Shale Oil & Gas Flashcards
What is the shale boom and why is it relevant for energy law? (3)
(1) US production more than doubled between 2010 and 2019
(2) New technological development since 80s to locate the shale deposits and pintpoint where to drill horizontally
(3) Shale deposits are narrow (30-50 feet)
What are the mechanics of fracking? (3)
(1) Pressurized water
(2) Surfactants
(3) Proppants (sand or ground up golf ball)
Note – first 5,000 feet of wellbore is not protected!
What are the downsides of fracking? (5)
We know very little; other countries are cautious
(1) Groundwater - not a widespread problem, though still uncertain
(2) Water use - bigger problem since millions of gallons are used to frack and become wastewater. Companies say they “only” use 4-5% of water in state, so state legs want to ensure companies have water rights
(3) Wastewater management - no local municipal wastewater treatment plant
(4) Seismic activity - small scale ones happen but no major property damage; public policy debate re: nuisance liablity
(5) Decommissioning & clean-up - industry is ill-structured to clean up pipes and wellbores (NVP)
What are the property law issues in fracking on private land? (3)
(1) Subsurface Trespass & Rule of Capture (Garza)
(2) VERTICAL Subsurface hydraulic fracking that leads to a loss of minerals in a neighboring property is NOT trespass; rule of capture bars injunction
(3) But, if a tangible object like a wellbore crosses the boundary, then trespass liability may exist
DEPENDS ON THE STATE
Does rule of capture apply to fracking? (3)
(1) Depends on the state.
(2) No judicial relief exists for value of gas drained by fracking on neighboring property (Garza)
(3) Nobody in the industry wants subsurface trespass - commercial interests are strong
Why is fracking immune from federal regulation at present? (6)
Major statutes simply do not have much teeth on fracking due to major statutory exemptions. Most fracking occur on private lands.
(1) NEPA Cat Ex’s - no significant harm rises from certain kinds of repeated activities on federal lands, thus no need for EA or EIS
(2) CAA Major Source threshold (250 tons of certain pollutants) v. minor source - historically has not applied to fracking
(3) CWA - WOTUS + navigable waters hook required
(4) RCRA - waste water from fracking simply exempt
(5) CERCLA - O&G is exempt from superfund but still put 1 cent/barrel before (taken away now)
(6) SDWA - underground injection wells that leave things inside – fracking fluids are exempted by Energy Policy Act amd unless diesel fuel is used (Halliburton Loophole)
Where do most fracking regs come from?
State level!
What power does the FedGov have to address fracking? (2)
(1) If the drilling occurs on public land managed by BLM or USFS, then CAA/EPA preempts other agencies from regulating air quality (Wyoming v. DOI)
(2) But, Congressional Review Act (CRA) empowers L to revoke regulations promulgated in the past 180 days by simple majority!
What was Wyoming v. DOI about?
(1) BLM’s Waste Prevention Rule considered environmental impacts to the public, but also considered global climate effects.
(2) The rule prohibited venting (pure methane w/ global effects) but allowed flaring (methane converts to CO2 w/ localized effects)
(3) The rule is presented as waste-prevention but functions like air pollution regulation, which only EPA is empowered to do under CAA (clever)
Point - legal structures are different when drilling is on public land
What is Crowder (WVa) about?
About surface accomodations & fracking
Rule: Even though a mineral owner has an implied right to use the surface in any way reasonable and necessary to the development of minerals underlying the tract, it cannot use the the surface to access mining or drilling on other lands without an express agreement.
Why does flaring happen?
Flaring happens when there is no storage and transportation mechanism to capture the recovered natural gas as a byproduct of oil recovery.
