![handle is hein.journals/gwjeel5 and id is 1 raw text is:
ARTICLES
Hydraulic Fracturing,
Uncooperative Federalism, and
Technological Innovation
by Carlos R. Romo*
A ccording to the U.S. Department of Energy (DOE),
the [h]andling and disposal of [waste] water is the
ingle greatest environmental impediment to domestic
oil production.' In particular, hydraulic fracturing (HF)
operation (or the injection of fluids into shale formations to
extract oil and gas hydrocarbons) is water-intensive. By some
estimates, a typical hydrocarbon well requiring HF stimula-
tion activities may require an average of four million gallons
of water to initiate production.2 Between 25% and 75% of
the fluid used in HF operations flows back to the surface
after drilling operations cease (flowback water). In addi-
tion, for every barrel of oil produced, approximately three
barrels of naturally occurring saline water are released from
above or below the shale formations (produced water).3 An
estimated 98% of waste from hydrocarbon production con-
sists of this produced water or flowback water (collectively
produced water).' As domestic oil and gas development
continues to expand at nearly unprecedented rates, the oil
and gas industry faces significant regulatory uncertainty as
* Carlos R. Romo is an environmental and natural resources attorney
in the Austin office of Baker Botts L.L.R He has a JD. from the
University of Texas School of Law and a B.A. in Public Policy from
Stanford University. 7be opinions expressed in this paper are the
authori own and are not to be attributed to the authork law firm or
any client of the authori law firm.
1. U.S. DEPT OF ENERGY, OIL & NATURAL GAS ENVIRONMENTAL PROGRAM PRO-
DUCED WATER MANAGEMENT 1 (2005), available at http://www.netl.doe.gov/
technologies/oil-gas/publications/prgmfactsheets/PrgmPrdwtrMgt.pdf.
2. Id.
3. JOHN A. VEIL ET AL., A WHITE PAPER DESCRIBING PRODUCED WATER
FROM PRODUCTION OF CRUDE OIL, NATURAL GAS, AND COAL BED METH-
ANE (2004), available at http://www.circleofblue.org/waternews/wp-con-
tent/uploads/2010/08/prodwaterpaperl.pdf; U.S. ENVTL. PROT. AGENCY,
EPA/600/D-11/001, DRAFT PLAN TO STUDY THE POTENTIAL IMPACTS OF
HYDRAULIC FRACTURING ON DRINKING WATER RESOURCES 36 (2011); seeln-
novations in Water Use for Hydraulic Fracturing: Hearing Before a Meeting of
the Tex. House Comm. on Natural Res. (Feb. 13, 2013) (presentation by Karen
Sinard, Oxy Petroleum), available at http://www.legis.state.tx.us/tlodocs/83R/
handouts/C3902013021314001/C3902013021314001.pdf (follow OXY
hyperlink) (last visited Oct. 6, 2013) (One company recently reporting that it
produces up to twenty barrels of water for every barrel of oil produced.).
4. U.S. DEPT OF ENERGY, supra note 1. See also Hydraulic Fracturing and Water
Use: Get the Facts, ENERGY IN DEPTH (July 16, 2013), http://energyindepth.
org/national/hydraulic-fracturing-and-water-use-get-the-facts/.
local, state, and federal entities more closely examine how
to regulate this waste.' The governance schemes that seek to
regulate the recycling of these vast quantities of oil and gas
waste provide important, unexplored lessons about the roles
of the states and federal government in environmental regu-
lation and the states' ability to encourage needed technologi-
cal innovation through unique state regulation.6
Through a system rarely seen in the federally-dominated
environmental field, states, not the Environmental Protection
Agency (EPA) or Congress, primarily influence oil and gas
water management. States regulate produced water as an oil
and gas waste in one of three ways: (1) by allowing disposal
via injection back into the well; (2) evaporation from ponds,
treatment at a stationary treatment facility, and subsequent
discharge into surrounding waterways; or (3) reusing and
recycling the wastewater on-site or at a stationary facility.'
Water scarcity, injection well availability, water quality con-
cerns, and local water costs all affect which of these options
is used in a particular area.9
States have embarked upon a variety of regulatory
approaches to manage hydrocarbon wastewater.o Pennsylva-
nia, for example, has nearly mandated the reuse of hydrocar-
bon wastewater because of water quality concerns resulting
from prior management of produced waters at publicly owned
water treatment facilities used with drinking water. Accord-
ing to some estimates, operators are currently recycling as
much as 90% of wastewater in the state. Water scarcity is
5. Id. at 1-2.
6. See generally VEIL ET AL., supra note i.
7. Id. at 25.
8. See AM. PETROL. INST., WATER MANAGEMENT ASSOCIATED WITH HYDRAU-
LIC FRACTURING 7.1, (2010), available at http://www.shalegas.energy.gov/
resources/HF2_el.pdf. Most states define oil and gas wastes to include pro-
duced water. See, e.g., TEX. NAT. RES. CODE ANN. §91.1011(b) (West 1985)
('Oil and gas waste' includes salt water, brine, sludge, drilling mud, and other
liquid, semiliquid, or solid waste material.
9. See Av. PETROL. INST., supra note 8.
10. See, e.g., John C. Ruple & Robert B. Keiter, Water for Commercial Oil Shale
Development in Utah: Allocating Scarce Resources and the Searchfor New Sources
ofSupply, 30 J. LAND RESOURCES & ENVTL. L. 95, 133-38 (2010).
11. See Press Release, Katy Gresh, Commonwealth of Pa. Dep't of Envtl. Prot.,
DEP Calls on Natural Gas Drillers to Stop Giving Treatment Facilities Waste-
water (Apr. 19, 2011) available at http://www.portal.state.pa.us/portal/server.
JOURNAL OF ENERGY & ENVIRONMENTAL LAW
Winter 20I4](ViewImageLocal?handle=hein.journals/gwjeel5&div=1&collection=&method=preview&ext=.png&size=3)
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