In American shale gas is required to comply with environmental laws

 　                   □ Zhang Libin/This paper 

Shale gas is an unconventional natural gas, it is a crucial part USA energy structure, and have a significant impact American shale gas success on the America energy supply. We have to ask is what are the America laws and regulations applicable to the shale gas? These act to regulate the shale gas exploitation?

USA almost no specific to the shale gas legislation (including the shale gas environmental legislation), but this did not affect us to explore the applicable laws American law in shale gas (including for the shale gas environmental legislation). Due to space constraints, this paper does not discuss the administrative law enforcement and judicial relief, the environmental protection law of course, in a larger sense, environmental protection law and the administrative law enforcement and judicial relief is more important for a country's environmental law system.

As everyone knows, American environmental laws is very developed, the federal legislative, also have state legislation, including government departments (such as American EPA) regulations, more a large number of case law fills the blank of law. The development of many of the statute law and case law are suitable for shale gas.

This also shows that the American even if there is no special law for shale gas, but the development of shale gas has a legal system is developed (including environmental laws) as the support, ensure that the shale gas revolution success.

This paper attempts to sort out the main environmental protection laws and regulations applicable to the development of shale gas USA, in order to readers get China shale gas development for environmental legislation in china.

        Private ownership of land under the protection of resources

USA land to private ownership, according to sky rules, private land owners on the surface above the sky and underground resources (including mineral resources) are privately owned. But because the rule of capture (Rule of captureThe application for the underground), oil and gas resources, only in the mining right owner mining out after the oil and gas production have property rights. Excessive but capture rule in the early development of the oil and gas industry to stimulate competition American also caused many resources and loss, so the early development of American states in the oil and gas industry on the resources protection legislation supervision. For shale gas, the state about spacing, casing, waste disposal, plugging and scrapped the provisions shall apply to all. In addition, the drilling company must obtain permission state management mechanism.

American plenty of federal, state and local regulations are made on the relevant provisions of the upper and middle reaches of the natural gas business, many of which are related to environmental protection provisions, the provisions of these Regulations are applicable to the shale gas.

In addition to the private land, some land American belong to the federal government owned public land. In order to solve the easing policy led to the "tragedy of the commons" and other issues, the strengthening and management of common specification.1976Years of federal land policy and Management Act "("Federal Land Policy and Management Act,AbbreviationFLPMA) clearly stipulates: "the commons should be reserved for all federal, unless as a result of land use planning program, the specific land disposal in the national interest." The federal government is directly responsible for the federal land management, the purpose is to safeguard the quality of their "state of nature" and "science, landscape, ecology, environment, air and air, water and archaeological value".

According to theFLPMAPublic land use, shall be subject to theFLPMALand use planning (Land use plans), and protect the content of land use planning including environmental resources. In addition,FLPMARegulations, land use planning must have a large number of public participation.

Like a private land, the government has public land is to take the way of bidding will mineral rights (Mineral rightsThe lease (oil and gas)Oil and gas leaseThe grant to the Private Companies). This approach is also applicable to the development of shale gas, unconventional natural gas. Private Companies, if successful, then it must and the government signed oil and gas lease. Under the sign of oil and gas lease, to obtain mining right of the Private Companies to pay fee to the government (Signing bous), delay rental(delayed rental)Well, the royalty (Shut-in royalty) and output (oil and gas royaltiesProduction royalty).

The government's oil and gas generally also includes obligations to comply with environmental law. For example, "America federal outer continental shelf of land law" under the oil and gas lease stipulates: "the lessee and the lessor agreed as follows:...... This lease shall abide by law and all according to the act and the date of entry into force of the existing lease regulations; all according to the future law promulgated, provisions on the prevention and control of waste and natural resources protection law...... And all other applicable laws and regulations......"

As the rule of precedent American court of priority to the right to the use of mineral surface, thus obtain mining right Private Companies can negotiate, use agreement with the surface right people sign a separate surface. Generally speaking, the mining right owner use and possession of Surface Rights embodies specific behavior following: the construction of storage tank, power station, built to the production, storage and care of oil and gas production buildings in the rental of land, the construction of roads and staff quarters, building water pit, the implementation of water injection program, as well as for the extraction of two times job purpose belongs to the owner of extraction of surface drinking water.

