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Don’t Board the ‘Fracking Banned’ Wagon

In my last column, I preached patience for those who question the safety of extracting shale gas via fracking. In this month’s column, I profile the growing trend of states and localities electing to ban fracking in response to fears that it might cause groundwater contamination. The availability of cheap, plentiful shale gas is a potential game-changer for the U.S. economy. But that potential could be jeopardized if fracking phobia causes this ban trend to expand.

Hydraulic fracturing – aka “fracking” – is a natural gas extraction technique in which a mixture of water and sand, leavened with a tiny amount of chemical additives, are pumped deep underground through a well-bore to fracture shale rock and release trapped natural gas. This operation requires millions of gallons of water. How to manage the returning flow of this fracking fluid (“flowback”) is one of the central challenges of natural gas fracking. The flowback is briny; it may contain elevated levels of naturally occurring radioactive materials, methane and of course there are those tiny amounts of chemical additives. Some operators dispose of the flowback by injecting it into underground injection wells which are regulated under EPA’s “Underground Injection Control” program. Others treat the flowback to remove contaminants and then discharge the treated flowback, as authorized under Clean Water Act permits issued by EPA or a state environmental agency. The environmental protection that these federal laws promise, however, has not stopped opponents from attempting to ban fracking in their backyards through state legislation and local ordinances. The following summary of such legislative strategies in New Jersey and Ohio illustrates a broader trend of hostility toward fracking.

New York. In December, 2010, the outgoing Governor David Paterson vetoed legislation that would have banned fracking, but then issued an executive order imposing a six-month moratorium on fracking. That moratorium has been extended twice by Governor Andrew Cuomo, pending issuance of regulations by the Department of Environmental Conservation. Meanwhile, one town after another has enacted zoning ordinances permanently banning fracking. The New York Supreme Court recently upheld one of these local ordinances based on the authority vested in town and cities to regulate use of their lands. Anschutz Exploration Corporation v. Town of Dryden, 2012 NY Slip Op 22037 (Feb. 12, 2012).

New Jersey. In August 2011, New Jersey Governor Chris Christie imposed a one-year moratorium on fracking, pending more research into its safety. The Governor’s decision came on the heels of his veto of legislation that would have permanently banned fracking in New Jersey. In February 2012, the New Jersey Senate Environment and Energy Committee approved yet another bill to ban fracking.

Vermont. On May 4, 2012, Vermont became the first state to pass legislation banning natural gas fracking. Spokesmen for Gov. Peter Shumlin said that he will sign the measure into law. The measure also prohibits the import of fracking waste from other states. The House had earlier approved a moratorium, but the state Senate called for an outright ban on fracking, and the Senate’s view prevailed during negotiations to reconcile differences between the two bills. There have not been any fracking operations in Vermont, but there are shale gas formations in northwestern Vermont.

Ohio. Ohio may be the next state to ban fracking. In a March 9, 2012 report, the Ohio Department of Natural Resources (“DNR”) concluded that a dozen earthquakes in northeastern Ohio were “almost certainly” caused by injection of fracking fluids into underground permeable rock formations. The theory is that injected fracking fluids “lubricated” a previously unmapped geologic fault and contributed to seismic activity. The Ohio DNR has proposed a ban on fracking, and is requiring geological reviews before any new wells are approved for disposal of fracking fluid.

If this ban boon broadens, it could threaten what appears to be a transformational source of clean energy for this country. Natural gas is widely viewed as a less carbon-intensive alternative to coal as a power sector fuel (provided fugitive methane emissions are captured rather than released). According to data compiled by the National Energy Technology Lab and Sierra Club, plans for more than 160 coal plants have been shelved, partly due to the growing supply of cheaper natural gas. Cheap natural gas is also a potential game-changer for producers of chemicals, fertilizers and plastics, which use natural gas as an energy source and/or raw material.

