Cracking Down on Fracking: What’s Next for Maryland?
Amid the intense debates over issues such as climate change, greenhouse gases, and alternative energy sources, one particular environmental issue is poised to shape the future of Maryland and its precious natural resources for the foreseeable future. Hydraulic fracturing, commonly known as fracking, is rapidly drilling its way into national news headlines, as well as into state policy, particularly in New York and Texas. See infra Part II. In Maryland, the fracking debate is well underway due to the presence of highly coveted Marcellus shale formations in the western part of the state. Md. Code Regs. 01.01.2011.11 (2011), http://mde.maryland.gov/programs/Land/mining/marcellus/Documents/01.01.2011.11.pdf. However, what Maryland does with those shale formations has yet to be decided. Id. (“Applications have been filed for permits to produce gas from the Marcellus shale in Maryland using horizontal drilling and hydraulic fracturing, but no permits have yet been issued[.]”). Will Maryland crack down on fracking?
I. Understanding Fracking and its Potential Impacts
Fracking is a “technique” employed by oil and gas companies “to produce economically viable quantities of oil and natural gas, especially from unconventional reservoirs, such as shale, tight sands, coalbeds, and other formations.” U.S. Envtl. Prot. Agency, Study of the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources: Progress Report 5 (2012), https://www.epa.gov/sites/production/files/documents/hf-report20121214.pdf [hereinafter EPA Progress Report]. The process begins with the drilling of a well and later “involves the injection of fluids under pressures great enough to fracture the oil- and gas-producing formations.” Id. The formation fractures are then propped open with “‘proppants,’ such as fine grains of sand or ceramic beads, to allow oil and gas to flow from small pores within the rock to the production well.” Id; accord Beth E. Kinne, The Technology of Oil and Gas Shale Development, in Beyond the Fracking Wars: A Guide for Lawyers, Public Officials, Planners, and Citizens 3, 10 (Erica Levine Powers & Beth E. Kinne eds., 2013).
Much of the debate centers around the impacts that fracking may have on water and air resources, ecosystems, and public health. See N.Y. St. Dep’t of Envtl. Conserv., Regulatory Program for Horizontal Drilling and High-Volume Hydraulic Fracturing to Develop the Marcellus Shale and Other Low-Permeability Gas Reservoirs: Findings Statement 9-27 (2015), http://www.dec.ny.gov/docs/materials_minerals_pdf/findingstatehvhf62015.pdf [hereinafter NYSDEC Findings Statement]. Since the publication of the EPA Progress Report in December 2012, the United States Environmental Protection Agency (EPA) has released a draft executive summary that contains its findings on the potential impacts of fracking on drinking water resources. U.S. Envtl. Prot. Agency, Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources: Executive Summary (2015), https://www.epa.gov/sites/production/files/2015-07/documents/hf_es_erd_jun2015.pdf [hereinafter EPA Executive Summary]. Although the findings have not yet been adopted as policy, the EPA found that “there are above and below ground mechanisms by which hydraulic fracturing activities have the potential to impact drinking water resources.” Id. at 6. The EPA has not addressed potential impacts on air resources, ecosystems, or public safety and health. Md. Code Regs. 01.01.2011.11 (2011).
However, the New York State Department of Environmental Conservation (NYSDEC) has addressed these concerns and has found, inter alia, that fracking has the potential to contaminate water resources, emit harmful particles into the air, and disturb ecosystems. NYSDEC Findings Statement, supra, at 9–18. NYSDEC also found that the culmination of these adverse impacts “may be associated with adverse public health outcomes.” Id. at 25.
II. Relevant State Approaches to Fracking
Of the states that have taken action on fracking, New York and Texas are the most notable. In June 2015, New York cracked down heavily on fracking with the release of the NYSDEC Findings Statement, which constituted an official ban on the practice. NYSDEC Findings Statement, supra, at 42. After a seven-year study, NYSDEC concluded that “there are no feasible or prudent alternatives that would adequately avoid or minimize adverse environmental impacts” of fracking and noted that its “chosen alternative to prohibit high-volume hydraulic fracturing is the best alternative based on the balance between protection of the environment and public health and economic and social considerations.” Id.