In this land use arrangement, get the right to the use of the surface mining right owner shall not abuse this easement. USA court often quoted is called a "reasonable care principles ("Accommodation doctrine), of mining right owner shall be restricted to the surface with the easement. If there is an alternative to allow developers to oil and gas exploitation mineral resources according to the oil and gas industry practice, according to the "reasonable care" principle, the developer should adopt alternative, and avoid the ownership of the right to the use of surface damage.

According to the surface both sides reach an agreement to use, the mining right owner may need to surface damage compensate the surface owner, but need to surface restoration. After the extraction of shale gas, shale gas generally need through the natural gas pipeline transport. Natural gas transportation of natural gas industry in the middle, a state of pipelines and interstate pipeline natural gas pipeline. Intrastate pipeline is governed by state and local laws (such as local related to land use, facility location specification).

Interstate pipeline by the Federal Energy Regulatory Commission (FERCHave jurisdiction over.FERCRegulatory functions including regulation of interstate trade in oil transportation pipeline, supervision of cross power transmission and wholesale, trade, at the same time also includes the supervision for interstate trade of natural gas transmission and distribution, more importantlyFERCAlso responsible for environmental matters relating to supervision and natural gas and Hydropower project. Applicable federal legislation and the relevant state and local legislation. Federal legislation to include1938Annual natural gas law, the law provides access to gas pipeline operators and exit permits and relevant provisions of the price regulation.

        Water pollution concerns and respond to

Shale gas mining requires the use of hydraulic fracturing (Hydraulic fracturing). At present in the USA concern is the leakage of hydraulic fracturing will lead to groundwater pollution and natural gas (Seepage of natural gas). In the environmental protection legal system American, "drinking water safety law" (Safe Drinking Water ActAbbreviationSDWA) underground perfusion regulation waste, but according to theSDWAThe fracturing process, (Fracturing process) are exempt from the regulation, development is not suitable for shale gas. Obviously, based onSDWAThe legislative intent, the federal government does not want to carry on the supervision of hydraulic fracturing, and want to put on hydraulic fracturing regulatory power to the state government.

Most states to regulate hydraulic fracturing by state oil and gas management department and the state environmental protection department. As states hold different attitudes on hydraulic fracturing, regulatory, legislative evolution will be in this area shows a different direction. At the recent possible impact on the environment on hydraulic fracturing attention, relevant state (such as Texas, Ohio, California, Wyoming, Pennsylvania, Colorado, New York, etc.) are actively engaged in legislation, enhancing protection of hydraulic fracturing requirements, however, states do not may be banned on hydraulic fracturing.

At the same time, the federal government also has the potential to further legislation, to strengthen the supervision of shale gas. Allegedly, American interior ministry's Bureau of land management (U.S. Bureau of Land ManagementAbbreviationBLM) has made provisions for hydraulic fracturing in the federal government owns the land supervision. The new federal legislation for hydraulic fracturing on public land to build, will bring about the well plugging, application requirements. USA EPA is also listen to its independent scientific advisory committee report, further understanding of hydraulic fracturing and the risk of water supply. Expected future federal legislation or the Environmental Protection Agency (AmericanEPA) regulations will be stipulated, require disclosure of fracturing fluid in the hydraulic fracturing of the company (Fracturing fluidsThe component information).

Concern is in shale gas exploitation in produced water (Produced waterAnd drilling fluid ()Drilling fluidsThe disposal problem). In hydraulic fracturing fluid additive(hydraulic fracturing fluid additives)Chemical composition in the presence of the need to be further disclosure, can be more thoroughly the potential hazards are analyzed, at the same time, in order to better respond to the public concern on the water supply resource threat. However, the production water and drilling fluid shale gas mining often needs to be discharged to surface water. In this regard, the "clean water" (AmericanClean Water Act,AbbreviationCWA) shall apply.

