Columbia University

Graduate School of Arts & Sciences

Human Rights Studies Master of Arts Program

Revolution Shale Gas: The Right Energy Path?

A discussion of Hydraulic Fracturing’s Impact on Human Rights and Why Environmental

Pollution from Oil and Gas Extraction in the U.S. is a Human Rights Issue

Case Study of Fracking in Pennsylvania

Mette Frederiksen

Thesis Advisor: Jenik Radon

Submitted in partial fulfillment of the

requirements for the degree of

Master of Arts

February 2016

i

Abstract

This thesis discusses in what way hydraulic fracturing (fracking) of shale gas in the U.S. is

impacting human rights. As several environmental disasters have shown, the oil and gas industry

can bring severe environmental harm to nearby communities, and thereby also impact a wide

range of human rights. However, impacts from environmental pollution for instance caused by

oil spills are not addressed as a human rights issue in the U.S. This thesis therefore discusses

why they should be addressed as such. In recent years the oil and gas industry has boomed in

form of shale gas extraction by the use of hydraulic fracturing. This development is presented as

a positive step for U.S. energy policy, because it can make the U.S. independent of foreign oil

and create jobs for American workers. It is furthermore claimed by the U.S. government that

shale gas is a climate change-friendly energy source. However, residents and local organizations

on the other hand claim that the fracking boom also causes harmful impacts on local

communities, in particular negative health effects for those residing near fracking sites. In spite

of this the fracking industry continues to be exempted from several federal protective provisions,

as well as local organizations claim that state regulations also are insufficient. Based on the

increasing amount of reports and scientific studies that stress actual and potential negative

impacts, and the consistent failures in regulation and enforcement by government agencies, this

thesis argues that it is critical that fracking is addressed as a human rights issue.

ii

Acknowledgements

I want to thank those people who have supported as well as challenged me throughout this

human rights program. To my professors who have been a great inspiration and motivation for

exploring new areas of research, from law to policy, and taught us very valuable insights from

their practical experiences in the human rights field. A special thanks to Professor Belinda

Cooper, Professor Daniela Ikawa, Professor Joanne Bauer, Professor Mila Rosenthal, and my

thesis advisor Professor Jenik Radon. Also, to Kristina Eberbach and Gergana Halpern from the

Human Rights M.A. program for always being ready with support and advice. There are also

some special people without whom this experience would not have been possible and joyful; my

parents in particular. Thank you mom and dad, I am very grateful for all your help and support.

Also a special thanks to my new HRSMA and New York family who have made me feel

welcome, safe and part of this city and program from the first day I sat my food in New York

and at Columbia. To my sister and my friends at home who are always there for me with love

and support, every one of you is what is important in life. When studying human rights you

sometimes lose faith in humanity, but all of you always remind me that there still is a majority of

people who want this planet to be a safe and wonderful place for everyone.

iii

Content

Introduction .................................................................................................................................................. 4

Methodology ................................................................................................................................................. 8

Part I ............................................................................................................................................................ 11

Why should Environmental Pollution from Oil and Gas Extraction in the U.S. be addressed as a Human

Rights Issue ............................................................................................................................................. 11

Environmental Pollution and Human Rights Violations are Interrelated ........................................... 11

Environmental Pollution a Focus Area in the Work of Several UN Special Procedures ..................... 16

Part II ........................................................................................................................................................... 25

How is Environmental Pollution from Oil and Gas Extraction and Human Rights Protection

Disconnected in the U.S. ......................................................................................................................... 25

From the 1969 Santa Barbara oil spill to the 2010 Deepwater Horizon disaster ............................... 25

Human Rights Protection in the U.S. .................................................................................................. 35

Part III .......................................................................................................................................................... 41

Why Should Environmental Pollution from Fracking (also) be addressed as a Human Rights Issue: Case

Study Pennsylvania ................................................................................................................................. 41

The U.S. Shale Gas Revolution ............................................................................................................ 41

Status (quo) of Fracking in Pennsylvania ............................................................................................ 45

Human Rights Impacts ........................................................................................................................ 47

Regulatory Failures ............................................................................................................................. 54

Part IV .......................................................................................................................................................... 65

Should Fracking be Regulated or Banned ............................................................................................... 65

Fracking Bans based on Public Health Risks........................................................................................ 65

Other Human Rights Concerns ............................................................................................................ 69

Conclusion ................................................................................................................................................... 72

Bibliography ................................................................................................................................................ 75

4

Introduction

The United States has in recent years experienced a boom in shale gas extraction due to new

technological advancements of the extraction method hydraulic fracturing, referred to by many

as fracking. The expansion of shale gas extraction has played a key role in the Obama

administration’s energy policy as a means to make the U.S. independent of foreign oil, and bring

jobs and economic benefits to American workers.1 The extraction and consumption of shale gas

is furthermore part of the U.S. government’s move towards a more climate change-friendly

energy policy. One of the U.S. states that have chosen to follow the federal government’s shale

gas euphoria is Pennsylvania, which has led to a high increase in well construction and fracking

activities in the state since 2007.2 Though Pennsylvania had the right to clean air and pure water

written in to its constitution via an amendment in 1971, residents and local organizations claim

that the fast development of fracking in Pennsylvania has been followed by negative impacts for

local residents, caused by environmental pollution from fracking activities. Some of the main

concerns are health effects from water contamination and air pollution, and the fear of methane

leaks leading to explosions. These incidents can impact a range of human rights, including the

rights to water, health, livelihood and life. Another critical issue in Pennsylvania is that residents

do not have full access to information about the ongoing activities and potential impacts, in

particular in regards to risks related to the chemicals used in the fracking process. Local

1 U.S. Department of Energy, “Natural Gas”; U.S. Department of Energy, “Producing Natural Gas from Shale”; The

White House, “Energy, Climate Change, and Our Environment”; The White House, “Advancing American Energy”; U.S. Department Of State, “Bureau of Energy Resources.” 2 Pennsylvania Department of Environmental Protection, “Office of the Secretary”; ibid.; PennEnvironment, “Keep

Pennsylvania Safe From Drilling”; StateImpact Pennsylvania, “Shale Play.”

5

communities and organizations are therefore calling on the Pennsylvania government for better

monitoring and regulation, or complete ban, of the fracking industry’s negative impacts on the

environment and people in Pennsylvania.

Like Pennsylvania, other U.S. states are embracing the extraction of natural gas from shale. But

also in other states are negative human rights impacts increasingly showing, as cases of

environmental pollution become more visible. The ongoing California Porter Ranch methane

leak underscores some of the critical issues regarding the regulatory failures of the industry, and

the potential short and long lasting harm fracking can cause to the environment, and thereby also

human rights.3 However, the potential negative impacts on human rights are neither addressed on

a federal or state level.4 This might be predictable since the U.S. has not ratified many

international human rights treaties, as well as the country is not known for applying international

law, including human rights, to its domestic affairs.

The issue of environmental pollution from oil and gas extraction also raises the critical question

of how to protect against human rights abuses caused by third parties. This is a debate that has

been ongoing for several years as economic globalization have manifested multinational

companies as some of the most powerful global players.5 However, despite implementation of

3 Goldenberg, “Massive Natural Gas Storage Leak Alarms California Residents, Climate Activists”; Suzanne

Goldenberg, “A Single Gas Well Leak Is California’s Biggest Contributor to Climate Change”; Paige St. John, “Efforts to Plug Porter Ranch-Area Gas Leak Worsened Blowout Risk, Regulators Say”; Sarah Parvini and Tony Barboza, “SoCal Gas Relocates Hundreds of Porter Ranch Residents While Trying to Fix Leaking Well”; Zahira Torres and Frank Shyong, “Leaking Gas Well in Porter Ranch Area Lacked a Working Safety Valve.” 4 Though some people have been relocated and the Governor as of January has declared a state of emergency. The

leak started in October 2015. 5 United Nations Human Rights Office of the High Commissioner, “Business and Human Rights”. See also: United

Nations Human Rights Office of the High Commissioner, “Working Group on the Issue of Human Rights and

6

many international regulatory initiatives, no international treaty or court currently exist to hold

corporations accountable for human rights abuses.6 The U.S. has since the 1970s implemented

several federal environmental regulations to protect Americans from harm, as a response to

incidents of environmental pollution caused by the oil and gas industry. But the fracking industry

has been exempted from many of these protective measures. As well as several cases shows that

these regulations cannot adequately prevent that pollution will occur. Since neither international

human rights standards, nor domestic environmental regulations, are covering potential human

rights impacts from fracking, a big regulatory gap exist in the U.S. Furthermore, the shale gas

revolution is not only occurring in the U.S. While some U.S. states and several countries in

Europe and parts of Canada have decided to ban fracking due to potential negative health

impacts, other countries like Australia, Brazil and Argentina have initiated shale gas extraction

by the use of fracking. Moreover, shale gas fracked in the U.S. is not only estimated to supply

U.S. consumers, but is further projected to be exported on to the international energy market.

Fracking’ impact on human rights is therefore also of international concern. Hence, as shale gas

has come to play a key role in U.S. and international energy policy, this thesis therefore argues

that the potential human rights impacts of fracking need to be addressed.

When it comes to oil and gas extraction, and its potential impacts on human rights, it is also

relevant to ask whether regulation of the industry is enough, or whether the impacts of oil and

gas extraction are so severe and irreversible that regulation is insufficient to prevent human

Transnational Corporations and Other Business Enterprises”; Business & Human Rights Resource Centre, “Business & Human Rights Resource Centre.” 6 Though the proposal of a treaty which addresses human rights abuses by multinational corporations has been

introduced.

7

rights abuses. Though the negative effects from fracking are only just starting to emerge and gain

attention, environmental pollution from oil and gas extraction is not a new phenomenon, but has

been a consistent part of the business since its beginning. The big oil spill that polluted the ocean

and coast line of Santa Barbara, California, in 1969 showed the public and legislators that

regulatory measures were needed to protect the environment from being destroyed by the

industry. Yet, about forty years after Santa Barbara, the Deepwater Horizon oil rig explosion in

the Gulf, which killed 11 workers and sent oil into the Gulf for months, raises the questions

again as to whether the regulations put in place can prevent these incidents and to what extend

the consequences are so grave that the risks of doing business are too high for those whom the

pollution will affect. What in particular have been pointed out by organizations and affected

communities is that the industry not only is poorly regulated, but monitoring and enforcement is

also lacking when regulation is in place. This thesis will therefore address the claims raised by

organizations and affected residents and discuss why these alleged negative impacts should be

addressed as a human rights issue. In light of international human rights standards the thesis then

seeks to answer the question; to what extend the U.S. government is failing its duty to protect

against human rights violations by the oil and gas industry?

All human beings depend on the environment in which we live. A safe, clean, healthy and

sustainable environment is integral to the full enjoyment of a wide range of human rights,

including the rights to life, health, food, water and sanitation. Without a healthy environment,

we are unable to fulfil our aspirations or even live at a level commensurate with minimum

standards of human dignity.7

7 United Nations Human Rights Office of the High Commissioner, “Special Rapporteur on Human Rights and the

Environment (former Independent Expert on Human Rights and the Environment).”

