JURIST Guest Columnist Nicolas Parke, Texas Tech University School of Law Class of 2013, discusses the ongoing debate about hydraulic fracturing…

Fracking, fracing, or fraccing? Regardless of how you spell it, “fracking” is a word that more and more Americans are adding to their vocabulary. While many have heard of fracking, few truly understand the actual process of fracking: the scientific process of actually injecting fluids at high pressure into rock formations for the purpose of extracting fossil fuels. The negative perceptions of fracking, including the consequence of tap water catching on fire when a match is lit near the faucet, have caused many opponents to call for an all-out ban on fracking operations across the country. Instead of advocating for polar stances on the issue of fracking, both sides should pursue efficient regulations that target where fracking has the potential to adversely affect the environment.

Before anyone can argue for or against hydraulic fracturing, it is crucial to understand the process of fracking. Fracking is the process of putting extreme pressure on a rock formation with the intent of cracking it. Fracking is not a new technology. Drilling companies utilized fracking as early as the 1940’s and the crudest form of fracking — sticking explosives down a well to increase rock permeability — was a prevalent practice much earlier. Typically, fracking jobs consist of combining large amounts of water with sand and chemicals — also known as fracking fluid — that are pumped down the well and pressurized to cause fissures in the rock. The fracking fluid is then pumped into these fissures in order to lodge sand in the fissures to hold them open once the pumping stops and the water flows back up the well. Fracking transforms otherwise impermeable rock into permeable rock capable of allowing oil and natural gas to flow freely towards the well.

The image of a man lighting a match and igniting the running faucet in his kitchen makes for good television and should be a cause for concern for any person watching. When people attack fracking for its potential to contaminate groundwater, many point to such scenes in documentaries like Gasland as proof of the harm caused by fracking. The theory advanced by documentaries such as Gasland is that the fissures caused by fracking allow natural gas and chemicals in the fracking fluid to flow naturally up into the groundwater aquifer thousands of feet above the drilling formation. These documentaries, however fail to discuss that natural gas was present in the water before any drilling company began fracking. Many groundwater aquifers naturally contain some levels of natural gases, specifically methane. Thus, it is likely that even if fracking had never occurred in the area where Gasland was filmed, the tap water in the region could still be flammable. The real perplexing question is why oil companies have failed to educate people about this fact. What makes it worse is that a solution is readily available. The logical thing for oil companies to do is taking steps to ensure that local groundwater wells are properly vented before they begin any fracking operations in the area. This would not only reduce the perceived danger associated with fracking, but would also generate good publicity for an industry still recovering from recent catastrophes, such as the Deepwater Horizon.

While dramatic scenes of water catching on fire probably score opponents of fracking cheap points with the public, it detracts attention away from where the actual concern with fracking should rest. The biggest threat fracking poses to groundwater comes not from the actual fracking of a rock formation thousands of feet underground, but, instead, from drilling companies improperly casing and sealing wells. Specifically, casing refers to inserting a large-diameter pipe into a recently dug well and typically involves anchoring the pipe in cement. This process provides extra protection to prevent fracking fluid and fossil fuels from escaping into an aquifer as it travels up and down the well. If this process is done correctly, the threat to groundwater is minimal. However, like any booming industry, the desire to drill and start producing quickly presents the opportunity for drilling companies to take ill-advised short cuts, including not ensuring that groundwater aquifers are sufficiently sealed off from the well. While this is no doubt a serious concern, negligent operations are hardly a new phenomenon for any industry experiencing a historic boom. The key is not banning fracking altogether — as some environmental groups suggest — but, rather, enacting effective regulations that will deter oil companies from taking advantage of any short cuts. Recently, these issues of casing and sealing wells have been finding their way into the US legal system. In Roth v. Cabot Oil & Gas Corp., the plaintiffs in the case are alleging that improper casing of a well led to natural gas migrating up the well and into the local groundwater.

Governmental agencies and officials have been searching for a solution to these allegations of fracking operations contaminating groundwater. One promising regulation [PDF] involves the inclusion of tracers in fracking fluids. Tracers are non-toxic, magnetic compounds that scientists can uniquely identify even in large quantities of water. The promising potential of including tracers is that it has the potential to solve the problem of accountability. Currently, lawsuits against an oil company alleging that fracking caused groundwater contamination are typically dismissed because they cannot prove a link showing that fracking operations caused the contamination. The addition of a unique tracer compound would allow those filing suit to prove that the contamination came from a particular drilling company. Consequently, drilling companies would be more inclined to make sure that proper casing and cementing rules were followed to protect groundwater aquifers. Further, the costs associated with including a tracer are minimal, and thus, ensuring that oil companies are not burdened with onerous and ineffective regulations. Therefore, tracers provide an example of a way to regulate fracking in a safe manner while still allowing oil companies and the public to realize the many benefits provided by fracking.

Another positive regulation involves requiring drilling companies to disclose the chemical proppants that they use in their fracking fluid. Texas recently enacted Statewide Rule 29, which requires companies utilizing hydraulic fracturing to disclose the chemicals they add to their fracking fluid online at fracfocus.org. Like the use of tracers, disclosing these chemicals allow interested parties to have knowledge of what they should watch out for in groundwater should it ever become contaminated. Furthermore, the cost associated with disclosing such information is minimal.

While environmental concerns are always present when oil and gas operations occur, fracking has received an unwarranted bad reputation. Neither proponents nor opponents of fracking have focused on educating the public on what fracking actually entails. It is true that fracking does pose some environmental risks, but smart governmental regulation can mitigate the harms while still allowing everyone to benefit from the increased domestic energy supply provided by fracking operations.

Nicolas Parke is the Lead Articles Editor for the Texas Tech Law Review.

Suggested citation: Nicolas Parke, Focusing on Real Issues: Debunking the Rumors Surrounding Hydraulic Fracturing, JURIST – Dateline, Mar. 3, 2013, http://jurist.org/dateline/2013/02/nicolas-parke-fracking-regulation.php