CWAIs American Congress1977Years for1972Amendment years "the Federal Water Pollution Control Act",CWAThe basic regulation of America sewage discharge.CWAAwarded the USA EPA(EPA)The establishment of industrial wastewater discharge standards (based on Technology), and grantEPAContinue to develop water quality standards for surface water all pollutants power. According to theCWA, any person or enterprise shall not discharge of sewage from the point source pollution to the navigable waterways, unless under the act to obtain sewage permit.CWAThe license requirements for land owners in the "of dredged or fill material" into navigable waters before, to the army corps of engineers to apply for a license.

America environmental protection department is responsible for the point source pollution (national pollutant removal system) distribution and licensing. In addition,CWAAlso provides for the point source pollution reporting obligations, the self enforcement. The law gives the administrative discretion much power requirements, point source pollution to test its emissions, regular reports and make the measurement result. Some of these reporting requirements become file content licensing point pollution source for the. Contrary to these records will be affected by the environmental protection agency punishment duty.

CWAAllow the EPA commissioned by the state government to perform a variety of administrative law enforcement tasks, including licensing, administration and enforcement. The plan states have the right to the implementation of the clean water act at the same time, the environmental protection agency still retain the state government supervision responsibility.

Finally, American public also worry that the water problem for shale gas. Hydraulic fracturing requires a lot of water. In general, a shale gas well drilling need to use2-4Millions of gallons of water. In this regard, all the states have their own water permit system, to regulate the water from surface water behavior.

        To prevent air pollution and habitat fragmentation

Shale gas will involve the emissions in the air, American "clean air act so applicable"Clean Air ActAbbreviationCAA. Air pollution emissions of the bill from the "source" of regulation of emissions. American clean air law system originated from two environmental pollution events, one is1943Years of Losangeles smog incident, the other one is1948Years of Donora incident.

Air pollution based on the situation, America Congress in1963Promulgated"1963The clean air act "(which is the America" Clean Air Act "predecessor),1967By the law of air pollution control and comprehensive first, establishment of air quality standards, but because of various reasons slow implementation, did not meet the pollution control targets.

1970The "Clean Air Act" established America today's air pollution control framework.1977Years American congress raised for new sources of emissions in the building before should do environmental assessment requirements.1990Amendment years mainly concentrated in the city of acid rain, air pollution, toxic air pollutant emissions from three aspects, and proposes the license management and strengthen the relevant law enforcement.

According to the currentCAA, fixed air pollutant emission source before the implementation of the "new" or "Reconstruction" activities, must advance the application for administrative license, only when USA EPA "prevention of major hazards" on administrative licensing, just can start construction. According to theCAAUnder the "prevention of significant deterioration of the project",In the ozone "standards" or those emissions and emissions of volatile organic compounds (more than a certain amount ofVOC) "standards" building facilities must be obtained before the construction of administrative license. High discharge entity is regarded as "the main emission sources".

In addition to the provisions of the environmental protection laws, shale gas development will also apply to the Endangered Species Act "(the" AmericaEndangered Species ActAbbreviationESA).ESAThe purpose of legislation is the rare species of plants and animals give special protection.ESAIs to1970In the passage of the bill, the bill aims to avoid the serious consequences of species extinction due to economic growth and development.1972Years, America President Nixon has given the lack of law at that time, the Congress to pass the bill legislation, the bill1973Years12Month28DaySigned by President Nixon by.

ESANot only to protect the animal, but also the entire ecological environment including plants, fungi and invertebrates are also included,The large-scale construction of shale gas wells will cause the whole land was cleared, deforestation and habitat fragmentation (Fragmentation of habitats). America "endangered species protection law" is the world's most effective legal protection of species, its effect mainly from the endangered species priority advanced legislation idea, provides the standard of ecological environment protection and powerful for government departments, but also provides a feasible system of public participation and public litigation system, clear legal provisions, careful, and operable.

(from "energy" magazine, author Department of doctor of law America University of Texas Austen School of lawJ.D.Siemens, Asia and Australia region merging chief legal adviser business)