Proving Whether or Not Contamination is Caused by Oil and Gas Operations

Oil and gas development is becoming increasingly controversial in the U.S., in part because of uncertainty about the causes of groundwater contamination in active gas fields. Debates about whether contamination is caused specifically by hydraulic fracturing and whether gas wells should be regulated under the Safe Drinking Water Act rage, but without the relatively rare smoking gun, the question whether oil and gas development has caused contamination evades both scientific and legal determinations. The inability to determine causation is a problem that fuels public distrust of government and industry and deserves a serious effort to solve.

In 2010, 2,682 wells were drilled in Pennsylvania, about 500 more than in Colorado’s Garfield County. Home to the Piceance Basin, Garfield County’s natural gas boom commenced in about 2004. That year, the Colorado Oil and Gas Conservation Commission (COGCC) permitted 796 wells in Garfield County -- a number that climbed steadily to 2,888 by 2008, the peak year to date. Whereas oil and gas development was previously concentrated offshore and in more confined parts of the Gulf Coast and Rocky Mountains, it is now occurring in more heavily populated areas such as Pennsylvania. Although the industry sparked controversy in its traditional territory, the volume of the public opposition has increased as development has invaded more populous regions and much of this controversy is fueled by concerns about water quality.

During a 2009 public hearing on the New York Department of Environmental Conservation’s Supplemental Generic Environmental Impact Statement on oil and gas development, protesters in New York City held anti-development signs, interrupted official presentations and were escorted out of the venue. The New York legislature imposed a moratorium in November 2010 in order to allow the Department of Environmental Conservation to better study modern oil and gas development techniques, and federal legislators from New York, Pennsylvania and Colorado have called for federal regulation of the hydraulic fracturing (fracking) process under the auspices of the Safe Drinking Water Act (SDWA). Some of the reasons that oil and gas development is so controversial are that it is an industrial activity that is allowed under common law to encroach upon residential areas where it causes nuisance noise, odor and pollution. But it is also implicated in instances of ambient groundwater contamination that have not been fully resolved. This lack of resolution serves as a rallying cry for anti-development groups, and results partly from failures to adequately address issues of causation and proof. Public pressure, in turn, has spawned legislative proposals such as the so-called FRAC Act.