In the U.S., hydraulic fracturing exists in a rarified regulatory prism. It couples 1940’s technology with 21st century challenges. But by luck of a series of legislative loopholes, it largely eludes meaningful federal regulation in the U.S.. Hydraulic fracturing is hardly a technology for releasing untapped and otherwise trapped reserves of natural gas in the United States alone.

Globally, it is fair to say that regulation of fracking is patchwork. Some nations, including China, welcome it, seeing it as an essential feature of economic sustainability. Others, like France, have imposed a moratoriam, viewing it as a Trojan Horse of economic development, harboring too many secrets and risks. The response at the subnational level largely follows this pattern. Texas hales the potential of fracking, while Vermont decries it. The Northern Territory in Australia sees it as a job creator, while New South Wales worries about chemical constituents in water used in the fracking process.

Policies and places aside, the common global denominator to fracking is water, and lots of it. Fracking is already well on its way to becoming a top user of freshwater globally, consuming billions of gallons daily. Fracking uses a high-pressure blast of millions of gallons of water, sand, and a cocktail of up to 200 chemicals to create a shockwave to break open cracks deep in the earth, releasing embeeded natural gas deposits. Polluted water returns, raising the need for treatment. Moreover, chemicals and the gas have been found to leak into water supplies.

The international community, as it were, is yet to identify fracking as a practice worth multilateral response. There is no international agreement on fracking standards, no agreement on trade in natural gas derived from fracking. Indeed, fracking was all but ignored at Rio. But fracking raises pollution and human rights issues corresponding with rights to water and a suitable environment, and to information, participation, and access to justice. So, as with fracking regulation in the United States, fracking policies globally are underway, if unpredicatable.

A growing suite of countries appear to be betting their energy future on fracking shale gas. Poland is leading the way, thought to have among the largest resident reserves of shale oil gas. Denmark has commissioned most of its shale gas reserves for development. China – which is estimated to have fifty percent more shale gas reserves than the United States – has recently permitted fracking for the first time. The United Kingdom has recently given the green light to fracking shale gas. Some countries, like Ireland and New Zealand, are promoting chemical-free fracking. Non-hydraulic technologies that use much less water are on the horizon, too. On August 28th, Mexico announced that it has granted a permit to the U.S. Chimera Energy Corporation to deploy its new non-hydraulic shale oil extraction technology in Mexico’s Chicontepec Basin. The Chicontepec Basin is considered Mexico’s largest certified hydrocarbon reserve, totaling more than 139 billion barrels of oil equivalent.

A handful of countries have banned fracking. On July 1, 2011, two week shy of Bastille Day, France became the first country to ban fracking outright moratorium on fracking. This is despite some predictions of possible fossil fuel resources of up to 100 million cubic meters of shale oil in the Paris basin and five billion cubic meters of shale gas in a bed across the south of France. Companies were given two months either to demonstrate that they were not engaged in fracking, or surrender mining licenses. Bulgaria has also imposed a moratorium, forbidding Chevron from using fracking to search of large seams of embedded natural gas there.

Subnational developments are notable. Australia has a booming coal seam gas industry with around $50 billion worth of projects underway in the country’s northeastern Queensland state. Yet both the States of New South Wales and Victoria in Australia have banned fracking. Neither, however, hold much potential for fracking. As mentioned, Victoria enacted its ban days ago, on August 24, 2012. The moratorium would remain until Australia’s federal government develops a national regulatory framework for regulating coal seam gas and hydraulic fracturing. Quebec has suspended fracking, as has the Karoo region in South Africa, thought to be one of the nation’s most promising areas for development of deep mine natural gas extraction. Vermont banned hydraulic fracturing in May 2012, the U.S. first state to do so.

The debate over fracking currently enjoys wide congress throughout the globe. Global developments are worth watching as international, national and subnational governmental bodies wrestle with the environmental, energy, and economics issues associated with hydraulic fracturing.

 Johnson, who was one of a handful of students who helped expand the Clinic to the Harrisburg campus, knew nothing about hydraulic fracturing, or “fracking” – the process used to unearth natural gas from shales deep beneath the earth’s surface. But the call from a resident of Damascus, Pa. near the Pennsylvania-New York border in Wayne County, changed everything.

 Weeks later, Johnson, fellow clinic intern Claire Gargiulo and Associate Professor and Clinic Director Kenneth T. Kristl were sitting in a Wayne County, Pa. living room surrounded by about a dozen concerned citizens who were behind that phone call. The citizens had been approached by gas companies who wanted to drill on their properties, or lived near people who were selling drilling rights. As he gazed out at the Delaware River from a picture window in that living room, Johnson began to learn about the risks and damage that can accompany drilling.

 “I spent many hours after that throughout the summer, trying to find any way I could to help them,” Johnson said, estimating he has since logged about 150 volunteer hours in service of that one Clinic client. “I do research everyday on gas drilling and hydro fracking.”

 Fracking involves injecting a complex mix of chemicals deep into the earth to free the natural gas, which is trapped 500 to 8,000 feet below in the geologic formation known as Marcellus Shale. The shale underlies much of Pennsylvania. Nationally, fracking and related gas-drilling activities have led to contaminated water supplies and been linked to public health problems. The Oscar-nominated “Gasland” documentary chronicled the tribulations of people who live near natural gas wells.

