Regulating Fracking by Protecting Plants and Wildlife

By: Rose Wilkinson, Article Editor

The potential environmental impacts of hydraulic fracturing (“fracking”) as they relate to human health have been discussed at great depth, but there are relatively few major federal laws governing fracking activities.[1] Paradoxically, much less has been written on the potential implications of fracking on endangered species of plants and nonhuman animals, but the Endangered Species Act (“ESA”) could serve as a strong legal tool for the regulation of fracking.[2] The U.S. Fish and Wildlife Service (“FWS”) now considers the potential effects of drilling activities when making listing determinations,[3] such as acknowledging that disturbance from drilling activities can displace polar bears or their primary prey.[4] When an endangered species may be harmed by fracking, drilling companies may be told to include meaningful mitigation measures in their conservation plans for “incidental take” permits under the ESA.[5]

Future development of greater numbers of fracking well pads can be expected to adversely impact endangered species, potentially triggering an increase in citizen lawsuits under the ESA.[6] Air and groundwater pollution from fracking activities can result in serious health problems in nonhuman animals, such as milk contamination, reproductive dysfunction, and mortality.[7] Plants can be adversely affected by this pollution as well.[8] Exposure to light and noise pollution emitted from active drilling can disrupt the communication systems and circadian cycles of various species of wildlife, which then leads to biological and behavioral consequences.[9]

Withdrawals of large quantities of water at fracking locations can also harm aquatic organisms by altering the flow regime, velocity, and temperature of springs, streams, and lakes; reducing the dilution effect; and increasing the concentration of contaminants in surface water.[10] Well site access roads and pipeline maintenance roads give vehicles access into areas of habitat not easily reached otherwise, increasing the potential for disturbance of plants and wildlife.[11]  The placement of well pads and construction of corresponding infrastructure can result in habitat fragmentation, which can harm species, such as the American Ginseng, whose seeds have difficulty dispersing from one forest fragment to another, and migratory animals, who must travel great distances each year to survive.[12] This inability to disperse can result in significant reproductive loss.[13]

It should be noted that a few species may actually benefit from fracking activity,[14] but any activity that harms our nation’s protected species of plants and wildlife could lead to criminal or civil penalties under the ESA.[15] From an economic standpoint, commercial oil and gas companies could benefit from understanding the business risks associated with drilling activities that may impact endangered species. Hopefully concerns over these risks will lead to the development of more efficient fracking methods that are beneficial to both human and non-humankind, including the less disruptive use of horizontal wells at existing pads[16] and the utilization of nontoxic fracking fluids.[17]


[1] Fracking is exempt from most federal environmental laws, including the National Environmental Policy Act, partly due to passage of the Energy Policy Act of 2005. See 42 U.S.C. § 15901-15952.
[2] See Fractured Fairy Tales: The Context and Regulatory Constraints for Hydraulic Fracturing, Development Issues in the Major Shale Plays, Rocky Mountain Mineral Law Foundation, (2010).
[3] Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range, 73 Fed. Reg. 28212-01 (May 15, 2008).
[4] Id.
[5] In Pennsylvania, if an Indiana bat habitat is present in a proposed drilling area, all drilling activities must occur within a limited four-month window so as not to disturb roosting bats. See Eileen Butchkoski, Indiana Bat, Pennsylvania Game Commission, available at http://www.portal.state.pa.us/portal/server.pt?open=514&objID=621014&mode=2 (last visited May 3, 2013).
[6] The ESA contains a citizen suit provision under which “any person” may sue to enforce its substantive protections, id. § 1540(g)(1).
[7] Michelle Bamberger and Robert E. Oswald, Impacts of Gas Drilling on Human and Animal Health, 22(1) New Solutions: A Journal of Environmental and Occupational Health Policy (Jan. 2012).
[8] As an example, over two dozen trees and ground vegetation adjacent to a well pad were significantly damaged or destroyed when fracking fluid escaped during drilling. M.B. Adams et al., Effects of Development of a Natural Gas Well and Associated Pipeline on the Natural and Scientific Resources of the Fernow Experimental Forest, General Technical Report NRS-7G, USDA (2011).
[9] Max Shafer and Jon Williams, Hydraulic Fracturing in New York State, 13617 Conservation Biology
Case
Study (2012), available at http://web.stlawu.edu/academics/sites/stlawu.edu.academics/files/FINAL_Hydrofracking.pdf (last visited April 20, 2013).
[10] See An Unpublished Report Submitted to the Delaware Riverkeeper Network, Bristol, Pennsylvania (“Bats”), Bat Conservation International, available at http://www.delawareriverkeeper.org/resources/Reports/Impacts_of_Shale_Gas_Development_on_Bats.pdf (last visited April 20, 2013).
[11] Erik Kiviat and Karen Schneller-McDonald, Fracking and Biodiversity: Unaddressed Issues in the New York Debate, 25(1-2) News From Hudsonia (Fall 2011), available at http://hudsonia.org/wp-content/uploads/2012/01/nfh-Fracking-biodiversity-best.pdf (last visited May 3, 2013).
[12]Id.
[13] For example, habitat fragmentation can lead to declines in ground-nesting bird populations. Id.
[14] Caribou use gravel pads associated with oil drilling for insect relief habitat, Clam Shrimp dwell in rain pools on gas pipeline roads, and species that normally utilize shrublands and young clear-cut forests may prosper in fracking areas. Jennifer Gillen and Erik Kiviat, Hydraulic Fracturing Threats to Species with Restricted Geographic Ranges in the Eastern United States, 14(4) Environmental Practice, 320-331 (Dec. 2012).
[15] 16 U.S.C. §1536(b)(4) (2006); 50 C.F.R. §402.14(i)(5) (2013).
[16] Carrizo Oil & Gas has drilled 22 wells from one drill pad that captures natural gas from 1,100 acres. Terry W. Roberson, Environmental Concerns of Hydraulically Fracturing A Natural Gas Well, 32 Utah Envtl. L. Rev. 67, 127-128 (2012).
[17] See CleanStim® Hydraulic Fracturing Fluid System, Haliburton, http://www.halliburton.com/ps/default.aspx?pageid=4184&navid=93&Subtopic=CleanStim (last visited May 3, 2013).

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