8

Methodology

The definition of fracking: is one of the reasons arguments conflict when the impacts of

fracking are discussed. As the report Fracking Failures notes: “The oil and gas industry often

uses a more restrictive definition of “fracking” that includes only the actual moment in the

extraction process when rock is fractured”.8 Since all activities related to the extraction of shale

gas potentially can impact human rights, this thesis therefore argues, in line with many

organizations, that potential impacts from all parts of the fracking process need to be addressed.

The thesis also uses the short phrase “fracking” to cover the longer definition high-volume

hydraulic fracturing, which is the newer technological advanced extraction method that has

initiated the shale boom and along with it, raised concerns of negative impacts.

Choice of case study: Pennsylvania was chosen as a case study because it is one of the leading

U.S. states when it comes to shale gas extraction. It has a government that is promoting and

supporting and increase in fracking operations, and claims these are carried out without negative

impact on the environment and human health. In spite of this, many residents and organizations

have reported about incidents and unexplainable negative health effects, which they believe are

connected to the fracking activities. This case therefore highlights many of the critical questions

regarding fracking’s impact on human rights. By selecting Pennsylvania, and only one case

study, some human rights issues may not be addressed however. Texas is an interesting case as

well, as the state also is a frontrunner in the shale gas boom. One of the critical issues in Texas is

that state legislators have decided to overrule the interests of local communities and imposed a

8 Jeff Inglis and John Rumpler, “Fracking Failures,” 9.

9

ban on fracking bans. Another issue which is not obvious from the Pennsylvania case study is the

reports that fracking might be connected to a heavy increase in earthquakes in some states. This

is in particular an issue in Oklahoma. As also mentioned briefly in the introduction, the current

situation in California, the ongoing Porter Ranch methane leak is a revealing example of the risks

and regulatory failures that need to be addressed. Other human rights issues that are not

discussed in the Pennsylvania case are for instance the rights of indigenous people and the issue

of land rights, and the matter of environmental justice and non-discrimination.

Data collection and scope of research: Data has been collected from primary sources in the

form of speeches, federal and state policies, laws and constitutions, newspaper articles and

scientific studies. No interviews have been performed for this thesis, however many of the

sources used include interviews with affected rights holders. While all of these sources in

combination to great extent have illustrated how environmental pollution from oil and gas

extraction is impacting human rights, including the regulatory failures of the industry, in person

interviews with legislators, health professionals and affected individuals would have

strengthened the data. In particular in relation to the impacts of fracking since this is a newer and

very topical issue. Many reports and studies about impacts, as well as policies and court rulings,

are recent or in progress, and new information or changes may be underway.

Significance: This thesis contributes to a growing literature on the interrelation between

environmental harm and human rights protection. Though this interconnection is increasingly

being recognized and stressed by academics, international organizations and in UN resolutions

and special procedures, there is still a gap in the literature specifically addressing the matter of

fracking’s impact on human rights. Though many environmental organizations are campaigning

against the use of fracking, this thesis argues that by merely addressing fracking from an

10

environmental perspective, some human rights issues will be overlooked. Furthermore, as noted

in part I, Professor Dinah Shelton stresses that a human rights perspective to environmental harm

is important because this harm often is caused by third parties; which states with its human rights

obligations have a duty to protect against.

Structure of thesis: The thesis is divided in to four main parts. Part I will set the framework of

discussing environmental pollution as a human rights issue. Part II provides the context for why

it is important to discuss environmental pollution as a human rights issue in the U.S. by looking

back at a some case examples of how environmental pollution caused by the oil and gas industry

have impacted human right. After a look at how international human rights are implemented in

the U.S., Part III uses Pennsylvania as a case study to analyze how fracking impacts human

rights, and possible differs or follow the same pattern as other cases. Lastly, Part IV discusses to

what extent regulation can prevent human rights abuses, or whether a ban should be imposed to

secure protecting against human rights abuses caused by the industry.

11

Part I

Why should Environmental Pollution from Oil and Gas Extraction in the U.S. be

addressed as a Human Rights Issue

Environmental Pollution and Human Rights Violations are Interrelated

Though fracking is not yet a topic addressed by major international human rights organizations

like Human Rights Watch (HRW) and Amnesty International9 (Amnesty) the linkage between

environmental destruction and human rights abuses have increasingly gained attention and been

put on the advocacy-forefront of several international organizations, including HRW and

Amnesty.10

For example is HRW, which mostly is known for its research and advocacy on issues

related to civil and political rights, now also stressing the importance of human rights abuses

connected to environmental harm.11

The impacts of environmental pollution on water, livelihood,

health, life, including effects of climate change, are now being stressed as important human

rights issues.12

As well as the interconnection between environmental harm and civil and

political human rights topics like the protection of people defending land and natural resources,

9 According to their websites as of January 14, 2016.

10 Amnesty International, “Corporations”; Human Rights Watch, “Environment”; Human Rights Watch, “Health”.

Other International and U.S. organizations linking these issues include: Earthjustice, “Oil and Gas Drilling”; Earthworks, “About Earthworks”; Greenpeace, “Fracking”; Food & Water Watch, “Climate Change & Environment”; Food & Water Watch, “Fracking”; Center for International Environmental Law, “Programs”; EarthRights International, “Climate Change and Climate Justice”; EarthRights International, “Accountability and Transparency in the Extractive Industries”; EarthRights International, “Rights and Security of Earthrights Defenders.” Some of the organizations also specifically address fracking, which will be discussed later in the thesis. 11

Human Rights Watch, “Environment.” 12

Ibid.; Human Rights Watch, “Health”; Richard Pearshouse, “Dispatches”; Joseph Amon and Katharina Rall, “COP21.”

12

and access to information and participation in decision-making processes are underscored.13

One

of the critical points HRW underscores is that regulations to protect the environment and people

tend to lose effect when they “conflict with” private sector interests and the prospect of

economic growth, even in cases where local laws are in place.14

Amnesty, an organization that is

also traditionally known for its attention to civil and political rights-topics, and which also does

not appear to have fracking on the agenda, has however for several years given great attention to

economic, social and cultural rights and the issue of corporate accountability.15

Some of the

cases that have illustrated this linkage and brought the issue of pollution and human rights abuses

by corporations on to the international agenda are the chemical factory disaster in Bhopal (India),

Chevron-Texaco in Ecuador and oil extraction in the Niger Delta.16

These cases in particular

underscore the severe health risks related to the oil and gas industry’s activities, including long

lasting negative health effects and impacts on the livelihood on the affected communities. For

instance, pollution is a consistent problem in the Niger Delta, with more than 550 oil spills in

2014 according to Amnesty.17

As well as the toxic pollution from the oil industry to this day not

has been cleaned up in Ecuador.18

The site of Bhopal disaster in 1984, where toxic gas leaked

from a factory, killed 7,000-10,000 people within three days, and poisoning many more is also

13 Human Rights Watch, “Environment”; Human Rights Watch, “Health.”

14 Richard Pearshouse, “Dispatches.”

15 Amnesty International, “Corporations”; Amnesty International, “Indigenous People”; Amnesty International,

“Human Righst for Human Dignity.” 16

Amnesty International, “Thirty Years on from Bhopal Disaster: Still Fighting for Justice”; Amazon Watch, “Chevron’s Chernobyl in the Amazon”; ChevronToxico, “ChevronToxico | Environmental Impacts”; ChevronToxico, “ChevronToxico | The True Story of Chevron’s Ecuador Disaster”; Amnesty International, “NIGERIA: PETROLEUM, POLLUTION AND POVERTY IN THE NIGER DELTA”; Amnesty International, “Nigeria: Hundreds of Oil Spills Continue to Blight Niger Delta.” 17

Amnesty International, “Nigeria: Hundreds of Oil Spills Continue to Blight Niger Delta”; Amnesty International, “NIGERIA: PETROLEUM, POLLUTION AND POVERTY IN THE NIGER DELTA.” 18

ChevronToxico, “ChevronToxico | Environmental Impacts.”

13

still contaminated, exposing those living nearby to constantly to health risk.19

Lack of

information and accountability are also critical recurring issues, which the U.S. cases will

underscore not is a unique scenario.

Like some of the major international human rights advocacy organizations, fracking is not yet on

the agenda of the United Nations (UN), including the Human Rights Council (HRC).20 The

awareness of environmental regulation and human rights protection as interrelated matters is not

new however. But, environmental destruction is a more recent subject in international matters

than other areas of human rights. As stressed by one of the leading scholars in the field of

environmental protection and human rights, George Washington Law School professor Dinah L.

Shelton,21 environmental concerns caught governments’ attention already in the 1960s. Although

the interrelation between environmental protection and human rights for instance was stressed in

the Stockholm Declaration (1972)22 which underscores that “environmental protection [is] a pre-

condition for the enjoyment of human rights”23, it was not until the 1980s “the idea of the

19 ChevronToxico, “ChevronToxico | The True Story of Chevron’s Ecuador Disaster.”

20Though fracking for instance has been addressed by the former Special Rapporteur on the right to water, in her

country report on the U.S. See: Catarina de Albuquerque, “Report of the Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation, Catarina de Albuquerque. Mission to the United States of America.” 21

Shelton has published extensively on the issues of international human rights law, environmental law, and the interrelation between environmental protection and human rights, among many others; Dinah Shelton, “Human Rights, Environmental Rights, and the Right to Environment”; Shelton, Dinah, “Human Rights and the Environment: What Specific Environmental Rights Have Been Recognized.”; Shelton, “Developing Substantive Environmental Rights”; Donald K. Anton and Shelton, Dinah, Environmental Protection and Human Rights. 22

United Nations Environment Programme, “Declaration of the United Nations Conference on the Human Environment.” 23

Shelton, Dinah, “Human Rights and the Environment: What Specific Environmental Rights Have Been Recognized.,” 129; United Nations Environment Programme, “Declaration of the United Nations Conference on the Human Environment.”

14

environment as a human right” came on the agenda of the UN.24 And though fracking is still not

addressed by international bodies, the more general concerns raised by organizations regarding

the impacts of environmental destruction on water, air and health, including effects of climate

change, are now stressed in several UN resolutions and reports25 and addressed by a number of

international organs. The World Health Organization (WHO) for instance, was “the first

international organization to enshrine the enjoyment of the highest attainable standard of health

as a fundamental right of every human being” which the WHO underscores includes access to

water and food as well as health-related information.26 According to the WHO, outdoor air

pollution caused 3.7 million premature deaths on a global scale in 201227 and the organization in

particular points attention to the issues of environmental health, climate change, environmental

pollution, chemical safety, and air pollution.28 Another international body working on these

issues is the United Nations Environment Programme (UNEP), which, among other topics,

addresses chemicals and waste, which they stresses “play a critical role in today’s society and

economy [but] [a]t the same time have major impacts on our environment and human health.”29

In addition to UNEP, the United Nations Development Programme (UNDP) also touches upon

the issues related to environmental health and human rights. Like UNEP, UNDP stresses how

24 Ken Conca, “A Healthy Environment Is a Human Right.”

25 United Nations Human Rights Office of the High Commissioner, “Resolutions on Human Rights and the

Environment”; United Nations Human Rights Office of the High Commissioner, “Human Rights and the Environment”; United Nations Human Rights Office of the High Commissioner, “OHCHR Study on the Relationship between Climate Change and Human Rights”; United Nations Human Rights Office of the High Commissioner, “Human Rights and Climate Change.” 26

World Health Organization, “Human Rights.” 27

World Health Organization, “Ambient (outdoor) Air Quality and Health.” 28

World Health Organization, “Environmental Health”; World Health Organization, “WHO Calls for Urgent Action to Protect Health from Climate Change – Sign the Call”; World Health Organization, “Environmental Pollution”; World Health Organization, “Chemical Safety”; World Health Organization, “Air Pollution.” 29

United Nations Environment Programme, “Chemicals & Waste.”

