COURT RULINGS STRENGTHEN NEPA OVERSIGHT OF GAS DRILLING ABSENT SDWA RULE

Kate Winston
Inside EPA – 9/18/2009

Key federal courts are backing activists in suits under the National Environmental Policy Act (NEPA) to review the impacts of natural gas drilling fluids on underground aquifers, rulings that activists hope will bolster pending bills to restore EPA’s Safe Drinking Water Act (SDWA) authority to oversee hydraulic fracturing -- a controversial gas drilling procedure that requires injection of chemicals into wells.

Activists also say such precedent will likely spur other groups to use NEPA to challenge the use of chemicals in gas drilling, a practice that is expected to increase as more electricity producers switch to the fuel to comply with upcoming climate change regulations.
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While environmentalists continue to push Congress to remove exemptions for the natural gas industry under the SDWA and other laws, activists are also pursuing other strategies block or increase scrutiny of natural gas drilling. For example, one group is trying to permanently block drilling in 10 areas in Wyoming and one group is challenging Marcellus shale drilling permits in Pennsylvania before the state environmental board.
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The efforts to oppose drilling are significant because environmental groups are increasingly concerned that political leaders are pushing natural gas as a “clean” fuel that could decrease carbon emissions while ignoring the negative environmental impacts of natural gas extraction.

In particular, the judge dwells on the hazardous materials in drill mud, drilling fluid and construction materials and finds that activists are likely to succeed on the merits of their arguments that the EA failed to assess the impacts from the chemicals and failed to address mitigation of possible contamination.
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The judge also highlights activists’ evidence that the aquifer in the area is highly complex and that there is a risk of breaking subterranean barriers and concludes, “This suggests that the impact of the drilling and use of drilling fluids are uncertain or involve unique or unknown risks, which again could demonstrate significance.”
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In particular, the judge dwells on the hazardous materials in drill mud, drilling fluid and construction materials and finds that activists are likely to succeed on the merits of their arguments that the [Environmental Assessment] failed to assess the impacts from the chemicals and failed to address mitigation of possible contamination.
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The judge also highlights activists’ evidence that the aquifer in the area is highly complex and that there is a risk of breaking subterranean barriers and concludes, “This suggests that the impact of the drilling and use of drilling fluids are uncertain or involve unique or unknown risks, which again could demonstrate significance.”
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And other groups are pursuing administrative challenges to natural gas drilling permits. For example, the Chesapeake Bay Foundation last month appealed two Pennsylvania water permits for drilling operations and pipeline construction to the state environmental appeals board. The challenges, which apply to drilling in the massive Marcellus shale, argue that the state did not adequately analyze the damage caused by construction and post-construction runoff.

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