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Reaching Common Ground on Hydraulic Fracturing

By John Masson

It's hard to say which generates more heat: natural gas, or the possibility of extracting that natural gas from uncooperative rock using a controversial technique known as hydraulic fracturing.

But a Michigan Law panel discussion was more concerned with shedding light, not heat, on "fracking" in Michigan and Ohio. Fracking involves injecting high-pressure water and chemicals into the earth to break up dense rock formations that contain oil and gas. In some places, the technique has been blamed for contaminating ground water and causing other environmental problems.

Presented by the Law School's Environmental Law & Policy Program, "The Controversy Over Fracking: Will Michigan and Ohio be the Next Frontier?" featured longtime oil industry attorney John DeVries, '72, of Mika Meyers Beckett & Jones, PLC; Harold Fitch, the chief of the Office of Oil, Gas, and Minerals for the Michigan Department of Environmental Quality; Peggy Hall, director of Agriculture and Rural Law Programs at the Ohio State University; and Grenetta Thomassey, the program director for the Tip of the Mitt Watershed Council.

A full house showed up to hear the panelists, and dozens more watched a live video stream online. The discussion was moderated by Michigan Law Lecturer Sara Gosman, who also serves as a water resources attorney for the National Wildlife Federation.

Perhaps surprisingly, given how polarizing the topic can be, the panelists seemed to agree on at least some points.

The MDEQ's Fitch said fracking has been conducted in Michigan since the 1950s, although it's being used more intensively with modern horizontal drilling techniques than with the vertical wells of the past. He cited several concerns with hydraulic fracturing, including migration of fluids out of the well, excessive use of fresh water that never returns to the water table, chemical additives used in that water, and surface spills. But he emphasized that there's never been environmental contamination of groundwater as a result of hydraulic fracturing in Michigan. That's due in part, he said, to effective regulation at the state level.

"In some states there have been some problems," Fitch acknowledged. In Pennsylvania, for example, there was a steep learning curve when the current methods of hydraulic fracturing took off. That situation allowed such questionable practices as processing leftover fracking fluids with unknown chemical contaminants at local wastewater treatment plants. In Michigan, the law says fracking fluids must be trucked off site and disposed of in deep injection wells.

Ohio State's Prof. Hall said many in Ohio see the state as the next frontier for fracking. The state has extracted more than 1.5 billion barrels of oil since 1860. But that, she said, is just a fraction of the estimated 5.5 billion barrels that remain.

"Many see this as an economic boon for the state," she said.

Hall said that, in Ohio, any technical problems associated with natural gas fracking have been on the earth's surface. There have been no reports of fluids escaping into groundwater in Ohio, for example, as there have been elsewhere.

That doesn't mean there aren't issues that go along with the practice, she said. One change Buckeyes will need to get used to is the much larger scale of drilling that hydraulic fracturing enables, and the associated land use.

Like Fitch, Hall credited the state's recently revised regulations for keeping problems to a minimum.

Thomassey, of the 30-year-old Tip of the Mitt Watershed Council in the heart of Northern Michigan's prime fracking grounds, was a little less enthusiastic. She said activists have three choices in trying to deal with the practice: they can seek a permanent ban, a moratorium, or improved regulations. Tip of the Mitt is focused on improving regulations.

Thomassey's organization is mainly concerned about the skyrocketing amount of fresh water required to frack today's deeper wells. While 50,000 gallons might have been enough to accomplish the task years ago, Fitch said, fracking today's deep oil and gas wells easily can permanently contaminate more than 5 million gallons of fresh water—and much more than that, in Thomassey's estimation.

"That, in a nutshell, is why water is the focus of our work," she said.

But the group is also urging more transparency in disclosing chemicals used in fracturing formulas, and a tightening of loopholes that allow some chemicals to go unmentioned at sites if they're stored in amounts of less than 10,000 pounds.

"We want to know the basic chemicals, not the actual recipe," she said. "We agree that Michigan has a great track record. But accidents happen."

Even DeVries, who has represented oil producers for much of his career, agreed that "there are concerns…very legitimate concerns" about how fracking is conducted.

"Obviously, we have a state that is blessed with great fresh water," he said. "And my experience with big oil companies is that they share that concern. They'd rather spend money on prevention than response."

Gosman was pleased with the overall tone of the panel discussion, which she said gave her hope that the different sides can find a path forward. Gosman is working with a group of Michigan Law students on a study, funded by a grant from the National Sea Grant Law Center and co-sponsored by NWF and the Law School, of inland oil pipelines and hydraulic fracturing. The group's two reports will be released soon.

"Even on this controversial subject, there is common ground," Gosman said. "Michigan and Ohio should be able to address the impacts of fracking on water resources."

Thomassey's take was somewhat different.

"We don't really know where this is going," she said. "But if I were a betting woman, I'd bet on fracking."



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