15

energy patterns that are not sustainable can “threaten not only human health and quality of life,

but also affect ecosystems and contribute to climate change.”30 A main work area for the UNDP

is the sustainable development goals (SDGs) adopted by the world leaders at the United Nations

Sustainable Development Summit on 25 September 2015.31 A key focus of the new 17 SDGs is

to address root causes and build a sustainable future which, inter alia, includes ensuring access to

clean water and sanitation, urgent action on climate change, and access to clean and sustainable

energy.32 However, they are not written in a human rights language. One of the critical voices on

this issue is American University professor in International Relations and expert on UN

environmental policy and politics, Ken Conca. In an article published in the Guardian in October

2015, Conca criticizes the world governments for sidelining the idea “that a safe and healthy

environment is a human right.”33 The use of human rights law in relation to environmental

pollution is important however, according to Shelton, since:

Human rights law makes clear that while its primary objective is to protect individuals from

abuse of power by state agents, including legislative representatives of the democratic majority,

30 United Nations Development Programme, “Sustainable Energy.”

31 United Nations Development Programme, “World Leaders Adopt Sustainable Development Goals.”

32 United Nations Development Programme, “Sustainable Development Goals (SDGs).” Accessed November 7,

2015. When searching for “hydraulic fracturing” on UNDP’s website eight results show. A few of the links were broken, two links led to reports that included the topic of natural gas, but none of them containing anything on fracking’s impact on the environment and human health etc., and none of the links led to information published the UNDP’s own website (except one, which was on another topic). Search performed November 7, 2015. 33

Ken Conca, “A Healthy Environment Is a Human Right.” In his most recent book, An Unfinished Foundation: The United Nations and Global Environmental Governance (2015), Conca discusses this relation between the UN and environmental protection further. In the book Conca acknowledges that the environment now plays a central part in the UN’s work, who is now including the environment when identifying global challenges and through the establishment of UN organs that work on environmental issues, as well as through major global environmental summits conducted by the UN; Stockholm (1972), Rio de Janeiro (1992), Johannesburg (2002), and Rio (2012).

16

each state is also obliged to exercise due diligence to ensure that human rights are not violated

by non-state actors.34

This issue is especially important in environmental cases where it mainly is corporations that are

causing harm, Shelton stresses. She further notes that environmental law and science have been

used both by international and national courts as a way to determine the level of environmental

protection by human rights law, for example by making reference to WHO standards, or by

incorporating the precautionary principle—which “is applicable where, due to unavailable

scientific knowledge, there is uncertainty as to the future impact of the proposed development.“35

Environmental Pollution a Focus Area in the Work of Several UN Special Procedures

Not only have environmental pollution’s negative impacts on human rights increasingly been

recognized in international environmental regulatory frameworks, as well as the connection as

stressed above, has been stated and reiterated in several UN resolutions and reports. Also, though

there currently is no separate international treaty or specific individual article on a human right to

a safe and healthy environment, the linkage is expressed in existing international human rights

standards and related General Comments; for instance in ICESCR Article 7(b), Article 11 and

Article 12(b), CEDAW Article 11(f) and Article 14(h), and General Comments 14 and 15 on the

rights to health and water respectively, of the Committee on Economic, Social and Cultural

34 Shelton, Dinah, “Human Rights and the Environment: What Specific Environmental Rights Have Been

Recognized.,” 130. 35

Shelton, “Developing Substantive Environmental Rights,” 97 and 103.

17

Rights.36 Furthermore, as a significant international recognition of the importance of addressing

the relation between environmental harm and human rights protection, the Human Rights

Council decided in 2012 to appoint an Independent Expert on the issue of human rights

obligations relating to the enjoyment of a safe, clean, healthy and suitable environment.37 The

independent expert was in 2015 “promoted” with HRC Resolution 28/11 to become a Special

Rapporteur with a three year mandate.38 The Special Rapporteur, John Knox, stresses that

“environmental harm can and does interfere with the full enjoyment of many human rights”

including the rights to life, health and water.39 In this regard, States’ obligations fall into three

categories:

Procedural duties, which includes the duty to make assessments on environmental impacts on

human rights, to make environmental information publicly available, to facilitate public

participation in decision-making process on environmental issues and access to effective legal

remedies;

Substantive duties, which include that States have a duty to protect against third parties like

corporations. All activities that cause environmental harm is not required to be prohibited—a

balance between environmental protection and other issues is permitted, but “the balance cannot

result in unreasonable infringements of human rights”, and one of the factors taken into

consideration is whether or not a State’s action is complying with international health and

environmental standards, and;

36 United Nations Human Rights Office of the High Commissioner, “International Covenant on Economic, Social and

Cultural Rights”; United Nations Human Rights Office of the High Commissioner, “Convention on the Elimination of All Forms of Discrimination against Women New York, 18 December 1979”; United Nations Human Rights Office of the High Commissioner, “Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health”; United Nations Human Rights Office of the High Commissioner, “Committee on Economic, Social and Cultural Rights.” 37

United Nations Human Rights Office of the High Commissioner, “Special Rapporteur on Human Rights and the Environment (former Independent Expert on Human Rights and the Environment).” 38

Ibid.; United Nations Mandate on Human Rights and the Environment, “UN Mandate.” This has resulted in 14 reports that go more in to detail on the connection between a healthy and safe environment and the various existing human rights and environmental standards, as well as a separate report on climate change and human rights also is available. A concluding mapping report was presented to the Human Rights Council in March 2014. 39

John H. Knox, “Human Rights, Environmental Protection, and the Sustainable Development Goals,” 4.

18

Duties relating to those particularly vulnerable to environmental harm, which underscores

that States have additional duties to certain groups and communities that are more vulnerable.40

As Knox emphasizes, the duty of States to protect against abuses by third parties “can include

environmental harm that infringes human rights” and further notes that about one third out of

320 cases of alleged corporate-related human rights abuses reviewed by the former Special

Representative on Business and Human Rights, John Ruggie, included allegations of

environmental harm that affected human rights.41 Knox also points to other human rights bodies

that “explicitly [have] connected States’ duty to protect against human rights abuses by non-State

actors to […] pollution or other environmental harm.” The Committee on Economic, Social and

Cultural Rights for instance, in General Comment no. 15 on the right to water, in relation to

ICESCR Article 11 on the right to an adequate standard of living and Article 12 on the right to

health, stresses that:

In the context of the right to water, the Committee has made it clear that the duty to protect

extends to adopting and enforcing effective measures to restrain third parties from infringing the

right through pollution of water sources.42

As the General Comment further emphasizes, water is fundamental for life and health. It is a

prerequisite for a life in human dignity, and for the realization of other human rights.43 And this

40 Ibid., 5–6; This is further elaborated in the Special Rapporteur’s Mapping report A/HRC/25/53 from 2014 United

Nations Mandate on Human Rights and the Environment, “Mapping Report – 2014.” 41

John H. Knox, “Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, John H. Knox. Mapping Report,” 16. 42

Ibid.; COMMITTEE ON ECONOMIC, SOCIAL and AND CULTURAL RIGHTS, “General Comment No. 15 (2002). The Right to Water (arts. 11 and 12 of the International Covenant on Economic, Social and Cultural Rights).”

19

includes preventing “threats to health from unsafe and toxic water conditions” by e.g. securing

that “natural water resources are protected from contamination by harmful substances”.44

According to the General Comment, the failure of a State “to enact to enforce laws” to prevent

water from being polluted is a violation of the obligation to protect against third parties.

Moreover, individuals and groups have the right to participate in decision-making processes as

well as the right to “full and equal access to information concerning water, water services and the

environment, held by public authorities or third parties.”45

The issues of access to decision-making processes and to information were also stressed as a

critical matter of concern by former Special Rapporteur on the human right to safe drinking

water and sanitation, Ms. Catarina de Albuquerque, in her report following a country visit to the

U.S. from February to March 2011. Albuquerque performed a country visit to the U.S. although

the U.S. is not a party to the ICESCR, or other main covenants which explicit cover the right to

water. However, as she underscores in her report, the right to water is also “protected under, inter

alia, article 25 of the Universal Declaration of Human Rights” as well as:

43 COMMITTEE ON ECONOMIC, SOCIAL and AND CULTURAL RIGHTS, “General Comment No. 15 (2002). The Right

to Water (arts. 11 and 12 of the International Covenant on Economic, Social and Cultural Rights)”; United Nations Mandate on Human Rights and the Environment, “UN Mandate.” 44

COMMITTEE ON ECONOMIC, SOCIAL and AND CULTURAL RIGHTS, “General Comment No. 15 (2002). The Right to Water (arts. 11 and 12 of the International Covenant on Economic, Social and Cultural Rights)”. See also: COMMITTEE ON ECONOMIC, SOCIAL and AND CULTURAL RIGHTS, “General Comment No. 14 (2000). The Right to the Highest Attainable Standard of Health (article 12 of the International Covenant on Economic, Social and Cultural Rights).” 45

COMMITTEE ON ECONOMIC, SOCIAL and AND CULTURAL RIGHTS, “General Comment No. 15 (2002). The Right to Water (arts. 11 and 12 of the International Covenant on Economic, Social and Cultural Rights).”

20

This right was also recently recognized by the General Assembly and reaffirmed by the Human

Rights Council, with the support of the United States of America (emphasis added).46

Albuquerque notes that though the U.S. has not ratified many of the core international human

rights agreements, they have signed them. The U.S. is thereby obligated to “refrain from acts that

would defeat the object and purpose of these treaties”.47 As well as they have expressed support

as emphasized above.48

She also specifically addresses the issue of fracking and the industry’s

impact on water. One of the crucial points Albuquerque underscores is that “[w]ater and

sanitation must be safe and of good quality, and must not pose a threat to human health.”49 But,

as she notes, a decision by Congress in 2005 (the Energy Policy Act) to exempt fracking from

regulation under the Safe Drinking Water Act means that the fracking industry is the only

industry in the U.S. with permission to “inject known pollutants into the ground near water

sources without federal oversight.”50 According to Albuquerque “[a] policy disconnect seems to

exist between polluting activities and their ultimate impact on the safety of drinking water

sources.”51 She notes that the US legal regulatory framework of governing access to water is

complex, due to the combination of federal and state level regulation and common law

46 Catarina de Albuquerque, “Report of the Special Rapporteur on the Human Right to Safe Drinking Water and

Sanitation, Catarina de Albuquerque. Mission to the United States of America.,” 3. 47

Ibid., 4. 48

In a response to the report of the Special Rapporteur, a representative of the U.S. Mission to the UN in Geneva reiterate that the U.S. are committed to provide clean water and sanitation, and compliment its own achievements regarding access to water, but furthermore notes that the U.S. believe the “report often focuses on anecdotes that do not fairly depict the state of drinking water and sanitation in the United States” and that the report presents factual errors. The issue of fracking is not addressed: U.S. Mission Geneva, “U.S. Statement at the HRC Dialogue on the Right to Drinking Water and Sanitation.” 49

Catarina de Albuquerque, “Report of the Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation, Catarina de Albuquerque. Mission to the United States of America.,” 8. 50

Ibid., 11. 51

Ibid.

