The Influence of Legal and Regulatory Context on Perceptions of Hydraulic Fracturing Risks

Hydraulic fracturing (“fracking”) has been hailed by some as a perfectly safe process for reaching previously unreachable pockets of natural gas. Others, however, claim that it poses a significant threat to human health and the environment, and have strongly advocated for it to be banned. Amid this fierce debate over fracking’s safety, residents living in communities affected by it have had to make potentially life-altering decisions, such as whether to lease their land for the siting of a fracking well, or whether to file a lawsuit after discovering contamination of their well water. While prior research has investigated a number of factors that predict support or opposition to fracking, these studies have not explored the concrete ramifications of residents’ risk perceptions.

In this study, I examined both fracking-related lawsuits, and data on spills and water contamination incidents alleged to have occurred in Pennsylvania since the start of the fracking boom. I then conducted in-depth interviews with residents living in fracking-heavy communities in Pennsylvania in order to understand how their experiences with fracking shaped their perceptions of its risks, and of the legal and regulatory frameworks governing it. Applying the grounded theory method of analysis (Chapter 2), I found that the importance of feeling informed about various aspects of fracking featured prominently in the interview data. Participants expressed regret when they spoke of making decisions without sufficient information, they expressed frustration at striving in vain to get complete or comprehensible safety information, and they expressed that not having sufficient risk information made them more fearful of the threats posed by fracking.

Although the ways in which people form perceptions of risk have been studied for decades, I found that their manifestation in the real-world context of fracking supports the conclusions of previous studies, but also points towards some nuances that merit further exploration (Chapter 3). Policymakers, in particular, should be cognizant of how individuals draw conclusions about fracking safety, as this study demonstrates that the cognitive mechanisms governing risk perception can have tremendous consequences for residents’ lives. Risk perception goes beyond mere support or opposition, but can instead inform life-altering decisions. I found that the mental shortcuts residents employed when interpreting risk information in the face of uncertainty could be exploited by landmen seeking to procure leases from landowners.

Relatedly, I found that concerns about fracking risks were exacerbated by participants’ feeling that they had insufficient access to comprehensive and comprehensible information about fracking’s potential risks to their health and the environment (Chapter 4). Among those who expressed concerns about fracking safety, the lack of reliable risk information was a chief concern. The most commonly sought information related to fracking fluid composition, spill and violation data, comprehensible water and air monitoring results, and water well contamination data. Drawing from scholarship on the use of information disclosure as a regulatory tool, I discuss the need for increased information transparency in this context, and propose several policy interventions to ease the information asymmetry experienced by residents in these communities.

One of the ways in which safety-related information is concealed is through the use of nondisclosure agreements (“NDAs”) in settlements involving fracking-related claims. Residents who make such claims, whether formally or informally, find that in order to get any kind of financial restitution, they must sign an NDA as part of the settlement. I found that for other residents living in these communities, the systematic use of NDAs to settle claims obscured their ability to assess the frequency of water well contamination incidents, as affected landowners are forbidden by these NDAs to speak of their experiences. Using the interview data gathered in Pennsylvania, I compared the use of NDAs in the fracking context with their similarly systematic use in settling workplace sexual harassment claims (Chapter 5). I then analyzed the law governing these contracts of silence, and proposed ways to maintain the public policy benefits of NDAs, while minimizing the potential harm to third parties that comes from concealing harmful behavior.

But residents’ frustration with NDAs comprises only a small fraction of the dissatisfaction expressed about the legal system’s handling of fracking-related claims. Participants identified a number of ways in which the legal system disadvantaged plaintiffs who brought water contamination claims against gas companies (Chapter 6). Although not all participants perceived the legal system to be intrinsically favorable to defendant gas companies, those with a pessimistic view of the legal system are united by their belief that fracking is dangerous. The interview data strongly suggests that those who consider fracking to pose a threat to them personally, correspondingly perceive that the legal system would fail to adequately compensate them in the event of a fracking-related injury. The disconnect between what they expect the legal outcomes should be, and what they perceive the outcomes actually are, appears to fuel disillusionment with the legal system that diminishes its fairness and legitimacy in their eyes.