Permitting Shale Gas Development

As a matter of historical practice and an exemption from the federal Safe Drinking Water Act, the regulatory framework for shale gas extraction currently resides within state permitting and enforcement structures. The 11th Circuit decision in Legal Environmental Assistance Foundation v. U.S. EPA prompted federal agency study, which resulted in Congress expressly excluding "the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities" from the definition of "underground injection." Thus, in keeping with traditional regulation of on-shore oil and gas development and groundwater, states have been left to their own devices in addressing any potential underground migration of fluids and gas as a result of hydraulic fracturing activities.Left without a federal floor of minimal regulation in permitting shale gas extraction, states have routinely modified their statutes and rules to address increasing public concern and to reflect enhanced understanding of well construction and the hydraulic fracturing process. Yet, most states have not fully utilized their statutory authority to address the environmental risk assessment that would take place if the exemption of hydraulic fracturing activities from the federal definition of "underground injection" were not present. Rather than using their statutory authority to evaluate potential environmental impacts from shale gas extraction proposals, most states permitting of oil and gas development have stuck to a traditional role: require minimum well construction standards, setbacks, and a process for groundwater supply replacement. This approach differs dramatically from the predictive model-based approach of permitting underground injection control wells