21

principles. But also underscores that though the right to water is not recognized on a federal

level—and have been exempted from federal protective measures—some U.S. states have

recognized the right in their own constitutions, including Pennsylvania.52 Article 1, section 27

Pennsylvania’s constitution states more specifically that:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic,

historic and esthetic values of the environment. Pennsylvania's public natural resources are the

common property of all the people, including generations yet to come. As trustee of these

resources, the Commonwealth shall conserve and maintain them for the benefit of all the

people.53

The relation between environmental pollution from toxic chemicals and access to information

and decision-making is also a central theme in the work of a third independent expert; the

Special Rapporteur on the implications for human rights of the environmentally sound

management and disposal of hazardous substances and wastes.54 The current Special

Rapporteur, Mr. Baskut Tuncak, in particular underscores the right to information, which derives

from the ICCPR Article 19 on the right to freedom of expression and ICCPR Article 25 on the

right to take part in public affairs, as a critical issue in relation to toxic substances and wastes’

impacts on human rights, especially in relation to the right to the highest attainable standard of

health:

52 Ibid., 4.

53 COMMONWEALTH OF PENNSYLVANIA, “CONSTITUTION OF THE COMMONWEALTH OF PENNSYLVANIA.”

54 United Nations Human Rights Office of the High Commissioner, “Special Rapporteur on the Implications for

Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances and Wastes.” In 1995 the Human Rights Council (at the time Commission) recognized illicit dumping of toxic and dangerous waste as an important human rights issue, and mandated it to be investigated by a Special Rapporteur. In 2011 the Special Rapporteur was then mandated to include “the whole life-cycle of hazardous products”

22

Hazardous substances and wastes are a public health issue of global concern. Pollution is the

largest cause of premature death in low- and middle-income countries. Air pollution alone kills

over 7 million people per year. One quarter of the global burden of disease and more than one

third of the burden among children are due to environmental determinants.

Non-communicable diseases that might be related to hazardous substances, among other causes,

include cancer, heart and lung disease, mental disabilities, obesity, diabetes and more.

Information is crucial to preventing human rights violations resulting from exposure to

hazardous substances and wastes; crucial information on hazardous substances and wastes is,

however, frequently unavailable.55

This is a critical issue, since information is vital for the prevention of risks, mitigation of harms,

treatment and remedy for negative impacts, and a prerequisite to research on safer alternatives.56

As well as information is important in terms of ensuring transparency and meaningful

participation in decision- and policymaking.57 In his report Tuncak underscores that this issue

also regards oil and gas extraction58 and notes that the issue of unavailable and unreliable

baseline information has been a recurring challenge in relation to people harmed by pollution

55 Baskut Tuncak, “Report of the Special Rapporteur on the Implications for Human Rights of the Environmentally

Sound Management and Disposal of Hazardous Substances and Wastes, Başkut Tuncak,” 3. See also: United Nations Human Rights Office of the High Commissioner for Human Rights, “More Efforts Needed to Protect People from Exposure to Toxic Substances – UN Expert Urges WHO”; United Nations Human Rights Office of the High Commissioner, “Right to Information on Hazardous Substances and Wastes”; United Nations Human Rights Office of the High Commissioner, “States and Businesses Must Do More to Realize the Right to Information about Hazardous Substances”; United Nations Human Rights Office of the High Commissioner, “Statement of the Special Rapporteur on the Implications for Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances and Wastes at the 30th Session of the Human Rights Council”; United Nations Human Rights Office of the High Commissioner, “For World Day for Safety and Health at Work on Tuesday, 28 April 2015”; United Nations Human Rights Office of the High Commissioner, “Baskut Tuncak, Special Rapporteur on the Implications for Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances and Wastes.” 56

Baskut Tuncak, “Report of the Special Rapporteur on the Implications for Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances and Wastes, Başkut Tuncak,” 4. 57

Ibid. 58

Ibid., 3.

23

from extractive industries. Tuncak further emphasizes lack of independent examination of

information as a critical matter.59

Another issue Tuncak points to is that the discovery of illegal dumping of toxic wastes often

happen after people have been adversely impacted.60 According to Tuncak, it can take 10-20

years before information on health effects, like cancer, from chemicals become public to those

who are exposed to the chemicals.61 Information which could have helped “prevent harm and

save lives, implicating the right to life.“62 Moreover, regarding accessibility and confidentially

claims, Tuncak emphasizes that it is only in cases of an “overriding legitimate public-interest

justification” that non-disclosure is permissible, and further stresses that “to claim that public

health and safety information on hazardous substances is confidential”, is not legitimate.63 This,

inter alia, includes information on chemical identity.64 States have an obligation to not only

refrain from interfering with access to information, but furthermore also actively “provide or

make information public with or without request.”65 As the next chapters will show, the human

rights issues stressed by the Special Rapporteurs are very relevant in relation to oil and gas

extraction in the U.S., notwithstanding they are not addressed as such by the federal and state

governments. The next chapter will first set the context of discussing the disconnection between

59 Ibid., 7.

60 Ibid.

61 United Nations Human Rights Office of the High Commissioner, “Statement of the Special Rapporteur on the

Implications for Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances and Wastes at the 30th Session of the Human Rights Council.” 62

Baskut Tuncak, “Report of the Special Rapporteur on the Implications for Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances and Wastes, Başkut Tuncak,” 7. 63

Ibid., 10. 64

Ibid., 11. 65

Ibid., 12.

24

pollution and human rights protection in the U.S., before moving in to the analysis of whether

these human rights issues also is a concern in relation to fracking in Pennsylvania.

25

Part II

How is Environmental Pollution from Oil and Gas Extraction and Human Rights

Protection Disconnected in the U.S.

From the 1969 Santa Barbara oil spill to the 2010 Deepwater Horizon disaster

The 1969 oil spill off the shore of Santa Barbara, California, which polluted the ocean and 35

miles of California’s coast was at the time the worst oil spill in U.S. history, and became a game

changer for environmental protection.66 An oil rig exploded allegedly because the safety

precautions taken by Unocal (at the time Union Oil), who had been given permission by the U.S.

Geological Survey to build a casing around the drilling hole that was shorter than the federal

minimum requirements, were inadequate.67 The consequence: an estimated rate of 1,000 gallons

of crude oil an hour, for a month, sending an estimated 3 million gallons of crude oil in total into

the ocean. It should seem obvious, but what is also notable about the 1969 Santa Barbara spill,

besides the severe environmental destruction, is that the disaster led to strong reactions and

responses from both citizens and legislators. The disaster gave force to the environmental

movement in the U.S. and led to regulatory consequences on both the state and federal level.68 In

1969 President Nixon signed the National Environmental Policy Act (NEPA) followed by

landmark federal legislation on air and water pollution, as well as the Environmental Protection

66 Christine Mai-Duc, “The 1969 Santa Barbara Oil Spill That Changed Oil and Gas Exploration Forever.”

67 Ibid.

68 For instance, in California a three year moratorium on new offshore drilling in state waters was introduced: Ibid.

26

Agency (EPA) was established.69 Industrial pollution’s impacts on the environment and human

health were from thereon to be protected through several federal regulatory Acts:

National Environmental Policy Act, 1969: The main purpose of NEPA “is to assure that

all branches of government give proper consideration to the environment prior to

undertaking any major federal action that significantly affects the environment.”70

Clean Air Act, 1970: The Clean Air Act (CAA) is “the comprehensive federal law” with the

main purpose of protecting public health and public welfare, by regulating air emissions

from stationary and mobile sources.71

According to the EPA, the Act calls on states (and the

EPA) “to solve multiple air pollution problems through programs based on the latest science

and technology information.” The EPA also stresses that hundreds of thousands of cases of

serious health effects have been prevented each year due to the CAA’ impact on air pollution

reduction.72

Occupational Safety and Health Act, 1970: The Act was passed in Congress to ensure

workers against recognized health and safety hazards, including among others; exposure to

toxic chemicals and mechanical dangers.73

Clean Water Act, 1972: The main purpose of the Clean Water Act (CWA) is to regulate the

discharges of pollutions in to U.S. waters and to regulate surface water quality standards. A

pollution control program for industry wastewater standards have been implemented by the

EPA as part of the CWA.74

Safe Drinking Water Act, 1974: The Safe Drinking Water Act (SDWA) was established

with the purpose of protecting “all waters actually or potentially designed for drinking use”

in the U.S., and applies to both underground and above ground sources. As part of the

SDWA “minimum standards for state programs to protect underground sources of drinking

water from endangerment by underground injection of fluids” is also established by the

EPA.75

Resource Conservation and Recovery Act, 1976: The main purpose of the Resource

Conservation and Recovery Act (RCRA) is to control hazardous waste. An amendment in

69 Ibid.; Martin Miller, “The Oil Spill That Sparked the Green Revolution.”

70 US EPA, “Summary of the National Environmental Policy Act.”

71 US EPA, “Summary of the Clean Air Act.”

72 US EPA, “Overview of the Clean Air Act and Air Pollution.”

73 US EPA, “Summary of the Occupational Safety and Health Act.”

74 US EPA, “Summary of the Clean Water Act.”

75 US EPA, “Summary of the Safe Drinking Water Act.”

27

1986 enabled the EPA to also look at problems related to storing of petroleum and other

hazardous wastes in underground tanks.76

Toxic Substances Control Act, 1976: This Act gives the EPA the “authority to require

reporting, record-keeping and testing requirements, and restrictions relating to chemical

substances and/or mixtures.”77

At least so it was intended. Because despite the implementation of these environmental

protection laws accidents in relation to oil and gas extraction have continued to happen in the

U.S.,78

with subsequent negative impacts on the environment, and with that also consequences

for public health and livelihoods in the affected areas. Twenty years after the historic 1969 Santa

Barbara oil spill, the title as the worst oil spill in U.S. history was taken over by the Exxon

Valdez supertanker spill in Alaska’s Prince William Sound, in 1989.79 The oil tanker had

apparently decided to leave the outbound shipping lane to avoid icebergs, but failed to avoid the

Bligh Reef which ruptured the bottom of the ship. The consequence: an estimated 11 million

gallons of crude oil spilled into the water and more than 1,300 miles of shoreline damaged.80

Hundreds of thousands of birds and marine animals were killed and many people in the region

had their lives and livelihood disrupted.81 Allegedly the spill was due to both human error,

neglect in proper construction of the ship and budget-cuts within areas like radar surveillance

76 US EPA, “Summary of the Resource Conservation and Recovery Act.”

77 US EPA, “Summary of the Toxic Substances Control Act.”

78See for instance: Democracy Now!, “State of Emergency in California as Santa Barbara Cleans Up from Another

Major Oil Spill”; Spross, “The Coal Ash Sludge In The Dan River Is Finally Getting Vacuumed Up”; Environment America, “No Offshore Drilling”; Savitz, “Why The East Coast Needs To Pay Attention To The Santa Barbara Oil Spill”; Page, “The U.S. Has An Oil Train Problem.” 79

New York Times, “Exxon Valdez Oil Spill (1989)”; History, “Exxon Valdez Oil Spill Video - Alaska”; Office of Response and Restoration, “It Took More Than the Exxon Valdez Oil Spill to Pass the Historic Oil Pollution Act of 1990”; US EPA, “Exxon Valdez Spill Profile”; Taylor, “The Exxon Valdez Oil Spill.” 80

New York Times, “Exxon Valdez Oil Spill (1989).” 81

Ibid.

