Trying Not To Fall Through The Fracking Governance Gap

Over the past year I have been working on a project to define the local impacts of hydraulic fracturing and to develop frameworks for governing these impacts at the local level. The premise of this project is simple: federal and state law do not, and are not meant to, address uniquely local impacts from the hydraulic fracturing “boom.” Along with my collaborators, John Nolon and Jessica Bacher from the Land Use Law Center at Pace Law School, and a brilliant team of students from the Yale School of Forestry and Environmental Studies and Yale Law School, we have identified dozens of these local impacts, including traffic and road degradation, noise and visual blight, stress on public services, and loss of farmland or recreational space. A new study published today in Science is a reminder that some of the impacts of hydraulic fracturing scale from local to national in scope and that the criticality of local governance does not undercut the importance of cooperative governance with federal and state policymakers. 

 

The new study from Brady Allred and co-authors is titled “Ecosystem services lost to oil and gas in North America.” The researchers used satellite date to look at “net primary production” or NPP, which is the amount of carbon that plants take in during photosynthesis less the amount they lose in respiration. Understanding NPP is a step towards understanding other ecosystem functions such as food production, biodiversity, and habitat. The authors overlapped satellite data from the years 2000-2012, comparing the changes in NPP with annual density of oil and gas activity in order to estimate annual loss of NPP relative to the build out of hydraulic fracturing infrastructure. They estimate that in central North America alone, oil and gas development has reduced NPP by roughly 4.5 teragrams of carbon. For context they note that “The total amount lost in rangelands is the equivalent to five million animal unit months (AUM; the amount of forage required for one animal for one month), which is more than half the annual available grazing on public lands managed by the U.S. Bureau of Land Management (BLM). The amount of biomass lost in croplands is the equivalent of 120.2 million bushels of wheat, ~6% of the wheat produced in 2013 within the region and 13% of wheat exported by the United States.” They further report that the total land area covered by oil and gas infrastructure such as well pads, roads, and storage facilities from 2000 to 2012 is approximately 3 million hectares, “the equivalent land area of three Yellowstone National Parks”.

 

These are obviously substantial numbers and add more rigor to the ongoing debate around “fracking.” They likewise point to a “scaling gap” that exists in land governance. As the author’s correctly note, the land use aspects of oil and gas decisionmaking happen almost entirely at the local or state level. This seems natural because the loss of a few acres of farmland or fragmentation of local habitats is ostensibly a local concern. Indeed they are a local concern, but at a certain scale—perhaps the scale we now see—these particular local impacts become national impacts.

 

This new research, therefore, reinforces that argument that no single jurisdiction should have exclusive authority over the process of governing hydraulic fracturing operations. Politicians in some states, for example, are trying to wrest control of all fracking governance from local jurisdictions, which will undermine efforts to address uniquely local impacts. But an appropriate division of authority between state and local management does not solve the larger problem: with cumulative, continental-scale ecosystem impacts, federal leadership is essential, but there is no federal law that recognizes the complexity of ecosystems and authorizes appropriate federal oversight. It is Congress’ responsibility to remedy this, and needless to say, that is not in the cards. In order to have some hope for avoiding more significant large-scale impacts, and in the absence of federal leadership, local governments must have the authority to consider land, habitat, biodiversity, and other features that can fall through a “governance gap.”