 The Clinic took on the residents as clients. Johnson began writing letters to the township, arguing they were letting gas companies drill in violation of township zoning. The Clinic threatened to sue.

 Johnson, 35, has a background in electrical and mechanical engineering. The married father of two enrolled in Widener’s extended division in 2007 and continued to work full time as he pursued his law degree. A native of south Texas, he is a long-time resident of Berks County, Pa. Natural gas extraction and fracking have become big issues in Pennsylvania, with thousands of wells drilled or planned to tap the Marcellus Shale. For Johnson, the matter quickly became personal.

 Through his research, Johnson learned the clients lived in the Delaware River Basin, an area of more than 13,000 square miles that includes the longest un-dammed river east of the Mississippi and 216 tributaries. It provides water for drinking, agricultural and industrial use to more than 15 million people. The Delaware River Basin Commission is the regional body that regulates the river system.

 Johnson learned the commission, made up of the governors of the four basin states – Delaware, New Jersey, Pennsylvania and New York – and the commander of the U.S. Army Corps of Engineers North Atlantic Division, already had two pending applications for natural gas drilling.

As the Clinic’s clients formed into a group known as Damascus Watch, the commission moved to put all drilling applications on hold while it developed regulations that would govern the practice. And, it invited public comments. Kristl asked Johnson to draft comments on behalf of Damascus Watch.

Johnson got to work in February 2011.

The result was a nine page public-comment document completed two months later that made two major arguments. First, it maintained the proposed regulations would violate the commission’s compact – designed to create a uniform set of rules throughout the Delaware River Basin – by giving regulatory control to the individual compact states. Second, it argued the commission cannot enact regulations because it has failed to complete an assessment of what drilling would do to the environment, as required by federal law. Subsequent to the filing of the Clinic’s comments, the State of New York sued the DRBC in New York federal court on the basis of the same failure to perform an environmental assessment

Johnson said the experience taught him to write concisely, avoid legalese and stick to the main issues that have the best chance of winning.

“More than 90 percent of the final document was written by John,” Kristl said. “He kept generating drafts and we would talk about his points and help him focus the argument and make it stronger. As the document evolved, I could see Jon’s skill and confidence grow. This became a real capstone experience in Jon’s legal education.”

Kristl said he was pleased to see the Clinic provide Johnson such an educational opportunity and the citizens such a vital service. It cemented his belief that Widener was wise to expand the Clinic to the Harrisburg campus in spring 2010. The Clinic began operations on the Delaware campus 21 years ago.

“Cases like this demonstrate how Clinics play such a key role in our service-learning approach,” Kristl said. “Jon represented real people, he honed his research and legal writing skills and he worked to make a difference in the community. Jon grew as a lawyer and is better-equipped for the legal career that awaits him. That’s rewarding for him and fulfilling for me as the professor who guided him.”

As Damascus Watch and the Clinic await the commission’s next move, Johnson is getting used to the fact he has had to walk away from the case to make room for the next generation of Clinic interns. He graduated in May and wants to practice environmental law. He hopes to secure a job at a midsize firm with an environmental litigation department. But first, he is focused on passing the bar. He is grateful for the Clinic experience.

“As I got involved with it, I found where I should be,” he said.

 Reach the Environmental and Natural Resources Law Clinic Environmental Help Line at 888.953.6853.

With the headline, “Law Professor Says Climate Change Cases Will Be ‘Irresistible’ to U.S. Supreme Court,” the December 16, 2009 issue of BNA’s Daily Environment Reporter and the December 17, 2009 issue of BNA’s Toxic Torts Reporter cited Jim May’s comments on recent climate change cases during a December 15, 2009 teleconference sponsored by the American Bar Association entitled “The Political Question Doctrine, Climate Change, and the Meaning of Recent Climate Change Litigation”.  Commenting on the recent decisions in Connecticut v. American Electric Power Co., Comer v. Murphy Oil, and Native Village of Kivalina v. ExxonMobil Corp., Professor May is quoted as saying that the political question doctrine has been used “sparingly” and is especially rare in environmental law.  The articles also cite Professor May as predicting that Justice Kennedy ”will be the swing vote and will decide how the current court might handle global climate change cases in light of the political question doctrine.” 

Professor May is also quoted extensively on this topic in a December 17, 2007 article on Greenwire.com entitled “Courts May Beat Congress, U.N. to Punch on Greenhouse Gases,” which was also picked up by NYTimes.com.  The article leads off with this quotation:

“My prediction is that there will be more judicial action before there’s enacted federal legislation or international agreement. That’s a fair bet,” said James May, a law professor at Widener University in Delaware. “In the absence of federal legislation and an international accord, these cases are the leading beacons for remedying the effects of climate change.”

ELC Launch

For coverage of the Environmental Law Center’s Launch in Wilmington and Harrisburg, visit http://law.widener.edu/NewsandEvents/Articles/2009/dehb102109envirocenterlaunch.aspx