Here in Pennsylvania, a state rich in natural gas resources, the safety and regulation of fracking wastewater pipelines have come under increasing scrutiny. A recent investigative report highlights systemic gaps in oversight, leaving communities vulnerable to environmental and public health risks. Robert Green, an industry professional working in southwestern Pennsylvania, has raised concerns over the lack of state-level regulation. According to Green, “No state agency has authority over how these wastewater pipelines are constructed, operated, and monitored.” This regulatory vacuum, he argues, poses serious risks for both the environment and public safety.
David Hess, a former Secretary of Pennsylvania’s Department of Environmental Protection (DEP), corroborates Green’s concerns. “There are no standards,” Hess stated, referring to the absence of enforceable guidelines for the construction and operation of these pipelines. The DEP, along with the state’s Public Utility Commission (PUC), lacks the jurisdiction to establish such standards, leaving operators largely unregulated.
A Devastating Pipeline Failure
One of the most striking examples of this oversight failure occurred in 2022 when a wastewater pipeline operated by Seneca Resources ruptured in Cameron County. The spill released 18,000 gallons of toxic fracking waste into a wooded area, contaminating a water well used by John Rosenberger, a retired state trooper, and his wife Paige. From a tort law standpoint, the Rosenbergers might pursue claims based on negligence, arguing that the pipeline operator failed to maintain adequate safety standards to prevent such a spill. Strict liability could also be invoked, as transporting hazardous and inherently dangerous substances like fracking waste often falls under this doctrine. Additionally, a nuisance claim could contend that the contamination disrupted their ability to use and enjoy their property, a key element in environmental tort cases. The Rosenbergers described showering in what turned out to be dangerously toxic and radioactive wastewater. According to John Rosenberger, the water was “very salty,” a hallmark of the high salinity often found in fracking waste.
From a tort law perspective, the Rosenbergers could potentially build a case based on negligence, strict liability, and nuisance. The negligence claim might focus on the operator’s failure to ensure pipeline integrity, while a strict liability claim could arise from the inherently hazardous nature of transporting fracking waste. A nuisance claim might argue that the spill interfered with the Rosenbergers’ use and enjoyment of their property, a common legal argument in environmental contamination cases.
Fracking wastewater is known to contain hazardous substances, including heavy metals such as lead and arsenic, as well as radioactive materials like radium. A 2015 study published in Environmental Science & Technology noted that radium levels in some fracking wastewater samples were as much as 5,700 times higher than the EPA’s safe drinking water limit for radium. The presence of these substances could strengthen claims for strict liability, as courts often hold parties transporting ultra-hazardous materials to a higher standard of care.
Policy and Political Implications
Governor Josh Shapiro has positioned his administration as a proponent of responsible natural gas production, emphasizing sustainable practices. However, critics argue that these policies fail to address the systemic challenges of managing the state’s annual production of 1.5 billion gallons of oil and gas wastewater. Whistleblowers like Green believe that Shapiro’s administration has downplayed the severity of the issue while operators, such as CNX Resources, are accused of whitewashing industry shortcomings.
Legal Context and Historical Parallels
The regulatory void surrounding Pennsylvania’s wastewater pipelines brings to mind similar cases and regulatory failures in the state’s history. This gap in oversight raises questions about the state’s duty to protect its citizens from environmental harm under tort principles. Legal theories of public nuisance could be applied here, arguing that the lack of regulation creates conditions that interfere with public rights, such as access to clean water and a safe environment. Additionally, under the doctrine of negligence, the state’s inaction could be interpreted as a breach of its duty to foresee and mitigate environmental risks, further exposing citizens to unnecessary hazards. One pertinent example is the 2010 Robinson Township v. Commonwealth of Pennsylvania decision, where the Pennsylvania Supreme Court struck down parts of Act 13, a law that limited local governments’ ability to regulate oil and gas activities. The court ruled that the law violated Article I, Section 27 of the Pennsylvania Constitution, which guarantees citizens the right to clean air and pure water. This landmark case underscored the state’s constitutional obligation to protect natural resources for the benefit of all residents.
Another parallel can be drawn with the 2008 Dunkard Creek fish kill, which resulted from wastewater pollution linked to oil and gas operations. The incident led to the death of over 20,000 fish and other aquatic life in Dunkard Creek, a tributary that spans Pennsylvania and West Virginia. Subsequent investigations revealed that wastewater with high levels of chlorides and total dissolved solids contributed to the proliferation of golden algae, which produced toxins lethal to aquatic life. This disaster highlighted the dangers of inadequate wastewater management and the need for stricter regulatory frameworks.
Material Vulnerabilities
The material used in wastewater pipelines further compounds the risk. High-density polyethylene (HDPE), commonly used for these pipelines, is known for its strength but is susceptible to degradation. Exposure to heat, ultraviolet radiation, and physical stress from rocks or construction equipment can compromise the integrity of HDPE pipelines. These failures could lead to negligence claims, with plaintiffs arguing that improper construction or inadequate maintenance practices directly caused the damage. In such cases, operators may be held liable for foreseeable risks associated with the degradation of materials used in pipeline construction, particularly when alternative, more durable materials could have been employed. These vulnerabilities may be pivotal in negligence claims, where plaintiffs could argue that operators failed to account for foreseeable risks, such as material degradation under environmental conditions.
Broader Implications
The absence of comprehensive oversight for wastewater pipelines not only threatens Pennsylvania’s environment but also sets a concerning precedent for other states. Legal scholars have argued that the state’s failure to regulate these pipelines could be challenged under the public trust doctrine, which mandates that natural resources be preserved for public use. Tort law, especially environmental torts like public nuisance, can intersect with the public trust doctrine to hold both operators and the state accountable. Under this framework, the state’s inaction could be viewed as a breach of its fiduciary duty to protect shared resources, while operators may be liable for creating conditions that interfere with public rights to clean air and water. This dual accountability underscores the potential for legal remedies to address both governmental and industrial negligence in safeguarding environmental health. Cases like Illinois Central Railroad Co. v. Illinois (1892) have established the principle that governments hold natural resources in trust for their citizens, a principle that could be invoked to demand stricter regulations in Pennsylvania. Moreover, environmental torts, such as public nuisance, could be pursued to hold operators accountable for the broader societal harms caused by pipeline failures.
