Colin Harris
Partner, Bryan Cave LLP

Editors note: This is a guest column by Colin Harris, an attorney with Bryan Cave LLP originally featured on Forbes.com. Colin has 20 years of experience in matters pertaining to the Clean Air Act and Clean Water Act. 

Mark Twain said “never let the truth stand in the way of a good story.” A common hydraulic fracturing narrative is that the technology pollutes water supplies. The story goes that fracturing is a mysterious and untested practice, that fracturing fluids are a secret, “chemical cocktail,” that there are innumerable incidents of aquifer and drinking water contamination, resulting even in tap water catching fire, and that “Big Oil” has pressured Congress into exempting the technology from any environmental laws.

The truth is not as exciting. Hydraulic fracturing involves the injection of fluid consisting of approximately 99.5% water and sand (the rest consists of common industrial or even household chemicals or materials) through wells constructed with protective casing and cement, into producing shale formations. The formations are thousands of feet below drinking water aquifers, separated by impervious rock.

While the technology has evolved and is used more frequently, fracturing is not new, is heavily regulated at the state level, and enjoys no blanket exemption from environmental laws. There is no credible data indicating that fracturing of shale formations has ever contaminated drinking water.

Fracturing proponents have struggled to gain the high ground in the debate on water quality, even as they debunked the myths time and again with facts and data. Fortunately, the groundwater issue may be losing traction, at least concerning some high-profile cases where the regulators recently have retracted allegations or reconsidered data.

This is why the thrust of the manufactured narrative that fracturing is a menace to the environment is now shifting to air quality. The time is now to separate fact from fiction in the public consciousness, and to demand transparency on the part of those who oppose fracturing and would have it banned or regulated into oblivion.

On April 17, 2012, EPA issued new rules requiring operators to use special equipment to separate and capture the gas and liquid hydrocarbons from the flowback that comes from the fractured wells. Fracturing opponents have already complained that the new rules have a phase-in period, allowing companies to pour “clouds” of pollution into the air. This fails to recognize the oil and gas production already was subject to extensive federal and state air quality regulations before the new rules. Also, EPA’s estimates of emissions from well-completions probably were overstated. Further, the new regulations adopt an across-the board, “one size fits all” approach that do not adequately consider the wide variability in oil and natural gas production operations and emissions. In addition, some states already impose the “green completion” requirement for fractured wells, and there is ample legal and practical justification for leaving this issue to the individual states.

The point is not that capturing emissions in a cost-effective and technically feasible manner lacks any merit or that the industry should grouse about regulation. Rather, the public should know that air emissions associated with hydraulic fracturing (where they exist) remain a small part of a very large and complex issue, that the oil and gas production industry has long done its part to reduce air emissions from a variety of sources, and that reasonable minds can differ about whether the new regulations make sense as adopted.

This will not stop fracturing opponents from casting a dark cloud over fracturing based on air quality hysteria, just as they did regarding water quality. Already, sound-bites from well-orchestrated anti-fracturing forces tell us that these regulations prove that that emissions from fractured wells are the cause of smog and are “cancer causing.” These allegations grossly oversimplify complex scientific and health matters. Smog is a regional concern involving many large sources, vehicles, and meteorological factors. It is meaningless to say that something can cause cancer without extensive baseline data about dosage, proximity, exposure and other factors that fracturing opponents never discuss.

The one important fact is that fracturing of an individual well emits relatively small amounts of volatile compounds, the material of concern, and some wells emit none at all.

Yet it does not end there. One university scientist even wrote a paper alleging that greenhouse emissions from shale gas production are worse than the burning of coal. While both coal and gas play important roles in our energy future, and there is another agenda to regulate coal-fired power plants out of existence, the claim is contrary to the well-accepted fact that the greenhouse gas impacts of burning natural gas are less than coal. The paper was debunked in a wide-variety of scholarly journals, by the Department of Energy, and even criticized by some environmental groups. Yet the story was a good one, so it got reported while the truth was pushed aside.

As the narrative shifts to air quality, it is also important to open a sincere dialogue about the motivations off the anti-fracturing movement. Is opposition to hydraulic fracturing really about the alleged risks of the actual practice of fracturing, is it about opposition to fossil fuels generally, or do opponents simply not want development in their backyard? These are all very different issues. It is perfectly reasonable to have a debate about any of them, and the life-cycle of a well is not without some environmental risks that are worthy of discourse. But it is not productive to demonize fracturing as a means to a different end, such as elimination of the fossil fuel economy or promotion of “alternative energy.” Nor is it beneficial to address the supposed risks of fracturing without acknowledging the critical role it plays in allowing the economical recovery of massive quantities of natural gas and oil from unconventional shale resources.

Fracturing is conducted on more than 90% of wells drilled today. The practice benefits the economy, has kept natural gas prices at historic lows, and reduces our reliance on foreign energy supplies. Opponents of fracturing should be asked how they intend to duplicate these results, how they intend to find near and long term substitutes, and whether their position is in the best interests of lower-income Americans who benefit from affordable energy.

Clearly, oil and gas development poses environmental issues that need to be managed. Equally clear is that the industry is subject to heavy environmental and safety regulations. Oil and gas does not have a perfect compliance record, which is impossible. The problem is that, increasingly, fracturing itself is wrongly blamed for every problem and complaint that arises in the vicinity of a well. We know this from the experience with water quality.

There have been a few issues related to other phases of drilling, such as improper casing or cementing of a well or leaking wastewater pits. These are not fracturing issues. There are well-documented cases where drinking water wells have been contaminated by naturally occurring methane. This is not a fracturing issue. Yet the industry is being held to a standard it cannot meet: prove that fracturing did not cause these problems. Proving a negative is impossible, especially in an atmosphere of misinformation or even scaremongering, and especially when the burden is on “Big Oil.” With air quality, there is a new opportunity to avoid this dilemma. Opponents using air quality as a sword should be met with industry transparency and listening, public outreach and context, good science, dialogue about energy policy and natural gas, and hard questions about the motives behind the anti-fracturing movement. The hydraulic fracturing storyline about supposed environmental catastrophe should no longer get in the way of the truth.

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Colin Harris is an attorney with Bryan Cave LLP. For over twenty years, Colin has served the energy and natural resources industry in environmental, public lands and related matters. He has extensive experience in matters pertaining to the Clean Air Act and Clean Water Act.