For Gas Companies, Time to Face the Music
There comes a point during a trial when a good defense attorney knows when to cut her losses and change her argument from “The defendant doesn’t own a dog” to “The defendant owns a dog, but the dog doesn’t bite.” The natural-gas industry is now reaching such a point with respect to the dangers of hydraulic fracturing (commonly called “fracking” or “fracing”).
For years, the industry has claimed that fracking poses little or no threat to nearby groundwater supplies, and for the most part, the U.S. Environmental Protection Agency (“EPA”) has agreed. A 2004 EPA study of fracking for coalbed methane drilling “did not find confirmed evidence that drinking water wells have been contaminated by hydraulic fracturing fluid injection,” and since then, Congress has taken steps to remove fracking from federal regulation including the Safe Drinking Water Act. Recent use of fracking in shale formations has brought it into the national spotlight: The 2004 study’s scientific integrity has been called into question, and several nonfederal studies have found causal links between fracking and groundwater contamination, but the federal government’s hands-off approach has persisted.
EPA’s recent findings in Pavillion, Wyoming may signal the end of that approach. In Pavillion, EPA found fracking chemicals in several area water wells, with “no indication that any industry or activity besides drilling could be to blame.” While the Agency does not explicitly say that fracking caused the contamination in Pavillion, it does concede that fracking is the most likely cause. The results of a new EPA fracking study are due in late 2012, and the Pavillion investigation—the first time the federal government has definitively linked fracking to water contamination—provides important insight into EPA’s likely conclusions.
The gas industry, however, quickly jumped into damage-control mode, attacking EPA’s methodology and, failing that, arguing that Pavillion is a special case because of its “unique geology and hydrology.” Eventually, though, natural-gas companies will have to admit that there is a causal link between fracking and groundwater contamination. Other scientific studies have found it, the public is aware of it, and now EPA seems to be heading in that direction as well. The longer the gas industry insists that fracking is safe and there is nothing to worry about, the more credibility it loses.
With the release of EPA’s draft report on the contamination in Pavillion, it is now a matter of when—not if—the federal government will officially recognize that fracking can contaminate groundwater. The gas industry should admit it and move on, so that policymakers can focus on the more important questions of acceptable risk, responsible regulation, and potential liability. We all know that there’s a dog; let’s start talking about whether it bites.
 Office of Ground Water & Drinking Water, EPA, EPA 816-F-04-017, Evaluation of Impacts to Underground Sources of Drinking Water by Hydraulic Fracturing of Coalbed Methane Reservoirs; National Study Final Report 1 (2004), available at http://www.epa.gov/ogwdw/uic/pdfs/cbmstudy_attach_uic_final_fact_sheet.pdf.
 Energy Policy Act of 2005 § 322, 42 U.S.C. § 300h(d) (Supp. V 2005) (amending Safe Drinking Water Act (SDWA), 42 U.S.C. § 300h (2000)).
 See Abrahm Lustgarten, The Hidden Danger of Gas Drilling, Bus. Wk., Nov. 24, 2008, at 77, 79, available at http://www.businessweek.com/magazine/content/08_47/b4109000334640.htm; Abrahm Lustgarten, EPA: Chemicals Found in Wyo. Drinking Water Might Be from Fracking, ProPublica (Aug. 25, 2009), http://www.propublica.org/article/epa-chemicals-found-in-wyo.-drinking-water-might-be-from-fracking-825 (“That  study . . . did not involve field research or water testing . . . .”); Letter from Weston Wilson, EPA Employee, to Senator Wayne Allard, Senator Ben Nighthorse Campbell, and Representative Diana DeGette 1, 11, 13–14 (Oct. 8, 2004), available at http://www.earthworksaction.org/pubs/Weston.pdf.
 E.g., Hazen & Sawyer, Final Impact Assessment Report: Impact Assessment of Natural Gas Production in the New York City Water Supply Watershed 49 (2009), available at http://www.nyc.gov/html/dep/pdf/natural_gas_drilling/12_23_2009_final_assessment_report.pdf; Press Release, State Univ. of N.Y. at Buffalo, ‘Fracking’ Mobilizes Uranium in Marcellus Shale, UB Research Finds (Oct. 25, 2010), http://www.buffalo.edu/news/fast-execute.cgi/article-page.html?article=118850009 (“Even though at these levels, uranium is not a radioactive risk, it is still a toxic, deadly metal . . . . We need a fundamental understanding of how uranium exists in shale.”).
 Lustgarten, EPA: Chemicals Found in Wyo. Drinking Water Might Be from Fracking, supra note 3.
 Office of Research & Development, EPA, EPA 600/R-00/000, Draft Investigation of Ground Water Contamination near Pavillion, Wyoming 33 (2011), available at http://www.epa.gov/region8/superfund/wy/pavillion/EPA_ReportOnPavillion_Dec-8-2011.pdf (“[T]he explanation best fitting the data for the deep monitoring wells is that constituents associated with hydraulic fracturing have been released into the Wind River drinking water aquifer at depths above the current production zone.”).
 Natural Gas Extraction—Hydraulic Fracturing, EPA, http://www.epa.gov/hydraulicfracture/ (last updated Jan. 5, 2012).
 Abrahm Lustgarten & Nicholas Kusnetz, Feds Link Water Contamination to Fracking for First Time, ProPublica (Dec. 8, 2011), http://www.propublica.org/article/feds-link-water-contamination-to-fracking-for-first-time.
 Press Release, Encana Natural Gas, Why Encana Refutes U.S. EPA Pavillion Groundwater Report (Dec. 12, 2011), http://www.encana.com/news-stories/news-releases/details.html?release=632327; see also Peter Folger et al., Cong. Research Serv., R42327, The EPA Draft Report of Groundwater Contamination near Pavillion, Wyoming: Main Findings and Stakeholder Responses 12–13 (2012).