But if attempts to ban fracking gain momentum, it could undermine the potential of shale gas to spur economic growth as we transition to renewable fuels. Bans are wild cards; they can render worthless a valuable investment in mineral rights. Such uncertainty is anathema to businesses considering an investment in shale gas development. The potential for bans to spread should not be underestimated; it appears to be a movement and it is getting organized. Every day, it seems another website appears, containing libraries of successful anti-fracking legislation and ordinances and educating communities how to adopt fracking bans. Check out “Food & Water Watch” (http://www.foodandwaterwatch.org/water/fracking/fracking-action-center/local-action-documents/).

States that are passive risk losing control of the debate to the “ban fracking” advocates, and missing out on the jobs and tax revenue that shale gas fracking can create. States hoping to head off anti-fracking advocates must be proactive: they must educate the public on the scientific advances in fracking and encourage adoption of responsible regulatory schemes, rather than outright bans. Proactive states may even garner support from members of the shale gas exploration industry who are beginning to recognize that such regulation could help level the playing field.

Peter L. Gray is a partner with McKenna Long & Aldridge LLP, where he chairs the Environment, Energy and Product Regulation Department.

Peter Gray
Peter Gray is a partner in the Washington, D.C. office of McKenna Long & Aldridge LLP. Gray chairs the firm’s Environment, Energy & Product Regulation Department and co-chairs the climate change practice. Gray can be reached by email at pgray@mckennalong.com.
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28 thoughts on “Don’t Board the ‘Fracking Banned’ Wagon

  1. Thanks for the informative article Peter. Human nature is to progress, yet many want us to regress to meet an environmentally unsound agenda.

  2. I’m on the Town Planning Board for a rural NYS township. It’s not just about the water. It’s also about the dramatic increase in heavy truck traffic, 24-7 lighting and compressor noise, liability for land-owners that is not covered in the leases, compulsory integration of non-leased parcels and man-camps that all add up to changes to our rural landscape that is not in step with our local comprehensive plan. Potential water contamination is the lightening rod issue but there are so many more issues that occur away from the drill pads. Don’t stop at the simple “it’s all about the water but we can drill safe” argument. Drill deeper [pun intended] into why moratoriums are spreading.

  3. Peter:
    Your tone seems to be set for a more pro-natural gas forum. Why would you promote fracking? It’s not environmentally friendly. It releases serious amounts of methane (25x worse than CO2); it creates earthquakes; it destroys aquifers; its not renewable. Please change your perspective and actually be an environmental leader and not a follower of fossil fuels.

  4. ” Ohio DNR has proposed a ban on fracking”

    **Really** – that would be big news, if it were actually true. It’s possible that the Ohio DNR proposed a ban on fracking fluid disposal. I seriously doubt they proposed a ban on fracking itself.

    Do you have a link to confirm this ” Ohio DNR has proposed a ban on fracking” notion? Because it looks like misinformed nonsense to me.

  5. It would also be interesting to read an informed legal opinion of these “fracking bans”. I seriously doubt they will withstand the scrutiny of a thorough appeals process. Perhaps the SCOTUS will weigh in, but it’s more likely these bans will simply be overturned before the appeals process goes that high.

    Mineral rights are constitutionally protected. Read Mahlon v Penn Coal

    The fractivists are deluding themselves. The sad thing is that if/when their bans are overturned in the courts, they will lose all leverage to negotiate with the drilling companies – and thus the “ban fracking” areas will ultimately see more intensive fracking than the states that are embracing drilling and negotiating drilling rules and regs.

  6. I’m quite disappointed by this and your previous article and am not sure why such an editorial is in the Environmental Leader.

    You herald fracked natural gas as a great cheap, abundant and clean energy source but hardly address any of the real concerns that have been expressed. You don’t seem to have any concern that the industry won’t reveal the chemicals it is using. You use dismissive terms like “small” amounts of chemicals are used, arguing that 99.5% is water and sand so the remaining 0.5% is so small. Yes, but it only takes parts per billion of some chemicals (not parts per hundred) to contaminate water. You imply that “treated” flowback is just fine. You don’t acknowledge the Wild West Boom in places like Colorado, with drilling right next to schools and neighborhoods. You don’t talk at all about new studies showing that contamination is already taking place. And how about all the methane that’s released?

