Legal Research on Fracking – Hobart and William Smith Colleges \
The HWS Update

Legal Research on Fracking

Lauren Karam ’15 and Lanlan Lin ’17 have conducted legal research on hydraulic fracturing under the direction of Assistant Professor of Environmental Studies Beth Kinne, whose book “Beyond The Fracking Wars: A Guide for Lawyers, Public Officials, Planners, & Citizens,” was published in 2013. The book introduces the technology of fracking and the structure of the oil and gas industry, but focuses on legal and regulatory regimes that govern shale gas development and disputes.

Hydraulic fracturing (also referred to as “hydrofracking” or “fracking”) involves the high-pressure injection of millions of gallons of chemical-laced water into a well to crack rock and release gas. Since 2008, energy companies have been intensively developing large stores of natural gas in the Marcellus Shale play, which underlies the Southern Tier of New York State and stretches into the Finger Lakes region. While development of the Marcellus Shale has not yet been permitted in New York State, the development associated with the “Shale Gale,” including pipelines, gas storage facilities, and rail development, has a significant impact on New York communities.

“Governor Cuomo’s announcement last week that hydraulic fracturing would be banned in New York was received very differently by different stakeholders in the state,” Kinne says. “Organizations and members of the public concerned that large-scale development of shale gas will change the character of their communities and threaten long-term environmental and public health were ecstatic. Members of land owner coalitions in Southern Tier counties with limited opportunities for economic development were less so. Many of these people have successfully negotiated sophisticated leases with oil and gas companies, and development of the gas resources beneath their properties could have resulted in substantial financial gain, which now appears to be out of reach.”

She says that the banning of fracking in New York State does not mean that New York will be insulated from activities associated with development of the Marcellus Shale; storage and transportation projects will likely continue to develop in the region.

In light of her recent work, Kinne explains that the term “unconventional gas development” can encompass methods besides fracking, such as acidification. However in states such as New York, Pennsylvania, West Virginia, and Ohio, the term is merely a synonym for “high volume, long lateral, hydraulic fracturing.”

Lin and Karam both researched legal issues regarding fracking, but each looked at slightly different areas regarding concern of water contamination during fracking.

Karam’s research focused on the development of local municipal regulations governing hydraulic fracturing and associated development activities, the state constitutional provisions upon which municipalities were basing their assertion of power, and the lawsuits which decided the boundaries between state and municipal powers. Her data was used in a poster, “Local Government Responses to Environmental Challenges Posed by Unconventional Gas Development,” which Kinne wrote for a conference on sustainability.

Karam found that what towns or states want in regards to fracking isn’t clear cut. With every town having the ability to ban gas and oil drills, but that also falling under federal and state law, there is a constant ‘tug-of-war’ between the local and state legislations. Therefore, national or international companies have to play by multiple sets of rules – different ones for each state. It is difficult to strike a balance between allowing states and municipalities the power to protect their own citizens and regulate according to place-specific climate, geology and natural resources, while providing some consistency in science-based regulatory standards.

She points to a need for collection of baseline data and full disclosure of chemicals to be used during the fracking process as both necessary for the protection of the environment and the energy companies that seek to do the fracking. State regulators are increasingly requiring companies to conduct baseline environmental tests and state agencies, nonprofit organizations and volunteers are assisting in creating more comprehensive databases of water and air quality to promote better understanding of the real environmental impacts of natural gas and oil development.

Meanwhile, Lin researched her native China’s recently developed fracking infrastructure, and how it relates to the country’s land disputes and concern for clean water in times of drought.

“Hydraulic fracturing is such a complication with this, because it takes millions of gallons of water for one fracking,” Lin explains. The primary concerns are China’s changing use of limited water from fish farming, irrigation or municipal use to hydraulic fracturing, and the impacts of the contaminated produced water on communities. It cannot be used for drinking, irrigation or fish farming and can contaminate other water sources that are.

Since China has only just recently developed hydraulic fracturing, Lin mainly dealt with preliminary stages of fracking legalities, such as the regulation of water rights and related laws over land disputes.

“It’s hard to solve drought and have enough water to use for hydrofracking while not contaminating the remaining drinking water with chemicals,” says Lin.

Her research built on that which Kinne conducted earlier on pre-communist water rights and development of modern water rights in China. The advent of hydraulic fracturing has created new challenges for the relatively new modern water rights system in China, and Lin’s language ability allowed Kinne to access recent developments and controversies around water rights resulting from hydraulic fracturing activities.

Lin and Karem’s research was funded by Kinne’s startup funds through the HWS Provost Office.