Frack to the Future? Closing Oil- and Gas-Related Fractures in the Law of Water Protection

Abstract

In a world of increasing concern about foreign oil imports and climate change, natural gas is expected to become an increasingly important part of the United States’ fuel mix. As conventional natural gas sources are depleted, the gas industry is turning to unconventional sources, including gas-containing shales. Gas shale can only be economically exploited using a method called hydraulic fracturing, which poses potentially grave dangers to surface and groundwater. North Carolina contains commercially viable gas shales. For this reason, the government of North Carolina must protect the state’s water when commercial-scale hydraulic fracturing begins. This masters project examines federal and state water-protection laws. Seven federal statutes were considered—Clean Water Act; Safe Drinking Water Act; National Environmental Policy Act; Resource Conversation and Recovery Act; Toxic Substances Control Act; Emergency Planning and Community Right-to-Know Act; and Comprehensive Environmental Response, Compensation, and Liability Act—along with two North Carolina state-level provisions. The project identifies exemption and exceptions that prevent these statutes from robustly protecting water quality from hydraulic fracturing. The project concludes with three major recommendations for North Carolina. First, the state should enact a statutory moratorium on hydraulic fracturing. Second, the state should reassess and strengthen state water quality laws and regulations. Third, the state should require openness by passing a state-level community right-to-know act.