    You don’t seem to express any concern about the thousands of bad actors out there, which I think would be a concern for an attorney.

    But maybe they’re not a concern for you because perhaps they are your clients.

    Which raises the real question. Who are your clients and why didn’t you disclose them?

    In looking at your website under your “Notable Engagements” you herald that you worked for a multinational munitions company to fend off “dozens of federal and private cost recovery cases filed against the company on Superfund litigation.” Congratulations.

    You also represented a Fortune 500 Company in Natural Resource Damage action filed by the New Jersey Department of Environmental Protection. Well done.

    And then you “Defended numerous Fortune 500 and multinational corporations in enforcement actions brought by state agencies and EPA under the Resource Conservation and Recovery Act (“RCRA”) and “Represented numerous companies in enforcement actions brought by the U.S. Department of Transportation under the Hazardous Materials Transportation Act”.

    That’s sounds like a real environmentalist. In the future I hope you’ll write pieces for your industry publications and if you write something here do full disclosure of your clients if you’re talking about fracking.


    Just reading

  7. Bear in mind the people who think vaccines cause autism and GMOs cause cancer are well organized, have websites and official groups, etc. That doesn’t mean they have much effect on adult behavior, in sum.

  8. I love finger pointers. Each argument comment is somewhat informed and reasonably sarcastic. However, each supporting comment throws insults and childish responses…funny how we avoid the truth. I dare any of you who support fracking to have a plant installed in your neighbourhood, safely installed as the writer states is the industry standard. It clearly seems to the lawyer who fights regulations uses it when it benefits him!
    We will suck this planet dry and kill every living thing in order to pursue our lifestyle. Every one is afraid to admit they are wrong and face the embarassment. When ground water is poison and there are no trucks deliverying bottled water…what will you do? Blame us for not telling you CLEARLY ENOUGH that fracking is bad.

  9. Does the author work for a firm that represents anyone or any organization that would benefit from increased fracking?

  10. “If this ban boon broadens, it could threaten what appears to be a transformational source of clean energy for this country.”
    1-Shale gas is not a clean energy source, when the extraction process is factored in it is on par with coal. (independent peer reviewed studies have been published- see Howarth)
    2-Shale gas is not an energy source that is slated to stay in this country. Ports are switching from import to export capacity, new export facilities are on the table. Even the disgraced(ful) Abrey McClendon has told analysts the Holy Grail for the gas industry is to have global gas pricing. Goodbye $2 gas and hello “bait and switch”

    “McKenna Long & Aldridge (MLA) clients include industrial and commercial companies in all sectors of the industry: electric and gas utility services, independent power production, power and energy services, marketing and national trade associations, as well as major energy consumers.”
    Mr. Gray- It is as clear as a glass of unfracked water where you stand on this issue. We will keep banning as long as you keep fracking.

  11. I find it notable that the most ardent practitioners of “not-in-my-backyard”, a.k.a. NIMBY, are those of wealth and means. Generally, those of wealth and means come from the “professional” or “managerial” sector, i.e. lawyers, doctors, financial moguls and corporate officers. In addition, they seem to flock together in semi-exclusive communities.

    Anecdotal evidence gathered from reading many, many posts on websites both liberal, moderate, and conservative seems to indicate that the closer the perceived “badness”, e.g. fracking, wind turbines, refinery plants, the more reactionary and visceral of responses these semi-exclusive communities exhibit. In many cases, these semi-exclusive communities win absolute bans on whatever “badness” they perceive as approaching their territory too closely.

    It’s like I quote I heard one time: “Socialism for the rich, capitalism for the poor.” That is, the rich get bailed out and exclusions from the rules, while the poor get to enjoy all of dubious benefits of fracking and refinery co-locations.

    Strangely enough, I’ve not seen an indication of where the author lives.

    I’ve lived a few miles away from refineries on the Gulf Coast for nearly a decade and within tens of miles for nearly two decades before that and can certify from first-hand knowledge how totally destructive they are to the lands and air that surround them. Additionally, I find the “superfund” sites in the areas mentioned in the paragraphs above, still unmediated and languishing in disrepair, to be the most pathetically emblematic symbols of an legal and economic system exhibiting large degrees of both private and governmental corruption.

