Unconventional Oil & Gas Regulation
Subsequent the passage of the Energy Policy Act (EPAct) of 2005, 42 U.S.C. § 15801, P.L. 109-58, the U.S. government encouraged economic investment into our oil and gas infrastructure. This Act included the repeal of Public Utility Holding Company Act (PUHCA), 15 U.S.C. § § 79-79z(6), which was established in 1935 to aid individual states with their efforts to effectively regulate the energy sector following the Great Depression. Following the repeal of PUHCA, the Federal Energy Regulatory Commission (FERC) has allowed immense outside capital investment into the U.S. oil and gas market, allowing for emerging new unconventional oil and gas extraction methods to flourish, such as horizontal drilling techniques.
The EPAct of 2005 amended § 1421(d) of the Safe Drinking Water Act (SDWA), 42 U.S.C. § 300f et seq. exempted hydraulic fracturing (HF) wastewater from the Underground Injection Control (UIC) program. Since HF related hazardous waste is not federally regulated by the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § § 6921-6939g, Subtitle C, § § 3001-3023, this exemption compromises the oversight of HF wastewater injection controls. The EPAct of 2005 expanded the language of an existing exemption for the oil and gas industry, regarding the Clean Water Act (CWA), 33 U.S.C. § 1251 et seq., which allows production sites to not be required submit a National Pollution Discharge Elimination System (NPDES) permit for any stormwater affiliated discharges associated with all processing activities, including produced water (wastewater) treatment, energy transmission, and corresponding construction activities (CWA, §502). The EPAct of 2005 also initiated a National Environmental Policy Act (NEPA) exclusion pursuant 42 U.S.C. § 15924(b), which eliminated NEPA review by the Department of the Interior and the Secretary of Agriculture for oil and gas exploration conducted in National Forest System Lands. This NEPA exemption also applies to all surface disturbances <5 acres, and also to well sites where drilling transpired within the previous 5 years..
Various entities which engage in unconventional methods of oil and gas exploration have contaminated aquifers, lakes, streams, diminished air quality (Soeder and Kappel 2009; Kargbo et al. 2010; Gregory et al. 2011; Chalmers et al. 2012; Vidic et al. 2013; Brittingham et al. 2014; Mauter et al. 2014; Schneising et al. 2014; Gallegos et al. 2015) and augmented the frequency and intensity of induced seismicity (Weingarten et al. 2015; USGS 2016). A substantial increase in median annual water volume allocated for HF in the U.S. was experienced between 2000-2014, rising from 670 m3 to 19,425 m3 (Gallegos et al. 2015). In 2016 the USGS validated that HF wastewater injection significantly influences earthquake nucleation, and confirmed that the volume of injected produced water manipulates the quantity of induced seismic events. HF wastewater injection can have far-reaching effects. Recorded pressure increases from cumulative wastewater injection from as far as 90km away, has been observed by the Kanas Geological Survey to induce seismicity, as a result of far-field pressure diffusion (Peterie et al. 2018).
Currie et al. has demonstrated that infants born within 1km of an active HF well site will experience a 25% increase in the probability of low birth weight, and additional detrimental consequences arise when infant births occur within 3km (Currie et al. 2017). The sampling size associated with this study is significant, over 1.1 million births in PA from 2004-2013. Increases in childhood hematologic cancer incidences (Elliott et al. 2017; McKenzie et al. 2017) and infants born with congenital heart defects (CHD’s) have also been observed in close proximity to HF activities (McKenzie et al. 2019). Apergis et al. performed an empirical analysis of 590,780 births occurring in all of OK’s 76 counties, beginning with the inception of the U.S. shale revolution in 2006, up until 2017. Substantial birth complications (low birth weight and premature births) were only observed when infants were born within 5km of an UOG well site, with more severe effects transpiring within 1km (Aspergis et al. 2019). Their regression analysis (births from 1996-2005) did not display any statistical impact on infant health prior to the inception of the U.S. shale revolution in 2006. Deziel et al. recently conducted an epidemiological study reviewing verified adverse human health outcomes resulting from UOG operations. Their conclusion was derived from published studies in the U.S. National Library of Medicine (MEDLINE) and SCOPUS (over 34,000 peer-reviewed scientific journals), that have emerged in the past three years (806 peer-reviewed articles). They ascertained that 86% of the peer-reviewed articles which met their strict criteria for evaluation, displayed an immense relationship between UOG activities and unfavorable birth outcomes, primarily preterm deliveries and low birth weight (Deziel et al. 2020).
Since Nobel Prize recipient Svante Arrhenius realized that fossil fuel combustion increased CO2 emissions in our atmosphere in 1896, scientists and policy makers have acknowledged the calamitous potential for the oil and gas industry to render substantial deleterious effects on ecosystems. Yet in 2016, the U.S. utilized fossil fuels to facilitate 80.9% of all energy consumption (US EIA 2017). Future energy policies must be focused on restricting the supply-side of fossil fuel generation, and be aimed at reducing the amount of natural resources extracted and utilized for consumption, rather than favoring demand-side regulations (cap-and-trade on emissions), which promotes the continuous development of fossil-fuel infrastructure.
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Currie J, Greenstone M, Meckel K. 2017. Hydraulic fracturing and infant health: new evidence from Pennsylvania. Science Advances, 3:e1603021. 13 December 2017.
Deziel N, Brokovich E, Grotto I, Clark C, Barnett-Itzhaki Z, Broday D, Agay-Shay K. 2020. Unconventional oil and gas development and health outcomes: A scoping review of the epidemiological research. Environmental Research, 182: 109124, https://doi.org/10.1016/j.envres.2020.109124
Elliott E, Trinh P, Ma X, Leaderer B, Ward M, Deziel N. 2017. Unconventional oil and gas development and risk of childhood leukemia: assessing the evidence. Science of the Total Environment, 576: 138−147.
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Peterie S, Miller R, Buchanan, DeArmond B. 2018. Fluid injection wells can have a wide seismic reach. Eos, 99, https://doi.org/10.1029/2018EO096199. Published on 17 April 2018.
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USGS (United States Geological Survey). 2016. Induced earthquake magnitudes are as large as (statistically) expected. Journal of Geophysical Research: Solid Earth, 121(6): 4575–4590. http://www.its.caltech.edu/~pagem/InducedMmax.pdf
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Weingarten M, Ge S, Godt W, Bekins B, Rubinstein J. 2015. High-rate injection is associated with the increase in U.S. mid-continent seismicity. Science, 348(6241): 1336-1339.