Free Consultation:212-766-5222

Leav and Steinberg Team

Fracking Contaminating New Yorkers’ Water?

The drilling industry maintains that fracking is harmless to water supply, but scientific studies, including an old one by Environmental Protection Agency (EPA), show otherwise. Fracking is the procedure whereby water, sand, and/or toxic chemicals are imbued to the ground to break up rocks and release natural gas. For years, settlements between landowners and energy companies have been sealed, making it impossible for the public to analyze documents which may show many more instances of water contamination by fracking than already discerned.

The EPA study revolves around contamination discovered in 1984 in West Virginia, on the property of Mr. James Parsons. The Kaiser Exploration and Mining Company used hydraulic fracturing fluids or gels that were ultimately found in Mr. Parson’s water well, along with natural gas. The water was rendered unusable. Though the American Petroleum Institute conceded this was a case of water contamination due to fracking, a spokesman averred that the important factor in that case was that the driller and regulator did not know about the nearby aquifer. Other scientific studies have found that patterns of fracking contamination can aggregate so severely that a faucet can be lit on fire, or a home or water well may blow up after gas seeps into the basement or water supply. The drilling industry and some state regulators described these other adverse fracking incidents as anecdotal, unconnected to drilling activity, or an isolated problem.

The oil and gas industry claims fracking is safe because the process occurs thousands of feet below drinking water aquifers. The Chief Executive of ExxonMobil has gone so far as to say at a Congressional hearing: “There have been over a million wells hydraulically fractured in the history of the industry, and there is not one, not one, reported case of a freshwater aquifer having ever been contaminated from hydraulic fracturing. Not one”. Clearly this is contrary to the EPA finding, which was published in 1987, as well as other documented instances in New York, Colorado, Ohio, and Pennsylvania.

Now, New York Attorney General Eric T. Schneiderman is battling federal agencies over their proposed regulations, which could affect drinking water of 9 million New Yorkers, as they will allow fracking at over 15,000 gas wells without a full environmental review. “Schneiderman’s suit seeks to halt the regulations until the commission complies with the National Environmental Policy Act’s requirement for a full review of all health and safety risks”. The lawsuit has the potential to shut down gas development for years in a region that covers one of the largest natural gas formations in the world. The case, New York v. U.S. Army Corps of Engineers, 11- cv-2599, U.S. District Court, Eastern District of New York (Brooklyn), will be consolidated with another case brought by Delaware Riverkeeper Network. It is anticipated that other interest groups, such as Damascus Citizens for Sustainability, will file similar suits.

Members of the American Petroleum Institute, Independent Petroleum Association of America, and U.S. Oil & Gas Association, including pipeline operators, natural gas producers, and other businesses, could be economically affected. On the other hand, copious events show water contamination complaints subsequent to the execution of fracking in the vicinity. As a further exemplar, upwards of 2,000 natural gas wells have been drilled in Pennsylvania, resulting in “hundreds of violations of water pollution laws,” according to Schneiderman’s complaint, which also cites an April 19 Chesapeake Energy Corporation natural gas well blowout.

U.S. District Judge Nicholas G. Garaufis held the New York case to be “regulatory”, “statutory” and “constitutional”, and thus, found that the U.S. can move to dismiss it. The U.S. court papers showed it plans to seek dismissal of the case on the grounds that the state can not prove injury and does not have the right to sue federal agencies. Trade groups have standing to file briefs on the U.S. motion to dismiss while they seek more formal status to intervene.

Another proposal, by New York Comptroller Thomas DiNapoli, is for the inception of a fund comprised of fees paid by drillers to clean up environmental damage from natural gas drilling using high volume fracking. It would also require natural gas production players in New York to post a bond to cover potential contamination liability.

The New York Times, A Tainted Water Well, and Concern There May be More, Ian Urbina, 08.03.2011.

Bloomberg Businessweek, U.S. Can Try to End New York Fracking Lawsuit, Judge Rules, Tiffany Kary, 08.10.2011.

The Wall Street Journal, DiNapoli Proposes ‘Fracking’ Fund, 08.10.2011.