    Mostly, I find those that enable these abusers of the environment to be the saddest of all; for in my early years nearer the days of World War II, Korea, and the Cold War, we schoolchildren were taught a word for those types of people:


    And it wasn’t said in a kind way.

  12. Killing us and our children softly. Your fracking chemicals contain know carcinogens. You disrupt the water table, pollute our air, pollute our water, and rape the last resource America has- the land. Our homes are foreclosed due to contamination, we get sick-cancer sick, we get headaches, asthma, and are exposed to increased radiation. Our infrastructure cannot withstand the heavy trucks and yet we end up with the burden of this cost as well. Short term jobs which lead to desolate towns in a few years. Oh and I forgot to mention paying for the earthquake damage when that happens.

    A healthy and housed workforce equals a good economy.

    Drink the water. Would you give it to your children? Your parents?

  13. It is very apparent which side Mr. Gray represents, big corporate money. I’m just surprised Environmental Leader is publishing his columns… at the same time they publish another article noting the legal loopholes that exempts hazardous oil and gas waste from the same treatment as other hazardous waste… “NRDC found two significant priorities for policy change. The first priority, NRDC says, is to close a legal loophole that exempts hazardous oil and gas waste from treatment, storage, and disposal requirements required for other hazardous waste under the Resource Conservation and Recovery Act.”

    Mr. Gray’s brightest argument is the potential undermining of economic growth. Well, how about we stimulate economic growth in renewable energy sources that won’t sabotage our limited fresh water supplies, that many communities and land owners depend on?

  14. You are correct that fracking will result in “jobs and tax revenue that shale gas fracking can create.” Unfortunately much of this new economic activity will be in the form of new healthcare and funeral costs to deal with the massive, often irreversible toxic effects of fracking. That may not be of any concern to an oil industry shill.

  15. While energy has many alternatives, water does not. Once groundwater deposits are contaminated they may take tens, hundreds and even thousands of years to be usable again. We can do without gas but we can’t do without water. The very least we can do is clearly understand the risks to our water resources and that is not being done. This rush for money has put water at the bottom of the list. Wait until the gas is gone, the water useless and people with health issues…. then see the real value of fracking gas versus a truly invaluable resource such as water. “a game changer”… please. Fracking is externalizing so many costs that any advantages will be offset by substantial harm.

  16. To “Matt”:
    You think contaminating a previously clean aquifer or water source is “progress”?
    Wow… what thoughtful comment.

  17. Amazes me when a supposed “authority” presents such convuluted information. # 1 Fracking is NOT a wise choice for “clean” energy…since it DOES pollute surface and subsurface water,wells, etc,,,, as well as causes mutations in the extracted methane ( from the bonding of lead, mercury, arsenic, radon to the methane results from the arsenic laced water at high velocity that is FORCED into the depths of the increasingly pincushioned Earth….the resultsing FRACKED methane when burned is SIX TIMES MORE POLLUTING THAN BURNING COAL to produce the same amount of electricity…..CLEAN WHAT??..now how about discussing the distruction of the shale beds ( which are a natural cushion to the surface of the Earth from deep level trauma of earthquakes which if NOT cushioned by shale beds will do a great deal more damage than is understood). MONIED INTERESTS would LIKE the American people to remain ignorant of the abuses and excesses that are destroying the natural resources of our once pristine country. we BURY nuclear waste…WHY? ..because it is TOXIC….There are 46,000 oil wells in the gulf of MExico ( between the northern tip of South America and up through Central America along our GUlf coast and to the western tip of Florida…..75% of them are deep level ( like the ONE that blew up and poured millions of gallons of crude into the fragile waters and eco systems dependent on that area of the Gulf)..MONEY talks and common sense WALKS AWAY from the reality and truth. WAKE UP AMERICA!

  18. I am really disappointed that EL let this Natural Gas puppet write such a biased piece. Especially with this audience. You would be much more successful propagandizing somewhere else.

