What Everyone Should Know About Fracking

An overview of fracking, contemporary controversy about the process, and its current legal status in Colorado.

Fracking, the most popular term for the mining process known as hydraulic fracturing, continues to be one of the hot button legal issues in Colorado and across the United States.

But what exactly is fracking and what should every citizen know about it in order to make an informed decision regarding its pros and cons, including its potential benefits to U.S. energy policy and possible detriments to the environment?

What is Fracking?

Fracking involves injecting a highly-pressurized fluid mixture into underground oil and gas wells for the purposes of increasing their output. Fracking fluid typically consists of water, sand, and various chemicals – usually, but not exclusively, hydrochloric acid along with numerous chemical stabilizers, friction reducers, and so on. These chemicals are used to dissolve minerals and produce tiny cracks or fractures in deep rock, thus giving the process its name.

The fractures are then held open with fracking proppants – typically gels, foams, or slickwater fluids that form part of the injected fracking mixture. Once wells have been stimulated in this way, miners can extract additional hydrocarbons, including shale gas, oil, or coal seam gas, depending on the composition of the well.

Hydraulic Fracturing: A Brief History

The process of fracking has been around since the middle of the twentieth century. According to Wikipedia, in 1947 the Stanolind Oil and Gas Corporation fracked the first gas well in Grant County, Kansas. While of limited commercial success, this initial experiment led to a 1949 patent for the process granted to the Halliburton Oil Well Cementing Company. Since this time, roughly one million oil and gas wells have been fracked in the United States, as have an additional 1.5 million wells worldwide.

By 1973, the U.S. began experimenting with high-volume, or massive, hydraulic fracturing of gas wells in western states. Three years later, in 1976, the process was being commercially applied to gas shale deposits in various regions around the country. Technological advances in fracking, including the introduction of the so-called slickwater technique for extracting shale gas in 1997, have meant that shale fracking has grown in recent years from relative insignificance to providing nearly a quarter of the country’s domestic natural gas production.

Today, more than 90 percent of all wells across the United States are drilled using some form of fracking technology, according to experts in the industry.

(Additional information provided by waterworld.com, a trade magazine on water management and related technologies, and fragfocus.org.)

The Fracking Debate in Colorado

The ongoing conflict between a reasoned, economically robust energy policy and the need for environmental protection and preservation are at the heart of the contemporary fracking debate in Colorado and around the country.

We reported last November on a decision by three Front Range communities (Boulder-Longmont, Lafayette, and Fort Collins) to approve five-year bans on fracking in local areas. But, the apparent will of the voters in this matter has thus far failed to stand up to legal challenges presented by industry.

A recent Denver Business Journal article (“Judge Strikes Down Another Colorado Town’s Ban on Fracking.”) reports that the Colorado Oil & Gas Association (COGA) filed suit against the city of Fort Collins in a successful effort to cancel its five-year moratorium on fracking in Larimer County. This follows another court ruling this past July, which overturned a similar Longmont ban.

In his decision, Larimer County District Judge Gregory Lammons wrote that “the five year ban substantially impedes a significant state interest and the ban prohibits what state law allows.”

Commenting on the ruling, COGA president and CEO Tisha Schuller stated, “The message is unmistakable: Colorado’s communities … already have the tools and ability to regulate oil and gas activity to meet their local needs.”

Perhaps a five-year moratorium on a process that has already provided significant economic benefits in Colorado and elsewhere is an excessive measure. Judges in both Longmont and Fort Collins appear to think so. But, has the will of those citizens still concerned about the potential long-term environmental effects of fracking in their communities been thwarted?

This is a question to be taken up by officials in Fort Collins and Longmont should they decide to bring their cases to appeal. And, because these cases hinge on a pivotal conflict between local and state authority, we at Pippenger Hedberg Law will be keeping an eye on future developments in the ongoing debate about fracking as well.