28

which would have helped prevent the ship to run aground.82 Like in 1969, this oil spill was also

followed-up with regulatory improvements. On a federal level Congress subsequently passed the

Oil Pollution Act of 1990, which was partly a reaction to the Exxon Valdez disaster, but several

other non-record-setting oil spills had also showed people and politicians the harm oil spills can

do to waterways and nearby communities.83 However, despite response and recovery efforts, oil

is still negatively impacting the area where the Exxon Valdez spill happened as the shorelines are

still polluted, twenty six years after the spill, according to Earthjustice, one of the leading

environmental organizations.84 In addition Exxon still owes over 92 million dollars to the

Alaskans for damages—twenty six years after the spill.85

And while pollution from, big and small, old oil spills continues to affect the environment and

people, new accidents and pollution continue to occur. Another twenty years, and the record no

one (should) want to hold was once again beaten when the Deepwater Horizon oil rig exploded

in the Gulf of Mexico. On April 20, 2010, the well on the BP Deepwater Horizon rig (operated

by Transocean) exploded and sank in the Gulf of Mexico, killing 11 workers and injuring 17.

According to Earthjustice, the accident was no surprise:

The multinational oil giant skated through the federal permitting process because the

government allowed it to skirt a law that requires oil companies to disclose in their exploratory

drilling plans both a well blow-out scenario and a worst case scenario response plan.

82 History, “Exxon Valdez Oil Spill Video - Alaska.”

83 Office of Response and Restoration, “It Took More Than the Exxon Valdez Oil Spill to Pass the Historic Oil

Pollution Act of 1990”; US EPA, “Summary of the Oil Pollution Act”; US EPA, “Overview of the Spill Prevention, Control, and Countermeasure (SPCC) Regulation”; US EPA, “Floreffe, Pennsylvania Oil Spill.” 84

Erik Grafe, “Ignoring the History of Exxon Valdez.” 85

Ibid.

29

This practice has become the norm—oil giants are being given the rights to drill in risky

waters.86

Not only did the explosion itself have immediate fatal consequences for 11 workers, it also

became the largest marine oil drilling spill in history.87 For almost three months, an estimated

175-250 million gallons of crude oil spilled into the Gulf of Mexico88 leading to the “the worst

environmental disaster in American history”.89 According to Amnesty International USA “severe

consequences for human rights” have been caused by the spill since marine wildlife is a source

of livelihood for many of the people living in the Gulf, and the oil is therefore impacting

international human rights such as the right to an adequate standard of living (ICESCR Article

11) and the right to work (ICCPR Article 6).90 In an area that before the spill supplied one-third

of the U.S.’ consumption of seafood, fisheries might now have been destroyed forever.91 The

National Resources Defense Council (NRDC) notes that there could be a potential loss of 22,000

jobs by 2020 due to the impacts on the fishing industry.92

In addition to the negative economic impacts, Amnesty also points to a potential risk to the right

to health and a healthy environment due to the spills impact on air quality and the food chain—as

86 Earthjustice, “Challenging Offshore Oil Drilling In The Gulf Of Mexico.”

87 US EPA, “Deepwater Horizon – BP Gulf of Mexico Oil Spill.”

88 Mark Hertsgaard, “The Worst Part about BP’s Oil-Spill Cover-up: It Worked”; Natural Resources Defense Council,

“NRDC Issue Paper”; US EPA, “Deepwater Horizon – BP Gulf of Mexico Oil Spill.” 89

Mark Hertsgaard, “The Worst Part about BP’s Oil-Spill Cover-up: It Worked.” 90

Amnesty International USA, “Human Rights in the Gulf Coast.” 91

Mark Hertsgaard, “The Worst Part about BP’s Oil-Spill Cover-up: It Worked”; Earthjustice, “Challenging Offshore Oil Drilling In The Gulf Of Mexico.” 92

Natural Resources Defense Council, “NRDC Issue Paper.”

30

well as due to impacts related to the efforts to contain the spill.93 One would think the negative

effects of the oil from the worst spill in U.S. history would be more than enough to deal with for

affected communities. Nonetheless, the negative impacts caused by the oil spill may not have

stopped with the explosion and oil leak.94 Because of the company’s inadequate response plan

and failed attempts to plug the well, BP chose to use a dispersant that would keep the oil away

from the shorelines, and make it look like the oil was disappearing.95 The dispersant used is

called Corexit, but regardless of concerns raised from a “genius grant” winning scientist, Wilma

Subra, from the Louisiana Environmental Action Network (LEAN), to the state and federal

authorities against using Corexit, because of the dangerous mix of the dispersant and crude oil,

BP chose to use Corexit though, according to Subra:

The short-term health symptoms [when crude oil and Corexit is mixed] include acute

respiratory problems, skin rashes, cardiovascular impacts, gastrointestinal impacts, and short-

term loss of memory.

Long-term impacts include cancer, decreased lung function, liver damage, and kidney damage.96

Corexit had been authorized to use for oil cleanups in the U.S. in the Oil Pollution Act

(implemented after Exxon Valdez to strengthen environmental and human health protection),

and because of its own authorization the EPA could/cannot legally require BP to use a less toxic

dispersant. Former Administrator of the EPA, Lisa Jackson, has explained that she and other

officials:

93 Amnesty International USA, “Human Rights in the Gulf Coast.”

94 Mark Hertsgaard, “The Worst Part about BP’s Oil-Spill Cover-up: It Worked.”

95 Ibid.

96 Ibid.

31

had to determine, with less-than-perfect scientific testing and data, whether use of dispersants

would, despite potential side effects, improve the overall situation in the Gulf and coastal

ecosystems. The tradeoff, as I have said many times, was potential damage in the deep water

versus the potential for larger amounts of undispersed oil in the ecologically rich coastal

shallow and estuaries (emphasis added).97

The potential side effects that were also traded off are, as Subra warned, negative health effects

for clean-up workers, their families and residents in the clean-up areas according to a 2013

report, Deadly Dispersants in the Gulf: Are Public Health and Environmental Tragedies the New

Norm for Oil Spill Cleanups?, published by the Government Accountability Project (GAP), a

U.S. whistleblower-protection group, in cooperation with LEAN.98 In 2015 an addendum report

was published in which the devastating long-term health effects are further emphasized.99 The

report includes statements from affected cleanup workers and local residents who have had, or

still suffer, severe health impacts, and indicate that the impacts most likely are worse than first

anticipated. This report furthermore includes statements from witnesses who report of an

unprecedented high increase in friends and family members who after exposure to the oil and

97 Ibid.

98 Government Accountability Project, “Corexit: Deadly Dispersant in Oil Spill Cleanup”. An addendum report with

new investigative findings was released in 2015: Shanna Devine and Tom Devine, “Addendum Report to ‘Deadly Dispersants in the Gulf: Are Public Health and Environmental Tragedies the New Norm for Oil Spill Cleanups?’ Public Comments on EPA Proposed Rule to Subpart J of the National Oil and Hazardous Substances Pollution Contingency Plan That Governs the Use of Dispersants.” 99

Government Accountability Project, “Corexit: Deadly Dispersant in Oil Spill Cleanup”; Shanna Devine and Tom Devine, “Addendum Report to ‘Deadly Dispersants in the Gulf: Are Public Health and Environmental Tragedies the New Norm for Oil Spill Cleanups?’ Public Comments on EPA Proposed Rule to Subpart J of the National Oil and Hazardous Substances Pollution Contingency Plan That Governs the Use of Dispersants”. information and studies on the health effects of the exposure to crude and oil dispersants can be found on via Gulf Future, a coalition founded in the aftermath of the Deepwater Horizon oil spill: Gulf Future Coalition, “Public Health Resources Related to the BP Oil Disaster.”

32

Corexit have experienced serious health symptoms, including an unusual high number of people

diagnosed with, and dying from, cancer.100 Symptoms reported in relation to exposure:

include, but are not limited to: blood in urine and rectal bleeding; seizures; hyper-allergies to

processed foods; violent vomiting episodes that last for hours and result in rapid weight loss;

weakness and fatigue, at times leading to depression; migraines; abdominal pain attacks; skin

irritation, burning and widespread lesions; rashes; inability to withstand exposure to sun;

Multiple Chemical Sensitivity, resulting in new sensitivities to everyday household cleaning

products or petroleum based products (plastic water bottles); neurological damage resulting in

memory loss and severe IQ drop; impotence; heart palpitations; and hypertension.

Witnesses have [also] begun reporting long-term health effects, including reproductive damage

(such as genetic mutations), endocrine disruption, and cancer.101

The reported health claims have been supported by scientific studies, and one of these studies

also notes that the use of Corexit as a dispersant has been banned in the UK due to its potential

health risks for cleanup workers.102

On the other hand, according to the Deadly Dispersants in the Gulf report, BP and the federal

government argued that Corexit is as safe as Dawn dishwashing soap, publicly denied “that any

significant chemical exposure to humans existed”, and dismissed complaints from workers.103

However, what GAP also documents (based on a leaked internal BP manual), is that BP did

know about the dangers of Corexit, but the company withheld and lied about the safety of the

100 Shanna Devine and Tom Devine, “Addendum Report to ‘Deadly Dispersants in the Gulf: Are Public Health and

Environmental Tragedies the New Norm for Oil Spill Cleanups?’ Public Comments on EPA Proposed Rule to Subpart J of the National Oil and Hazardous Substances Pollution Contingency Plan That Governs the Use of Dispersants,” 8. 101

Ibid., 4. Witnesses for the two reports include scientists, medical professionals, industry leaders, and divers contracted by the federal government, whose statements support the cleanup workers’ and residents’ concerns. 102

Ibid. 103

Government Accountability Project, “Executive Summary: Deadly Dispersants in the Gulf: Are Public Health and Environmental Tragedies the New Norm for Oil Spill Cleanups?”