  19. Gas is not all that clean, the jobs will dry up, the waste water will remain toxic as no known facilities or technologies can remove so many toxic chemicals, radiation, brine,etc. We’d be better off to focus on energy efficiency and conservation (we DO have the technology for that), and renewables. I am also disappointed that EL gives voice to this guy, but we have a lively discussion going on here as a result.

  20. Gail – I agree with your opposition to this fracking propaganda article. However, I must disagree with your use of unproven allegations, many of which are probably false, and some of which simply don’t make much sense.
    I am not aware that fracking-released methane is in any way bonded to elements like arsenic, mercury, or lead. Please provide evidence that backs up that statement.
    And this statement is almost certainly false: “FRACKED methane when burned is SIX TIMES MORE POLLUTING THAN BURNING COAL “. Coal naturally contains alot of mercury (burning coal is the main human-related way that mercury is released into the environment). And coal contains twice the amount of carbon per unit of energy released; than does methane. Coal almost certainly is more polluting as an energy source than is fracking-released methane.
    The shale beds are not ‘destroyed’ by fracking – what they are is fractured. Fracturing does not equate to destruction.
    And just where do you get this statement: “the shale beds ( which are a natural cushion to the surface of the Earth from deep level trauma of earthquakes which if NOT cushioned by shale beds will do a great deal more damage than is understood)”? Where is your source? I am likewise unaware of any geologic evidence that deep shale beds somehow significantly “cushion” the effects of deep-level earthquakes.

    I do not believe that debating such issues by using false information and charges; advances in any way the goal of convincing your readership of your position. Quite the opposite, in fact. While oil and gas interests, as well as climate deniers, often resort to lies, distortions, or simple misinformation; people who are opposed to their agendas should not repeat that mistake. The facts are generally on our side – let’s use them instead; and the lies and distortions of others will thereby be exposed.

  21. Boy oh boy… Fracking. Well the author of this post is part those that “live in the bubble”, where what they put forth first is economics, profit and greed – which was the downfall of Rome. “Small amounts of ( ) chemicals” is a BIG concern of ours, which are largely unregulated – which HAS TO change. These biocides are horrific and kill water and the naturally occurring bacteria. “Millions of gallons of water” is also a HUGE concern, where many areas considering fracking do NOT have much water, if any to spare. A quick fix for our dependency on big oil is NOT the answer. If we are all concerned about job creation, imagine the amount of jobs we can create by updating and upgrading our energy infrastructure to get truly clean energy to our archaic grid, such as wind or solar. We are far down the list around the world in quality education, technical innovation, solar research and the like. We need to spend less money on being worldwide police and reduce our military presence, bring our troops home and take just a portion of the billions if not trillions of dollars saved and apply it to these areas of needed innovation and improvement. This would be one of the most sustainable moves of this era. But, because of too large of lobbies and special interest groups, combined with our incredible inefficient government and their non-stop infighting and gridlock, is preventing progress the way it should be. Fracking is NOT the answer and is a temporary and “quick fix” solution to what we should have solved decades ago- too large cars, glutenous energy consuming buildings and industries by converting to more efficient systems and programs. Unfortunately this great country no longer innovates, ships jobs overseas and now is laggardly and follows other country’s innovation. Sad, but true.

  22. Banning any product or practice with reasonably anticipated detrimental affect (PCB’s, Styrene, Fracking) is supported by a legal Doctrine called the Precautionary Principle.

    I suggest Environmental Leader take this approach when soliciting writers and articles for their readership.

    That way, they would avoid publishing thinly veiled articles that are crafted to benefit the environmentally harmful business practices this author/attorney has spent his career defending.

    Notable Engagements

    National coordinating counsel for multinational munitions company on Superfund litigation. In this capacity, Mr. Gray has orchestrated the company’s defense of dozens of federal and private cost recovery cases filed against the company in connection with cleanup of contamination linked to a pesticide which the company sold in the 1960s and 1970s.
    Represented Fortune 500 Company in Natural Resource Damage action filed by the New Jersey Department of Environmental Protection. (NJDEP v. 3M et al.).
    Defended numerous Fortune 500 and multinational corporations in enforcement actions brought by state agencies and EPA under the Resource Conservation and Recovery Act (“RCRA”).
    Represented numerous companies in enforcement actions brought by the U.S. Department of Transportation under the Hazardous Materials Transportation Act.

