Constitutional Environmental Human Right to Water: An Economic Model of the Potential Negative Impacts of Hydraulic Fracturing on Drinking Water Quantity and Quality in Pennsylvania

The process of hydraulic fracturing (HF) for natural gas leads to two potential negative externalities: (1) a reduction in the quantity of existing drinking water, and (2) a reduction in the quality of existing drinking water. These two externalities can further conspire to lead to a broader problem: an inability to fulfill the human right to (clean or pure) water. Although the United States (US) Constitution does not grant individuals a human right to clean water, the Constitution of Pennsylvania does within Section 27. While US reliance on natural gas and the prevalence of HF as a method for procuring natural gas both increase, the two externalities may lead to actual human rights violations, especially in the Marcellus Shale region of Pennsylvania. This paper develops an economic model of the two externalities to: (1) demonstrate how violations of both the quantity and quality of available drinking water can occur; and (2) offer a fiscal policy to address the violations (i.e., a Pigovian Tax) , where a single tax on natural gas production is capable of addressing both externalities. In keeping with the current case law interpretation of Section 27 of the Constitution of Pennsylvania, a due standard of care negligence rule within a unilateral-care accident model is developed and compared to the Pigovian Tax. Depending on the nature of the market demand and supply curves for natural gas, the results indicate that the incidence of the Pigovian Tax is not fully carried by the producers while the due standard of care rule is imposed entirely on the producers (i.e., injurers). In either case, the number of producers is an important consideration for fulfillment of the human right to water.