Blog of law articles

(BY HUGO)

Access to water or access to gas. Which one do you choose?

In other words, is it better to protect access to water for domestic use or to allow gas extraction companies to proceed with hydraulic fracturing?

The choice is not binary, but hydraulic fracturing raises mainy issues in water management because of the water pollution it creates. Peter Gleick defines hydraulic fracturing as follows:

«Hydraulic fracturing, or fracking, is a technique that releases natural gas trapped in undergound shale formations by injecting water, chemicals, and so "frack" the rock structures and release the gas.»

This extraction technique is currently under the spotlight because it pollutes groundwater. The New York Time reports that pollution from gas companies exploiting America's biggest shale deposit (the Marcellus shale which stretches from Virginia to New York in Eastern U.S.A.) could critically damage supplies of water used for drinking and for agriculture.

This example is interesting to keep in mind when discussing the Human Rights-Based Approach (HRBA) to water. This management approach purports that access to water for domestic uses must be prioritised over other water uses.

Hydraulic fracturing appears to run contrary to the aims of the HRBA: the gas companies' use of water for extraction is prioritised over domestic and agricultural uses. This is the result of a political choice made by the American Congress. The New York Time reports that:

«In a 2004 study, the E.P.A. decided that hydraulic fracturing was essentially harmless. Critics said the analysis was politically motivated, but it was cited the following year when the Republican-led Congress removed hydraulic fracturing from any regulation under the Safe Drinking Water Act.»

Hydrogeological complexity of groundwater dynamics blur causality between pollution by gas extraction and contamination of domestic water supply. Can a plaintiff with a contaminated well file an action with any chance of success?

If yes, is reparation sufficient or prevention through tighter regulatory controls better? But then, is preventive regulation adequate or useful at all to protect water resources? Another article from the New York Time raises worrying issues on this subject...

Finally, could the user-pays principle inform the situation? Legal frameworks for drinking water usually hold water providers responsible for ensuring water quality to required standards. Should municipalities bear the costs of decontamination from gas extraction chemical contaminants? Or should the polluters pay for decontamination of the groundwater sources?