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Drilling the Marcellus Shale Through the Halliburton Loophole


Of all the threats posed by oil and gas companies seeking to drill in the Marcellus Shale—a geologic formation that stretches from Ohio to New York and may contain the largest supply of natural gas in the United States—hydraulic fracturing has been cited as perhaps the one we should be most worried about. That is understandable. We don’t know enough about hydraulic fracturing, or fracking, to judge whether the process will contaminate drinking water supplies, harm the environment, and have harmful effects on human health.

The oil and gas industry has been protected from any kind of serious review and claims that the chemicals used in the process are proprietary. A loophole inserted into the 2005 Energy Policy Act—known as the Halliburton Loophole—exempted fracking from regulations and oversight that would otherwise be required under the Safe Drinking Water Act.

According to Pro Publica, “the exemptions were forced through against objections, without hearings by a Republican majority and eventually tucked into the 2005 Energy Policy Act. Ever since, in the face of intense lobbying, any efforts to address the topic have stalled in committee.”

There is some hope that congress may finally reverse those exemptions. At a House Appropriations Subcommittee Hearing on Interior this week, NY-Rep. Maurice Hinchey asked the EPA to review its policy on fracking. EPA head Lisa Jackson said she thinks it’s a good idea. According to the Mid-Hudson News Network, “Jackson told Hinchey that she believed her agency should review the risk that fracturing poses to drinking water in light of various cases across the country that raise questions about the safety.”

So what is hydraulic fracturing? In short, it’s an intensive ( and also very expensive) method of extraction used to open the shale or rock and recover the gas by blasting millions of gallons of water and sand and thousands of gallons of chemicals deep into the ground. Just as drilling was getting under way in Pennsylvania, the state’s Department of Environmental Protection made public some of the ingredients used in the process. The River Reporter, a small paper serving the upper Delaware Valley asked The Endocrine Disruption Exchange (TEDX) to review the list and assess the possible health effects they may have. TEDX found that 16 of the 54 chemicals on the list have wide ranging effects on human health and the environment including birds, fish, and amphibians. Many of the chemicals are water-soluble and would move easily into surface or ground water if contamination occurred.

In New York the issue has raised particular concern because part of the Marcellus Shale lies underneath the city’s drinking water supply, not to mention the contiguous forests of the Catskill Mountains and many upstate counties. Aside from the chemicals used the building of roads, heavy truck traffic, the installation of drill pads, and the massive amounts of water that must be diverted and then stored as waste water after the fracking has been completed also pose threats to the environment.

In February, Manhattan Borough President Scott Stringer and a number of environmental groups issued a call for a ban on drilling in the city’s upstate watershed. They cited numerous cases of contaminated drinking water and contaminated wells that are likely the result of natural gas drilling (though not necessarily from fracking itself).
In what was perhaps the most alarming case—detailed in an article in Newsweek—a woman in Durango, Colorado was literally soaked by a 130-gallon frac-fluid spill. She ended up in the intensive care unit with a swollen liver, fluid in her lungs, and erratic blood counts. Though her life was at risk it took weeks for her doctor to force the company to tell him what was in the fluid and he was made to take a vow that he wouldn’t disclose what they were, even to his patient. At a hearing before the Colorado Oil and Gas Conservation Commission, a Halliburton Executive defended the industry’s secretive ways by saying, “it is much like asking Coca-Cola to disclose the formula of Coke.” But at least the soda manufacturer is required to list the ingredients it uses on the side of the can. And the first one is high fructose corn syrup. We know what that can do to human physiology.

The Stringer report details a number of other cases of water contamination from faulty storage and the use of unlined pits. In New Mexico, Governor Richardson issued a moratorium on drilling in the Galisteo Basin after hundreds of cases of water contamination from unlined pits were reported. In Utah, a pit with 150,000 barrels of fracking fluids leaked and the toxic wastewater ended up on a nearby farm. A well in Bulette County, Wyoming was found to have levels of benzene 1,500 times what are considered safe.

James F. Gennaro, Chair of the City Council’s Environmental Protection Committee said in February that, “Natural gas drilling in the city’s upstate watershed will not only contaminate our drinking water supply, but it will force the building of a filtration plant costing New York City taxpayers upwards of 20 billion…As a geologist and an activist on NYC watershed issues for almost 20 years, it is my well-informed opinion that this practice is both environmentally and economically unsustainable, and should be ruled out unequivocally by the Paterson Administration and the State Legislature.”

Perhaps now that the EPA has said the agency and congress should review the process as well as existing regulations (or the absence thereof) there’s a better chance that the rush to drill, at least in New York, will be stymied. The oil and gas industry is, however, lobbying hard. They’ve spent millions since 2008. And it may be working. A one time important advocate of tougher regulations, Rep. John Salazar, D-Colo., has declined to support the legislation citing concerns that developers may be unduly restricted if the exemption is removed. Or, as an analyst for Trout Unlimited told Pro Publica, “He [Salazar] is from an oil and gas district … that gives him a lot more credibility when working on these issues. … Those moderate Democrats are always the sticking point as to whether or not a bill actually moves.”

ADAM FEDERMAN is a writer in New York and a regular contributor to Earth Island Journal. He can be reached at:


Adam Federman is a contributing editor at Earth Island Journal.He is the recipient of a Polk Grant for Investigative Reporting, a Middlebury Fellowship in Environmental Journalism, and a Russia Fulbright Fellowship. You can find more of his work at

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