Three Front Range Communities Ban Fracking

In the recent November 2013 election, three of four northeast Colorado communities voted in support of a five-year ban on hydraulic fracturing, or fracking.

Hydraulic fracturing is a process for extracting natural gas and petroleum from underground rock that has proven to be one of the most contentious legal issues of the electoral season in northern Colorado.

The fracking ballot initiative passed overwhelmingly in the city of Boulder, with 76 percent of voters in approval. 58 percent of Lafayette residents approved the ban, as did 55 percent of those voting in Fort Collins. The measure was defeated narrowly in nearby Broomfield, according to an International Business Times article. (“Three Colorado Cities Vote in Favor of Anti-Fracking Measures, While Initiative Fails in Broomfield by 194 Votes.”)

Fracking has proven to be one of the most divisive and controversial innovations in modern drilling and petroleum extraction technology. Proponents regard the technique, which involves the use of highly pressurized liquid to break up subterranean shale rock in order to release natural gas trapped inside, as a revolutionary solution to ongoing energy issues in the United States. But some environmental activists decry its use, arguing that fracking pollutes groundwater and may cause other lasting negative ecological effects. Overall, fracking has driven considerable debate over the continued use of fossil fuels in this country and the future of U.S. energy policy. Uncertainty about the practice has even prompted Vermont, in May of this year, to pass a statewide ban on the practice, at least until more scientific research of its long-term effects has been conducted. (“Vermont Becomes 1st State to Ban Fracking – Democracy Now!”)

The ongoing conflict between economic necessities and the desire to preserve and protect the natural environment remains at the forefront of the current fracking debate in the United States and elsewhere.

Russell Mendell, director of Frack Free Colorado, a grass-roots public advocacy group, has recently spoken out on this matter. As reported by the International Business Times, Mendell said in a statement,

When you have an industry that is exempt from the most basic provisions of the Safe Drinking Water Act and the Clean Air Act, something is obviously wrong. This says that the fracking industry cannot survive unless it passes the cost of doing business – be it health effects or air and water contamination – onto the communities in which they are drilling.

The concerns voiced by Mendell and others, however, are not universal. Former Colorado State House Representative B.J. Nikkel, who has advised private companies interested in opening the Front Range area to fracking, told the Daily Camera that the election results in Broomfield are more likely to reflect divided, but still very open, public opinion on this subject.

As the debate moves from places like Boulder and Lafayette – which come with highly Democratic constituencies – to purple Colorado, you're going to see a different outcome,

Nikkel said. "This is round one in a much longer match."(“Anti-fracking Measures Win in Lafayette, Boulder, Fort Collins.”)

While the two opposing camps in the current fracking debate continue to square off, consumers and investors are warned to take heed of potentially deceptive energy-related investment schemes. A November 15, 2013 press release from DORA, the Colorado Department of Regulatory Agencies, Division of Securities, reports that the state Commissioner has filed to appeal a trial court ruling that “purported joint venture interests in oil and gas well drilling operations purchased by … investors are not securities, and therefore are not subject to the protections for investors that exist under the Colorado Securities Act.” The case in question, Fred Joseph vs. HEI Resources, Inc., f/k/a Heartland Energy, Inc, et al., involved the Commissioner’s allegations that the defendants had used “boiler room” style, high-pressure sales tactics in order to push unwitting investors toward questionable investment opportunities in the oil and gas drilling sector. The Commissioner concluded the press release by noting that, "This issue is of vital importance to investor protection. Investments that are sold to the public by cold calling strangers with commissioned salesmen are exactly the type of investments that our securities law was intended to address. Letting this ruling stand would serve as an injustice to the investing public." (“Colorado Securities Commissioner Appeals Court Ruling in Oil and Gas Lawsuit.”)

Within the swirl of ongoing debate about fracking, energy policy, consumer interests and environmental protection, one issue remains relatively clear: fracking is here to stay and consumers are urged to inform themselves about its potential risks and benefits.