In 2009, eighteen households in Dimock, Pennsylvania had their well water contaminated after a natural-gas-extraction accident in the Marcellus Shale. In September 2010, the federal government found that Encana, a natural-gas operation making use of the same drilling techniques now being used in Pennsylvania to remove natural gas from the Marcellus Shale, contaminated the water supply of a Wyoming town so badly that residents were advised not to shower without proper ventilation. Perhaps disasters like these influenced the American Rivers organization’s decision to put two of Pennsylvania’s largest rivers on its 2010 annual list of the ten most endangered rivers in the United States. On its list, American Rivers named the Upper Delaware River America’s most endangered river, in addition to ranking the Monongahela River America’s ninth most endangered river. The stated basis for both of these dubious distinctions was each river’s location within regions of Pennsylvania experiencing increased natural-gas activity on account of their position above the Marcellus Shale.
The Marcellus Shale is an ancient geologic formation and the richest unconventional source of natural gas in the world, with the majority of it situated underneath Pennsylvania. Given the great amount of natural gas in Pennsylvania, proponents of extraction have been touting the economic benefits of drilling in the Commonwealth for several years. Though economic growth may accompany Pennsylvania’s emerging natural gas industry, extracting natural gas is not without costs, as drilling in formations like the Marcellus Shale is a very resource-intensive and highly technical process with the potential to cause significant environmental harm. An aspect of the drilling process that should be of central concern to Pennsylvania is the tremendous amount of freshwater that is necessary to carry out the drilling process. To drill a single well in the Marcellus Shale, a natural gas company requires, on average, around seven million gallons of fresh water. To get all of this freshwater, natural gas companies are making impermissible use of Pennsylvania’s rivers and streams. Some of Pennsylvania’s streams have already gone dry on account of this activity. Dry streams and reduced stream flow will likely be a recurring problem for Pennsylvania, given that currently the Commonwealth has only around 1,100 gas wells but may have up to 50,000 wells by the year 2030.
Any harm resulting from the use of massive amounts of freshwater for natural gas extraction will likely be complicated by the Commonwealth’s lack of authority to regulate the withdrawal of water. Some commentators have shown concern for potential contamination caused by natural gas extraction in the Marcellus Shale. But none have examined the problems that may result from the excessive withdrawals from Pennsylvania’s rivers and streams in particular. This Comment sets out to analyze water supply issues that may arise because of increased natural gas activity within Pennsylvania, and to explore ways in which potential problems may be caused or exacerbated by Pennsylvania’s lack of comprehensive water withdrawal regulations.
In Part II, this Comment explains why natural gas activities have increased tremendously within Pennsylvania over the last three years and discusses some of the technical aspects of hydraulic fracturing and horizontal drilling—two techniques that are necessary to make drilling in the Marcellus Shale profitable. It then highlights various environmental concerns associated with the precipitous rise in drilling, focusing primarily on water supply issues triggered by increased natural-gas extraction activities within Pennsylvania.
In Part III, this Comment details the various sources of Pennsylvania water law and the rules regarding water withdrawal in the Commonwealth. The Part first discusses Pennsylvania’s continued reliance on the common law for controlling water use and highlights the important elements of the Commonwealth’s version of riparianism. It then discusses some statutory sources of water law within Pennsylvania, before explaining the roles of the Delaware River Basin Commission (DRBC) and the Susquehanna River Basin Commission (SRBC)—two federal compacts governing water withdrawals in two-thirds of Pennsylvania.
Part IV analyzes the effectiveness of the various sources of Pennsylvania water law for dealing with the environmental problems that may accompany expanding natural gas extraction. This Part criticizes Pennsylvania’s water common law and points out various procedural and substantive problems with riparianism; most importantly, that it does not prevent environmental harm before it occurs and that it favors large-scale users on account of its vagueness. It goes on to discuss regulated riparianism, a popular alternative to the common law. It acknowledges that while regulated riparian regimes like the DRBC and the SRBC improve upon the common law, they are not ideal for guarding against environmental harm as they codify the vagueness and uncertainty at the heart of the common law’s problems.
Part IV goes on to argue that an ideal water regime is one which requires permits for water use and makes permitting decisions based on predictable, scientific standards. Finally, Part V of this Comment proposes various policies that Pennsylvania should consider adopting in order to improve its water law and to better guard against environmental harm that may result from the excessive water consumption needed for natural gas extraction in the Marcellus Shale.