33

dispersant to the cleanup workers and residents—while dispersing around 1.84 million gallons of

Corexit into the Gulf and coastal areas. Including, directly spraying it on people according to

witness statements.104 Moreover, the cleanup workers were not provided with protective gear and

did not receive the federally required health and safety training, or any other training according

to witnesses.105 In addition, workers report that they were threatened with termination if they

attempted to wear protective equipment, or received termination notice if they pointed out safety

issues.106 The government’s mobile medical clinics that were set up where also placed in private

BP compounds guarded by BP security guards, which witnesses have pointed out made it harder

for the workers to report their symptoms out of fear for the consequences. The addendum report

further stresses that all health claims have been denied by BP’s Gulf Coast Claims Fund’s

throughout its 18 months of existence.107 BP has also stated that the company will only stop

using Corexit if the federal Government changes the regulations.108 According to the Addendum

104 Shanna Devine and Tom Devine, “Addendum Report to ‘Deadly Dispersants in the Gulf: Are Public Health and

Environmental Tragedies the New Norm for Oil Spill Cleanups?’ Public Comments on EPA Proposed Rule to Subpart J of the National Oil and Hazardous Substances Pollution Contingency Plan That Governs the Use of Dispersants,” 5. 105

Mark Hertsgaard, “The Worst Part about BP’s Oil-Spill Cover-up: It Worked”; Government Accountability Project, “Corexit: Deadly Dispersant in Oil Spill Cleanup.” 106

Government Accountability Project, “Corexit: Deadly Dispersant in Oil Spill Cleanup.” 107

Shanna Devine and Tom Devine, “Addendum Report to ‘Deadly Dispersants in the Gulf: Are Public Health and Environmental Tragedies the New Norm for Oil Spill Cleanups?’ Public Comments on EPA Proposed Rule to Subpart J of the National Oil and Hazardous Substances Pollution Contingency Plan That Governs the Use of Dispersants.” 108 Government Accountability Project, “Corexit: Deadly Dispersant in Oil Spill Cleanup.” The Addendum report

was submitted as “Public Comments on EPA Proposed Rule to Subpart J of the National

Oil and Hazardous Substances Pollution Contingency Plan”, when the EPA was in the process of updating the regulations. According to the EPA’s NCP Product Schedule from November 2015, some Corexit numbers do appear under “removed products”, but the Corexit number 9500A listed in some of the Addendum report’s references does not match the numbers on the NCP list. It is beyond the scope and ability of this thesis to assess whether the Corexit numbers listed means that Corexit is definitely no longer used.

34

report, the U.S. Coast Guard and BP have declared the cleanup complete.109 The U.S. Human

Rights Network (USHRN) on the other hand stresses in a recent report that fisheries are still

affected in the Gulf coast areas hit by the Deepwater Horizon disaster, and that “oil is still

washing ashore from Florida to Louisiana.”110 The report further notes that some workers have

been detected to be carrying biomarkers of chemicals from the spill in their bodies. All the while

seafood is being bought and tourists are swimming in the Gulf, uninformed of potential risks.

“[N]othing about oil drilling is foolproof. It always has a risk.”

(Rep. Lois Capps (D-Santa Barbara)).111

One of the critical issues the cases above show is that the negative impacts often are caused by

the industry. Moreover, there are no signs of any authorities, federal or state, stepping in

adequately to protect the affected people from harm. Rather, these cases indicates that regulatory

measures are failing to prevent accidents leading to harm and that compliance and enforcement

of regulations not always appear to apply to the oil and gas industry, or be adequately enforced.

But the essential point about establishing an international human rights regime after the World

War II was to underscore that States have a duty to protect individuals within its territory from

harm, which include protecting against abuses by third parties. The next section of the chapter

109 Shanna Devine and Tom Devine, “Addendum Report to ‘Deadly Dispersants in the Gulf: Are Public Health and

Environmental Tragedies the New Norm for Oil Spill Cleanups?’ Public Comments on EPA Proposed Rule to Subpart J of the National Oil and Hazardous Substances Pollution Contingency Plan That Governs the Use of Dispersants.” 110

US Human Rights Network, “Advancing Human Rights: A Status Report on Human Rights in the United States,” 9. 111

Christine Mai-Duc, “The 1969 Santa Barbara Oil Spill That Changed Oil and Gas Exploration Forever.”

35

will therefore now look into how people are protected by international human rights standards in

the U.S., including how they are supposed to be protected from violations caused by third

parties, like corporations.

Human Rights Protection in the U.S.

Currently there is no legally binding international treaty that gives corporations the same human

rights obligations as states, as well as there is no international court devoted to cases where

corporations themselves have violated, or have been complicit in human rights abuses. But as

economic globalization has expanded and corporations have become very powerful players, in

particular multinational corporations (MNCs), the question of how to regulate non-state actors,

and human rights abuses these actors may cause or contribute to, has become a key international

human rights issue.112 Most recently the Human Rights Council (HRC) unanimously endorsed

the Guiding Principles on Business and Human Rights (Guiding Principles)113 developed by the

then Special Representative to the Secretary-General, John Ruggie, as an implementation tool for

his prior work the “Protect, Respect, and Remedy” Framework.114 It is notable that they were

112 Many initiatives have been, and continue to be, developed. But what recognize all of those that have been

established and put into practice, is their voluntary character. Initiatives like the UN Global Compact, OECD Guidelines for Multinational Corporations, the Voluntary Principles on Security and Human Rights, and the Equator Principles, to mention a few, have gained traction within the business community as well as, to some extent, been accepted by (some) non-governmental organizations (NGOs). However, there is currently no international mechanism to hold those companies who do not adhere to these initiatives legally accountable. 113

John Ruggie, “Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework.” 114

John Ruggie, “Protect, Respect and Remedy: A Framework for Business and Human Rights. Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie.”

36

unanimously endorsed by the HRC, but the Guiding Principles are still merely voluntary

guidelines, unless they become implemented into domestic law. Nonetheless, though the Guiding

Principles do not create any new law obligations for States they do point to States’ “existing

obligations to respect, protect and fulfil human rights and fundamental freedoms” which include

protecting against third parties such as corporations.115 As part of the implementation phase of

the Guiding Principles States have to develop National Action Plan (NAPs), that explain how

they are intending to integrate the Guiding Principles into domestic policies and legislation.116

President Obama announced in September 2014 that the U.S. government is in the process of

developing such action plan for the U.S. government.117 However, in line with characteristic U.S.

attitude towards international law and applicability of international treaties, including human

rights standards, to U.S. domestic affairs, the statement focuses on “responsible and transparent

business conduct overseas.”118 (Emphasis added).

As the US Human Rights Network (USHRN) notes in a status report from December 2014, the

U.S actually played a central role in the creation of the international human rights regime

following World War II, for instance by taking a lead in the drafting of the Universal Declaration

of Human Rights (UDHR), which the U.S. has also signed.119 Nevertheless, in spite of the U.S.

115 John Ruggie, “Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect,

Respect and Remedy’ Framework,” 2. 116

Office of the High Commissioner for Human Rights, “State National Action Plans.” 117

Bureau of Democracy, Human Rights and Labor, “U.S. National Action Plan.” 118

Ibid. 119

US Human Rights Network, “Advancing Human Rights: A Status Report on Human Rights in the United States,” 2.

37

government’s advocacy for human rights protection in other countries120 the U.S. has failed “to

support the full enforceability of human rights law” though “many individuals within the

jurisdiction of the United States face egregious human rights violations in nearly every area

imaginable.”121 This is for example shown by the fact that the U.S. only has ratified three out of

the ten core human rights treaties.122 The U.S. has ratified the International Covenant on Civil

and Political Rights (ICCPR) (with reservations, understandings and declarations however), but

has on the other hand failed to ratify the other main covenant of the International Bill of Rights;

the International Covenant on Economic, Social and Cultural Rights (ICESCR), as well as the

U.S. now is the only UN member state not to have ratified the Convention on the Rights of the

Child.123 It is particularly treaties that address social and economic rights—which are not

recognized in the United States Constitution—that the U.S. has failed to ratify. However, as the

former Special Rapporteur on the right to water stressed in her report; by signing an international

treaty the U.S. commits not to undermine the purpose of that treaty, and the ICESCR is one of

the treaties the U.S. has signed.

According to the Society of American Law Teachers, the intention of the constitutional structure

of the U.S. political system was originally to protect people, because the governments would

120 Bureau of Democracy, Human Rights and Labor, “Issues”; The Office of Policy Planning and Public Diplomacy, in

the Bureau of Democracy, Human Rights and Labor, of the U.S. Department of State, “Issues.” 121

US Human Rights Network, “Advancing Human Rights: A Status Report on Human Rights in the United States,” 2. 122

Office of the High Commissioner for Human Rights, “Status of Ratification Interactive Dashboard”. Though the President holds the power to make and sign treaties, it requires a two thirds majority vote in the Senate for a treaty to be approved for ratification. See United States Constitution, Article II, Section 2: Archives.gov, “The Constitution of the United States: A Transcription”. This structure can in some case can be an extra obstacle, for instance in the recent attempt in 2012 to ratify the Convention on the Rights of Persons with Disabilities (CRPD): June Zeitlin, “Disability Rights Convention Rejected by U.S. Senate.” 123

Office of the High Commissioner for Human Rights, “Status of Ratification Interactive Dashboard.”

38

control each other and thereby “provide a double security to the rights of the people.”124

However, not only is the U.S. placed in the low end among UN member states in terms of how

many of treaties a country has ratified, what also characterizes the U.S. is the use of

Reservations, Understandings, and Declarations (RUDs). This, the USHRN stresses, is practiced

by the U.S. government because “it claims that domestic law is sufficient to meet the standards

enshrined in human rights law”.125 But as the oil spill cases presented in previous section have

indicated, there is reason to question whether this is currently the situation in relation to human

rights abuses caused by oil and gas extraction in the U.S.

The USHRN further notes that the U.S. federal system, which divides powers between the

sovereign federal government and state governments, is a challenge for the U.S. in relation to the

implementation of international law. This complexity is further elaborated by Society of

American Law Teachers which notes that:

International treaties and, traditionally, customary international law and general principles as

U.S. federal law are supreme over the law of the states.

For treaties, the Constitution makes it crystal clear that they are part of the “supreme law” of the

land, although a Supreme Court opinion early in the U.S. history created the doctrine of “non-

124 The Society of American Law Teachers, “A Short Primer on U.S. Federalism and the International Convention on

the Elimination of All Forms of Racial Discrimination (ICERD), Prepared at the Request of the US Human Rights Network.” 125

US Human Rights Network, “Advancing Human Rights: A Status Report on Human Rights in the United States,” 2. See also: The Society of American Law Teachers, “A Short Primer on U.S. Federalism and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Prepared at the Request of the US Human Rights Network.”

39

self-executing” treaties, which requires Congressional action in order for “non-selfexecuting

treaties” to become law.126

But, as the USHRN and the Human Rights Committee to the International Covenant on Civil and

Political Rights, in their fourth periodic report on the U.S, have stressed; since international

human rights law is binding on all countries, regardless of their international political structures,

“the federal, state, and local authorities [thereby] share responsibility for implementing

international human rights obligations”. This includes “that all branches of government and other

public or governmental authorities at every level are in a position to engage the responsibility of

the State party.”127 In a submission to the Human Rights Committee of the ICCPR with

suggested issues for a U.S. Task Force, Columbia Law School Human Rights Institute (the

Institute) too notes that every levels of government in a country have a responsibility to

implement human rights standards. Which is underscored “extend to all parts of federal states

without any limitations of exceptions.” (Emphasis added).128 And since several issues in the

ICCPR fall within the jurisdiction of the state and local governments, they therefore play a

central role as “partners in ensuring compliance”.129 But according to the Institute “many state

and local officials are unaware of the treaties the U.S. has ratified” as well as they “lack the

funding and resources necessary to effectively collect and analyze data on human rights

126 The Society of American Law Teachers, “A Short Primer on U.S. Federalism and the International Convention on

the Elimination of All Forms of Racial Discrimination (ICERD), Prepared at the Request of the US Human Rights Network.” 127

US Human Rights Network, “Advancing Human Rights: A Status Report on Human Rights in the United States,” 3. See also HRC report on concluding observations on fourth periodic report of the U.S.: Human Rights Committee, “Concluding Observations on the Fourth Periodic Report of the United States of America.” 128

Columbia Law School Human Rights Institute, “U.S. Compliance with the International Covenant on Civil and Political Rights Suggested List of Issues to Country Report Task Force on the United States,” 8. 129

Ibid., 7–8.