In stark contrast, Texas has essentially invited fracking into the state. Just one month before New York banned fracking, the Texas State Legislature passed a bill which “expressly preempt[s] the regulation of oil and gas operations by municipalities and other political subdivisions.” H.B. 40, 84th Leg., Reg. Sess. (Tex. 2015). In support of this decision, the bill explained that enacted statutes “provide effective and environmentally sound regulation of oil and gas operations” and that “it is in the interest of this state to explicitly confirm the authority to regulate oil and gas operations.” Id.
III. Fracking in Maryland
As compared to New York and Texas, Maryland currently seems to have taken a more moderate approach to fracking. In 2015, Maryland implemented a two-year fracking moratorium. Md. Code Ann. Envir. § 14-107.1(d) (West 2015). According to the moratorium, “[t]he [Maryland] Department [of the Environment] may not issue a permit for the hydraulic fracturing of a well for the exploration or production of natural gas in the State until October 1, 2017.” Id. However, as noted, there are permit applications pending that the Department of the Environment will have to act upon after October 1, 2017. Md. Code Regs. 01.01.2011.11 (2011). Thus, the moratorium is guaranteed to keep Maryland’s oil and gas resources intact for about another year, but when it expires Maryland will have to decide whether or how much it will crack down on fracking.
Throughout the state, several counties and towns have already made this decision. Most recently, the town of Friendsville prohibited fracking and storage or disposal of fracking waste within town limits. Friendsville, Md., Ordinance 2016-2 (July 5, 2016), http://www.friendsville.org/wp-content/uploads/2016/06/2016Fracking_Ban_Ordinance.pdf. This ban was significant because Friendsville is located in Garrett County, which is the westernmost Maryland county and one that could prosper most from fracking due to the presence of Marcellus shale. Md. Code Regs. 01.01.2011.11 (2011). Prince George’s County also recently amended its code and prohibited fracking within its borders “for purposes of preventing detrimental economic, environmental, and health effects of the use for the protection of the public safety, health, and welfare of the citizens and residents of the County.” Prince George’s County, Md. Code § 27-115 (2015) (effective Apr. 12, 2016).
In 2014, Montgomery County passed a resolution to prohibit fracking in the George Washington National Forest due to its location within the Potomac River Basin, which “is the sole source of drinking water for the Washington D.C Metro Region’s nearly four million residents.” Cty. Council for Montgomery Cty., Md. Res. 17-1018, Reg. Sess. (2014), http://www.montgomerycountymd.gov/COUNCIL/Resources/Files/res/2014/20140304_17-1018.pdf. Although the resolution only prohibits fracking within the national forest, the ban remains in effect until the EPA releases its final report on fracking’s potential impacts on water resources. Id.
Finally, the town of Mountain Park Lake, also located in Garrett County, banned fracking within town limits in 2011 because it found “that extraction violates the civil rights of Mountain Lake Park residents, and . . . threatens the health, safety, and welfare of residents and neighborhoods[.]” Mountain Lake Park, Md., Ordinance 2011-01 (Mar. 3, 2011).
Although the practice of fracking in Maryland is currently at a standstill, the debate on fracking is sure to continue making its way into state and local headlines. See Timothy B. Wheeler, Fracking Debate Intensifies in Western Maryland, Balt. Sun (Jan. 17, 2015, 4:17 PM), http://www.baltimoresun.com/features/green/blog/bs-md-fracking-garrett-20150109-story.html. As the moratorium expiration date draws closer, Maryland will be forced to decide whether it will follow the lead of New York and some of its own counties and towns in cracking down on fracking, or whether it will take the more lenient Texas approach.
*Megan Micco is a second-year law student at the University of Baltimore School of Law, where she serves as a staff editor for Law Review, a Law Scholar for Property and Torts, and a Legal Writing Fellow. In the summer of 2016, Megan interned with the Honorable Ellen L. Hollander in the United States District Court for the District of Maryland. For the summer of 2017, Megan will join Eccleston and Wolf, P.C. as a Law Clerk.