Pace Perspectives: Hydrofracking

Dean Emeritus of Pace Law School Richard L. Ottinger is the co-director for the Center for Environmental Legal Studies and founder of the Pace Energy and Climate Center. Read his views on the regulatory issues around fracking.

By Richard L. Ottinger

Horizontal Hydraulic Fracturing (“fracking”) of shale formations to access natural gas supplies heretofore unable to be harvested economically creates a vast potential domestic energy resource for areas with appropriate shale resources.

The process has serious environmental problems, however, that need to be resolved and vigorously regulated to avoid overtaxing and contaminating drinking water supplies, dangerous air pollution, earthquakes, assure reimbursement for any accidents or damages to affected properties, and to assure minimization of the release of greenhouse gasses.

The fracking process involves drilling into the shale deposits and forcing more than a million gallons of water, sand, and chemicals per well through cement pipes into the shale to release the embedded gasses. The chemical-infused wastewater is returned, often with radioactive materials that occur in the shale, and it has to be stored or reprocessed in a manner to prevent leakage into aquifers and reservoirs used for drinking water. Hundreds of trucks bring in water and transport the waste water to disposal sites, often spilling waste water and contributing to greenhouse gas emissions.

There now are hundreds of wells in the U.S. that were improperly plugged after the wells were abandoned resulting in serious leakage of waste water, toxic chemicals and radioactive materials into drinking water supplies. Some fracking companies failed to use adequate qualities of cement in the drilling pipes resulting in leakages both of contaminated water and methane gases that are powerful greenhouse gas contributors. There have been incidents of methane fires and explosions. Fracking companies have refused to disclose the identity and concentrations of chemicals they use in the fracking process claiming that the information is proprietary. Contaminated wastewater has been delivered to POTW facilities that lacked the capability of processing the chemical and radioactive wastes.

In Pennsylvania, there were serious incidents of water contamination resulting in illnesses and deaths, adjacent property values plummeted, and the banks no longer will give or extend mortgages to property owners in the vicinity of fracking projects. Affected property owners were not properly reimbursed.

Regulation of fracking operations to prevent harm to public health and the environment has been abysmal. At the federal level, the Energy Policy Act of 2005[i], orchestrated by Vice President Cheney and signed by President George W. Bush, exempted fracking from most of the provisions of the Safe Drinking Water Act and restricted application of NEPA and other environmental statutes.  State regulations have been insipid and poorly enforced. The DGEIS prepared by the Department of Environmental Conservation in New York was seriously deficient, and the Riverkeeper, NRDC and other environmental organizations, and the US EPA have submitted extensive comments detailing the deficiencies.

The principal regulations required to assure protection of public health and the environment include:

  • Fracking must be prohibited in the vicinity of major drinking water supplies, in areas on seismic faults and in areas with drinking water shortages.
  • The specifications for pipeline construction and wastewater repositories must be strict to the point of preventing leakage of chemical and radioactive materials and methane under all foreseeable contingencies.
  • The chemicals used in fracking must be fully disclosed, at least to the regulatory authorities.
  • Wastewater must not be sent to POTW plants that lack the ability to remove toxic and radioactive materials.
  • Specifications for trucks that transport wastewater must require adequate protection against leakage in the event of accidents or driver negligence. Drivers must be adequately trained in the safe handling of these materials.
  • Procedures must be required to handle all foreseeable accidents, and equipment necessary to handle such events must be available at each fracking site.
  • The exemption of fracking operations from federal environmental laws must be repealed.
  • Regulations must be strictly enforced, adequate numbers of enforcers must be hired and adequately trained, and penalties for failure to abide by regulations must be severe.
  • There should be strict liability for damages caused by fracking operations, and a fund or insurance should be required to compensate all persons and communities that suffer damages resulting from fracking.
  • Assistance should be provided to developing countries to enable them to adopt and enforce these regulatory measures.
  • These measures should be paid for by a tax on the revenues from fracking operations.

If these measures are adopted and enforced, then natural gas from fracking could be a useful transition fuel while energy efficiency and renewable energy measures are adopted and adequate transmission systems are constructed.

Natural gas still is a greenhouse gas-emitting fossil fuel; the necessity for replacing all fossil fuels, including natural gas, with non-carbon alternatives still should be the world’s energy priority.

[i] 42 U.S.C. § 300h(d)(1) (2006).

Want to know more about fracking? Join members of the Pace Community on April 9 for a multi-campus discussion on the controversies surrounding hydrofracking in New York. Please RSVP online at