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compliance and take other steps to implement human rights.”130 The Institute in particular points

to the lack of a national human rights infrastructure as a reason for this. It is further stressed that

many of the state and local agencies that have been initiated mainly have been mandated to

monitor and enforce anti-discrimination laws.131 Whether the lack of knowledge or resources

plays a factor in Pennsylvania state policies is uncertain. However, as the next chapter will show,

human rights do not appear to have been considered when the decisions on developing and

expanding shale gas extraction in Pennsylvania were made.

130 Ibid., 6.

131 Ibid., 7.

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Part III

Why Should Environmental Pollution from Fracking (also) be addressed as a

Human Rights Issue: Case Study Pennsylvania

The U.S. Shale Gas Revolution

In his 2012 State of the Union address, one of the key issues President Obama emphasized was

American made energy.132 Obama proudly announced that his administration within the last three

years had “opened up millions of acres for oil and gas exploration” (as well as he “tonight”

would be directing his administration “to open more than 75 percent of potential offshore oil and

gas resources”).133 Though the U.S.’ production of oil was the highest in eight years, he noted

that the U.S. only posses two percent of the world’s oil reserves; America therefore needs to

develop every available source of American energy, Obama stressed.134 And a key brick in the

U.S.’ energy strategy, is extraction of natural gas from shale.135

According to Professor Michael T. Klare, the U.S. has once before been a leading oil producer

(until 1950) but due to a decline in oil production and the enhanced environmental regulations

after the 1969 Santa Barbara disaster, U.S. oil companies moved out of the continent to pursue

oil extraction in places with richer oil reserves and weaker environmental regulation.136 However,

because of enhanced protection of environmental regulation abroad, as well as the discovery of

132 The White House, “The State of the Union 2012.”

133 Ibid.

134 Ibid.

135 Department Of State. The Office of Website Management, “Bureau of Energy Resources”; U.S. Department of

Energy, “Increasing Energy Security”; U.S. Department of Energy, “Natural Gas”; U.S. Department of Energy, “Producing Natural Gas from Shale.” 136

Michael T. Klare, “A New Energy Third World in North America? How the Big Energy Companies Plan to Turn the United States into a Third-World Petro-State.”

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new unexploited oil and natural gas reserves in the U.S. and Canadian territories, there has been

a boom in the exploitation of the U.S. shale gas reserves in recent years, in particular by the use

of hydraulic fracturing.137 According to Klare, these reserves are not easy to exploit however,

which means that “the energy companies must deploy aggressive technologies likely to cause

extensive damage to the environment and in many cases human health as well.”138

According to Obama this will not be the case in the U.S. The process of extracting shale gas will,

according to the Obama, be carried out “without putting the health and safety of our citizens at

risk […] we do not need to choose between our environment and our economy”.139 Later in his

speech Obama also underscored that he will “not back down on regulations to contain oil spills”

and made a direct reference to the BP Deepwater Horizon disaster. Yet, as mentioned above,

downgrading offshore oil drilling was/is not part of his plan to contain oil spills. Furthermore,

the President also expressed that he wants to make sure that “our water is clean.”140 However, the

Administration’s concerns do not seem to include changes in the rules and regulations that are

exempting fracking from the federal oversight and regulations implemented in the 1970s, to e.g.

protect people from water contamination and air pollution.

As Albuquerque noted in her report on the U.S., a not-so-protective Act was enacted in 2005

when Congress passed the Energy Policy Act. The Energy Policy Act is also known as the

‘Halliburton Loophole’ because of the influence then Vice President Dick Cheney, the former

137 Ibid.

138 Ibid.

139 The White House, “The State of the Union 2012.”

140 Ibid.

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CEO of oil services contractor Halliburton, had on the implementation of the Act, which, inter

alia, “prohibited the EPA from regulating hydro-fracking via the Safe Drinking Water Act”.141

According to Inside Climate News reporter, Neela Banerjee, Congress has, besides the 2005

Energy Policy Act, in the past 35 years passed laws exempting the oil and gas industry from

many environmental rules, including parts of the Clean Air Act, and the Resource Conservation

and Recovery Act (RCRA) which governs hazardous waste.”142 In January 2015 the Senate voted

against proposed amendments to the Energy Policy Act.143 The Resource Conservation and

Recovery Act, which is covering wastewater, would have included the toxic wastewater fracking

produce but this waste is not being tracked due to the exemption, which both includes when the

waste is on the drilling site and when it is being transported.144 The oil and gas industry has

furthermore been exempt from the Toxic Release Inventory (TRI) reporting, which require

industries to report toxic chemicals to the EPA. This means that citizens not in all situations have

access to full information about the chemicals used in the fracking process in their area.145 These

exemptions could therefore be argued to be in conflict with the human rights concerns stressed

by the Special Rapporteur on toxic substances and wastes—who in particular pointed to the right

to information as a critical to ensure the prevention of other human rights abuses such as the

141 Michael T. Klare, “A New Energy Third World in North America? How the Big Energy Companies Plan to Turn the

United States into a Third-World Petro-State.”; Susan Phillips, “Burning Question”; Neela Banerjee, “Can Fracking Pollute Drinking Water?” 142

Neela Banerjee, “Can Fracking Pollute Drinking Water?” 143

Mike Soraghan, “HYDRAULIC FRACTURING.” 144

Susan Phillips, “Burning Question.” 145

Ibid. A report from January 2015, “Fracking Failures”, by Environment America furthermore emphasizes how companies in many cases in addition to being exempt from many rules and regulations are violating the rules and regulations that have been put in place. This will be discussed further in the next chapter.

44

right to health and the right to life. Furthermore, the Special Rapporteur also emphasized the

importance of information to ensure transparency and access to decision-making.

Obama did not address any of the exemptions or potential human rights abuses in his speech

however. Nor did he address them in his 2015 State of the Union address.146 Although Obama

and the current administration did not introduce this act and exemptions, this lack of federal

oversight of the industry does not seem to be a cause of concern to the current administration

(and the majority of Congress as the vote in the Senate underscored). While announcing that the

U.S. now increasingly is free of foreign oil, the main point Obama stressed in relation to

fracking, is that American families now are saving money due to cheaper gas.147 And as Obama

promised in his 2012 State of the Union address, government sources (continue to) claim that

fracking is clean and safe, and that there has been “no confirmed cases linking hydraulic

fracturing to drinking water well contamination.”148

Obama also noted in his 2012 address, that natural gas extraction is considered part of the U.S.’

clean energy future.149 As stressed by Obama in almost all of his speeches (if not all), in

particular in 2015 state of the union address, in his presentation of the Clean Power Plan, and in

his statement after the world leaders reached an agreement on climate change in Paris in

146 The White House, “President Obama’s 2015 State of the Union Address.”

147 Ibid.

148 Office of Fossil Fuel Energy, “Shale Gas 101,” 101; US EPA, “EPA’s Study of Hydraulic Fracturing for Oil and Gas

and Its Potential Impact on Drinking Water Resources”; US EPA, “Executive Summary, Hydraulic Fracturing Study - Draft Assessment 2015.” 149

US EPA, “Natural Gas Extraction - Hydraulic Fracturing.”

45

December, addressing and acting on climate change is a top priority to the U.S. government.150

However, though the Obama Administration argues that the concern for public health is an

underlying cause to its climate change-friendly policy discourse and that safe and responsible

fracking of natural gas is part of the government’s clean energy strategy,151 not all Americans

share the administration’s positive description of fracking and the claims that fracking it is not

linked to contamination of drinking water. This will now be further discussed through a case

study of fracking in one of the U.S. leading shale gas extracting states, Pennsylvania.

Status (quo) of Fracking in Pennsylvania

Fracking in Pennsylvania is possible due to its placement on top of the Marcellus Shale152 and

though drilling is not new in Pennsylvania, the recent technological advancements have spurred a

heavy increase in the new form of fracking since 2007.153 According to StateImpact

Pennsylvania-reporter, Susan Phillips, the Marcellus Shale can potentially “alter the landscape of

the global energy market” leading to an extensive pipeline building boom, which will add an

150 The White House, “President Obama’s 2015 State of the Union Address”; The White House, “CLIMATE CHANGE

AND PRESIDENT OBAMA’S ACTION PLAN.” 151

Sabrina Siddiqui, “Obama Emphasises Threat to Public Health as Part of Climate Change Push”; U.S. Department of Energy, “Natural Gas”; The White House, “Energy, Climate Change, and Our Environment.” 152

Penn State, “Explore Shale. Marcellus Shale Development, Geology and Water”; StateImpact Pennsylvania, “The Marcellus Shale, Explained”; Delawere River Basin Commission, “Natural Gas Drilling Index Page”; StateImpact Pennsylvania, “Shale Play”; Pennsylvania Department of Environmental Protection, “Marcellus Shale”; Pennsylvania Department of State, “Drilling for Natural Gas in the Marcellus Shale Formation Frequently Asked Questions.” 153

Adam Garber and David Masur, PennEnvironment Research & Policy Center and Elizabeth Ridlington, Tony Dutzik and Tom Van Heeke, Frontier Group, “Dangerous and Close”; Elizabeth Ridlington, Frontier Group and John Rumpler, Environment America Research & Policy Center, “Fracking by the Numbers: Key Impacts of Dirty Drilling at the State and National Level”; PennEnvironment, “Keep Pennsylvania Safe From Drilling.”

46

estimated 4,600 miles of new interstate pipelines to the existing 6,8000 miles of pipelines.154

After the U.S. Department of Energy (DOE) has given green light to export liquefied natural gas

(LNG), gas from the Marcellus Shale is now projected to be exported from newly established

export terminals on the East Coast.155

This is a positive step for Pennsylvania, according to the State Government which, in

continuation of previous Governors, is planning to use Pennsylvania’s shale gas resources to

make the state an energy leader.156 The Pennsylvania Department of Environmental Protection

(DEP) is also involved in this development. As the DEP stresses, the Secretary of the DEP, John

Quigley, is leading “a strategic approach to growing natural gas development in Pennsylvania”

(emphasis added).157 And according to its own website, the DEP will be working with all

stakeholders in relation to the pipeline infrastructure construction, and environmental, public

health and local concerns will be addressed.158 The DEP further stresses that the shale gas

revolution will show that “economic development and protection of the environment are

essential and, in fact, complementary.”159 To assure the Pennsylvanians that this will actually be

the case, Quigley’s extensive experience with “expanding opportunities for industries while

protecting public health and the environment” is highlighted. (It is not mentioned though,

whether this is only in relation to the actual construction of the pipelines and not fracking in

Pennsylvania in general, or how.) Furthermore, in spite of noting that environmental and public

154 Susan Phillips, “Pipelines.”

155 StateImpact Pennsylvania, “LNG Exports.”

156 Pennsylvania Department of Environmental Protection, “Office of the Secretary.”

157 Ibid.

158 Ibid.

159 Ibid.

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health concerns will be addressed, there is no specific reference to human rights. However, as the

next section will demonstrate, the concerns raised by residents, local organizations, health

professionals and scientists, indicate that there are several human rights risks related to fracking.