  23. Thoroughly disappointed with the article and surprised to see it in the Environmental Leader, but grateful for the reader comments.

  24. It would have been wise for Gray to have undertaken some level of useful research before committing to write this article. For a lawyer it presents an incredibly weak, uninformed and naive argument that I am very glad to see has been challenged.

  25. I live in eastern Ohio and have seen first hand the effects of fracking on the environment. I CAN’T use the water in my home. In turn I have stop gardening food. Any one who advocates the safety of fracking should know they will be the ones responsible for destroying all kinds of ecosystems and the lives of innocent people. Hopefully the folks making money from the extractions will feel the effects before it’s too late!!!

  26. Dear Sir:
    I am an environmental leader. You, Sir, are not.
    I live in the Township of Auburn/ Chippewa County/ Wisconsin. I have been
    an advocate against the destruction of our land for the past three years.
    am the bane of my town board’s existence; often a position I relish if I
    can get these leaders to start to think about the long term effects of
    they propose. That the foremost responsibility to their positions is to
    keep the Health, Safety and Welfare of those same citizens first in
    they lead.
    The areas, in which I live, i.e. Wisconsin and Minnesota, environments are
    being destroyed by the industrial sand mining companies which provide frac
    sand to fracing wells all over the country. We are losing agricultural;
    native prairie; forests, hills, bluffs, with pollution of our groundwater,
    streams, rivers and lakes. There have been too many spills into rivers and
    streams and land at this point resulting in pollution. There should be no
    I must address the loss of our precious, clean, clear county air by the
    dust generated from these mines. Our health is affected by the respirable
    crystalline silica dust that is in our air which will and has caused
    problems for many citizens; especially the elderly, our children and those
    whose health is compromised which will worsen over time with exposure to
    this dust.
    This, in addition to the, destruction of our wildlife that will be
    eliminated when raping their habitat and being disbursed into other areas.
    Which, if you are knowledgeable in biology, presents its own
    problems of over population and death to those contracting disease because
    the area which they have been pushed into cannot sustain the addition of
    this burgeoning population?
    These situations now impact our tourism industry along with our hunting
    and fishing income from in state and out of state revenue.
    In our state these riches are being sacrificed for the purpose and sole
    purpose of providing jobs. Most of the employment is truck driving jobs
    which are not high paying. This is not all new job growth as many
    are leaving their employment to purchase new sand hauling and other
    equipment to work for the mining companies only to find that these new
    are not as promised; returning to old work with ‘For Sale’ signs near
    pretty, shiny, new dump trucks in their yards.
    For all the destruction of our environment and detriment of our health. We
    cannot be immune to our losing a valuable way of life that will never be
    returned to us. Perhaps the most precious commodity of all.
    It would be one thing if this country would and could depend on energy
    independence….perhaps the sacrifice to us and our grandchildren would be
    somewhat lessoned. However, that is not the case as our shale oil and
    natural gas is controlled on a global market with it being sold to the
    highest bidder in that market.
    Well, enough said, Dear Environmentalist, you get the picture. It is not
    I personally believe that you mask as an environmentalist but are really
    an attorney who is obviously working for a firm that is representing the
    mining companies. We have you in our towns and cities as well….those who
    are selling their souls for the dollars and expensive ‘things’ that can be
    bought by their earnings. Try working for the other side earning a bit
    money but able to have a sound sleep at night. That is if you have a
    conscious at all.
    I do apologize for what may be perceived as a personal attack. You are not
    being singled out; rather you belong to a whole group of persons who are
    like minded; all of which I attack.
    Again……Sleep well.

    Thank you for your time if you have read this far.
    Heather Andersen/Town of Auburn/Chippewa County/Wisconsin

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