mixtures injected into ground water supplies are protected bylaws governing “trade secrets”, making it impossible to definitively identify the hydraulicfracturing as the cause of the deterioration of water quality.

Recommendations

• FRAC Act) (H.R. 2766) (S. 1215),which aims to repeal the exemption for hydraulic fracturing under SDWA and wouldrequire complete disclosure of chemicals used in the hydraulic fracturing process. TheBill was introduced to both houses on June 9, 2009.¹²
• State governments must continue to actively monitor and regulate the industry and theEPA must seek to ensure maximum monitoring of water contamination in hydraulicfracturing regions. The U.S. Government should increase and supplement currentmonitoring of water sources near coal bed methane sites where increasing levels ofmethane have been documented.
• Congress should repeal the exemption for hydraulic fracturing from the purview of theSafe Water Drinking Act (SWDA), and regulate hydraulic fracturing under section 1425of the SWDA, since all other extractive industry injection activity has been regulatedunder the flexible terms of that provision for decades.
• Congress should ensure greater transparency on all levels of the industrial and regulatoryprocesses, by requiring public disclosure of chemicals used in hydraulic fracturing, whichcurrently is considered a trade secret.
• Congress should ratify the International Covenant on Economic, Social, and CulturalRights (ICESCR) protecting the right to water.¹³

Please contact Susan Kraham with any further questions or concerns at (212)854-5008 orskraha@law.columbia.edu. Thank you for your attention to this matter.

This letter was originally sent to:

Dr. Catarina de Albuquerque
Independent Expert on the Issue of Human Rights Obligations
Related to Access to Safe Drinking Water and Sanitation.
ESCR Section
Human Rights Council and Special Procedures Division
Palais des Nations
CH-1211 Geneva 10, Switzerland

Sincerely,

Susan Kraham, Senior Staff Attorney
Lauren Daniel, Student
Surya Binoy, Student
Columbia Environmental Law Clinic
435 W. 116th St.
New York, New York 10027

Rachel Meeropol
Sunita Patel
Krystle Gan
Center for Constitutional Rights
666 Broadway, 7th Floor
New York, New York 10012

References

¹Riverkeeper Report, Fractured Communities: Case Studies of the Environmental Impacts of IndustrialGas Drilling, 3 (Sept. 2010) available here.
²See Environmental Protection Agency, Hydraulic Fracturing Research Study Fact Sheet (June 2010)available here (PDF). The final EPA Report’s anticipatedrelease is in 2012.
³ E.g., Laura Amos, Garfield County, Co: Family’s Water well was contaminated after hydraulicfracturing near home, EARTHWORKS, here (last visitedFeb. 22, 2011).
⁴The Ohio Department of Natural Resources Determined that a December, 2007 explosion at aBainbridge, OH home was cause by a high-volume hyradraulic fracturing operation in the nearby“Clinton” sandstone formation. Natural Gas migrated through the fractures into nearby acquifers and theninto local water wells fed by the aquifers. Report on the Investigation of the Natural Gas Invasion ofAquifers in Bainbridge Township of Geauga County, Ohio (Sept. 2008), available here.
⁵Riverkeeper Report, supra, note 1 at 5.
⁶ For a discussion of major reported instances of water contamination nationwide, see Riverkeeper Report, supra, note 1.
⁷Press Release, New York City Department of Environmental Protection, Department of EnvironmentalProtection Calls for Prohibition on Drilling in the New York City Watershed (Dec. 23, 2009), available here.
⁸Safe Drinking Water Act of 1974, 42 U.S.C. §300g et. seq. (2004).
⁹42 U.S.C § 300g; US Environmental Protection Agency, Report on the Environment: Drinking WaterQuality (accessed Feb. 22, 2010), Here (“Private wells, cisterns, and other non-public water supplies are not subject to federalregulation…no national infrastructure, and few if any systematic state efforts, currently exist to collectdata on trends in the quality of these supplies.”).
¹⁰For example, the Haudenosaunee Environmental Task Force, a comprehensive indigenous responseorganization, has stated that, “The Haudenosaunee have a unique spiritual, cultural, and historicrelationship with the land…when humans tinker more and more with the natural balance, we do so at theperil of our grandchildren. In few cases is this more apparent than the proposed method of natural gasdrilling known as hydraulic fracturing or ‘hydrofracking’.” Haudenosaunee Statement on Hydrofraking: More.
¹¹Energy Policy Act of 2005, Pub. L. No. 109-58, § 1(a), 119 Stat. 594 (2005). Paragraph (1) of section1421(d) of the Safe Drinking Water Act (42 U.S.C. 300h(d)) is amended to read as follows: (1)UNDERGROUND INJECTION – The term ‘underground injection’ – (A) means the subsurfaceemplacement of fluids by well injection; and (B) excludes – (i) the underground injection of natural gasfor purposes of storage; and (ii) the underground injection of fluids or propping agents (other than dieselfuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities.
¹²The summary and status of this bill in both houses can be found at http://thomas.loc.gov/cgi-bin/bdquery/z?d111:H.R.2766 (site not presently working) (House); and here (Senate).
¹³The United Nations Human Rights Council derived the right to water implicitly in the Article 11 rightto “an adequate standard of living, particularly since it is one of the most fundamental conditions ofsurvival.” U.N. Comm’ee Econ. Soc. & Cultural Rights, Substantive Issues Arising in theImplementation of the International Covenant on Economic, Social and Cultural Rights, GeneralComment No. 15, U.N. Doc. E/C.12/2002/11 (2003), available here.

Additional Resources

• Statement of Lisa P. Jackson Administrator, U.S. Environmental Protection Agency Legislative Hearing on EPA’s 2011 Budget Proposal Senate Committee on Environment and Public Works – Read