Human Rights Impacts

For some citizens of Pennsylvania the beginning of the state’s shale gas revolution have

demonstrated that fracking can have negative impacts on the health and livelihood for those

living near fracking sites. As illustrated in John Fox’ Oscar-nominated documentary Gasland160

residents of several towns in Pennsylvania are claiming to have experienced unexpected and

unexplainable health symptoms after companies started drilling near their homes.161

Despite the

federal and state governments’ rhetoric that fracking is safe residents’ concerns of environmental

pollution and negative health effects are supported and raised by a number of local

organizations.162

One of these, Damascus Citizens for Sustainability, also specifically

emphasizes that clean water, air and land are basic human rights, all of which fracking is

impacting in Pennsylvania.163

The risks and negative effects of fracking on public health is

furthermore being attended and voiced by the Southwest Pennsylvania Environmental Health

160 Gasland, “Gasland.”

161 PennEnvironment, “Keep Pennsylvania Safe From Drilling”; PennEnvironment, “Marcellus Shale Stories”; Adam

Garber and David Masur, PennEnvironment Research & Policy Center and Elizabeth Ridlington, Tony Dutzik and Tom Van Heeke, Frontier Group, “Dangerous and Close”; Jeff Inglis and John Rumpler, “Fracking Failures.” 162

PennEnvironment, “Keep Pennsylvania Safe From Drilling”; Clean Air Council, “About Us”; Delawere Riverkeeper Network, “About Us”; Damascus Citizens for Sustainability, “About Us”; Damascus Citizens for Sustainability, “DCS Programs.” 163

Damascus Citizens for Sustainability, “DCS Programs”; Damascus Citizens for Sustainability, “Gas Drilling Can Spoil Your Water”; Damascus Citizens for Sustainability, “Health Archives - Damascus Citizens for Sustainability.”

48

Project (EHP), who is assisting local residents in Washington County with public health

information and health services in relation to extraction of natural gas.164

A recent report from PennEnvironment and Frontier Group on fracking in Pennsylvania,

Dangerous and Close: Fracking Near Pennsylvania’s Most Vulnerable Residents, presents up-

to-date numbers on fracking developments in Pennsylvania and the subsequent effects on

Pennsylvanian residents.165

As well as it, as its main focus, underscores that fracking in

particular affects vulnerable populations like children, elderly and sick residing near fracking

sites, who due to physical conditions are more at risk (while fracking operations increasingly are

being placed near schools, day care centers and hospitals).166

This is one issue which conflicts

with the Special Rapporteur on the Environment’s emphasis on governments’ additional duties in

relation to vulnerable groups. The report, along with several other reports, stresses that fracking

endangers the health and safety of workers and residents in Pennsylvania because fracking can:

Cause fires, explosions and blowouts, which have caused at least one worker’s life,

evacuations, gas fires, chemicals spills, and the release of hundreds of thousands of gallons

of wastewater.

Pollute local water supplies with toxic chemicals, or radioactive contaminants. Both

groundwater and surface water like rivers, lakes and streams are at risk. This can affect

water drinking supplies and water for households and agriculture.

164 The Southwest Pennsylvania Environmental Health Project, “About.”

165 Adam Garber and David Masur, PennEnvironment Research & Policy Center and Elizabeth Ridlington, Tony

Dutzik and Tom Van Heeke, Frontier Group, “Dangerous and Close,” 6, 13–17. 166

Ibid., 19. The report notes that children are more likely to be impacted by the effects of fracking because they are still developing, whereas the elderly and sick are more vulnerable because they have fewer defenses against pollution.

49

Create air pollution through emissions from diesel trucks and engines, evaporation from

wastewater storage ponds and flaring of harmful gases.167

This can all lead to safety risk for workers and residents close to fracking sites, as well as health

risks from air pollution and air contaminations more widespread. For example is the Delaware

River Basin, which is at risk from fracking in the Marcellus Shale, a water-source for 15.6

million people from Pennsylvania to New York City and Delaware.168

And contamination of

drinking water has already been documented in 243 cases between December 2007 and August

2014.169

This can happen through spills from blowouts which releases fracking chemicals and

flowback into the groundwater and surface water; failure of waste pits containing toxic fracking

wastewater; methane and leaks of other substances into the groundwater due to faulty well

construction; as well as one study also is pointing to long-term groundwater contamination

threats.170

The Dangerous and Close report notes that the DEP in Pennsylvania have documented

the use of 85 chemicals in fracking activities. And though chemicals only make up a small

percentage of the fluid, the amount of chemicals is not small if millions of gallons of fluids are

injected into a well, as the report points out.171

Several problems are of concern in regards to the

chemicals; inter alia, have doctors and health scientists associated many of the chemicals with

167 Ibid., 20–26. See also: Jeff Inglis and John Rumpler, “Fracking Failures”; Environment America Research and

Policy Center, “The Costs of Fracking”; Elizabeth Ridlington, Frontier Group and John Rumpler, Environment America Research & Policy Center, “Fracking by the Numbers: Key Impacts of Dirty Drilling at the State and National Level.” 168

Damascus Citizens for Sustainability, “DCS Programs”; Damascus Citizens for Sustainability, “Gas Drilling Can Spoil Your Water.” 169

Adam Garber and David Masur, PennEnvironment Research & Policy Center and Elizabeth Ridlington, Tony Dutzik and Tom Van Heeke, Frontier Group, “Dangerous and Close,” 22. 170

Ibid. 171

Ibid.

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acute illnesses as well as long-term diseases such as cancer, asthma and liver, kidney and central

nerves problems.172

Residents have also for a long time reported symptoms including headaches,

eye irritation, respiratory problems and nausea.173

This is reinforced by an increasing amount of scientific studies that support the reported health

concerns. In October 2015, Concerned Health Professionals of New York and Physicians for

Social Responsibility published a third edition of the Compendium of Scientific, Medical, and

Media Findings Demonstrating Risks and Harms of Fracking (the Compendium).174

The

growing scientific literature (more than 100 new studies have appeared in peer-reviewed

literature since the Compendium’s second edition in 2014) demonstrate, according to the

Compendium, that fracking is “dangerous to people and their communities in ways that are

difficult – and may prove impossible – to mitigate.”175

In the meantime more than two billion

gallons of toxic fluid is, on a national level, injected daily to enable oil and gas extraction in

relation to fracking operations, passing through groundwater aquifers, as well as the air above

drilling and fracking operations and infrastructure have measured high levels of toxic pollutants.

These pollutants include benzene—a known carcinogen—and the chemical precursor of smog.176

172 Ibid., 22–23.

173 Ibid., 27.

174 Concerned Health Professionals of NY, “Groups Send Letters about Health Impacts and Calling for Moratorium”;

Physicians for Social Responsibility and Concerned Health Professionals of New York, “COMPENDIUM OF SCIENTIFIC, MEDICAL, AND MEDIA FINDINGS DEMONSTRATING RISKS AND HARMS OF FRACKING (UNCONVENTIONAL GAS AND OIL EXTRACTION).” 175

Physicians for Social Responsibility and Concerned Health Professionals of New York, “COMPENDIUM OF SCIENTIFIC, MEDICAL, AND MEDIA FINDINGS DEMONSTRATING RISKS AND HARMS OF FRACKING (UNCONVENTIONAL GAS AND OIL EXTRACTION),” 2 and 4. 176

Ibid., 4.

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In Pennsylvania, studies have found that fracking can present periods of extreme exposure to

volatile chemicals, in particular at night177, and that drilling and fracking operations in a heavily

drilled area in Southwestern Pennsylvania may affect compliance with ozone standards.178 A

study collecting air samples from five states, including Pennsylvania, found eight highly toxic

chemicals in the samples, which included two proven human carcinogen (benzene and

formaldehyde) and two potent neurotoxicants (hexane and hydrogen sulfide). Concentrations in

several of the samples far exceeded federal health and safety standards, according to the study.179

In relation to water contamination, the Compendium stresses that “more than 240 private

drinking water wells have been contaminated or have dried up as the result of drilling and

fracking operations” in Pennsylvania alone, over a seven year period.180 In addition, well

177 The Compendium: 16

178 Physicians for Social Responsibility and Concerned Health Professionals of New York, “COMPENDIUM OF

SCIENTIFIC, MEDICAL, AND MEDIA FINDINGS DEMONSTRATING RISKS AND HARMS OF FRACKING (UNCONVENTIONAL GAS AND OIL EXTRACTION),” 17. For full study see: Swarthout et al., “Impact of Marcellus Shale Natural Gas Development in Southwest Pennsylvania on Volatile Organic Compound Emissions and Regional Air Quality.” 179 Physicians for Social Responsibility and Concerned Health Professionals of New York, “COMPENDIUM OF

SCIENTIFIC, MEDICAL, AND MEDIA FINDINGS DEMONSTRATING RISKS AND HARMS OF FRACKING (UNCONVENTIONAL GAS AND OIL EXTRACTION),” 18. For full article see: Alan Neuhauser, “Toxic Chemicals, Carcinogens Skyrocket Near Fracking Sites.” Furthermore, a study points to the downwind air pollution into states with no fracking, which stresses the interstate dimension of the issue. A study by researchers from the Southwest Environmental Health Project from 2014, and a study from the University of Texas from 2014, have also stressed that current methods of collecting and analyzing data on emissions are not accurately assessing health risks. See: Physicians for Social Responsibility and Concerned Health Professionals of New York, “COMPENDIUM OF SCIENTIFIC, MEDICAL, AND MEDIA FINDINGS DEMONSTRATING RISKS AND HARMS OF FRACKING (UNCONVENTIONAL GAS AND OIL EXTRACTION),” 16. See also: Valentine, “Fracking Wells Could Pollute The Air Hundreds Of Miles Away”; Vinciguerra et al., “Regional Air Quality Impacts of Hydraulic Fracturing and Shale Natural Gas Activity.” And: Physicians for Social Responsibility and Concerned Health Professionals of New York, “COMPENDIUM OF SCIENTIFIC, MEDICAL, AND MEDIA FINDINGS DEMONSTRATING RISKS AND HARMS OF FRACKING (UNCONVENTIONAL GAS AND OIL EXTRACTION),” 21 180

Physicians for Social Responsibility and Concerned Health Professionals of New York, “COMPENDIUM OF SCIENTIFIC, MEDICAL, AND MEDIA FINDINGS DEMONSTRATING RISKS AND HARMS OF FRACKING

52

blowouts, spills, and surface water and waste pits water contamination incidents have steadily

grown.181 In May 2015, the presence of a commonly used fracking chemical (2-n-Butoxyethanol)

was documented in the drinking water from three homes in Bradford County, Pennsylvania, in a

study by a Pennsylvania State University research team. For the first time, a commonly used

chemical have now been fully documented, according to the Compendium.182 Several other

studies are referenced in the Compendium specifically pointing to cases of: volatile organic

compounds and microorganisms in water samples from fracked wells; methane in streams and

private water wells; changes in water chemistry in private water drinking wells; cases of

exploding drinking water wells; a leaking pipe; a gas well blowout resulting in thousands of

gallons of chemical-laced water spewed on farmland and into a stream for two days; and

chemicals in wastewater discharged into rivers and streams—including an incident where

sewage plant treatment workers in Greene County, Pennsylvania, dumped four thousand gallons

of liquid fracking waste into a creek that is connected to the Monongahela River, which serves as

a source of drinking water for more than 800,000 people.183 On a general level, a study from

2011 led by renowned and award winning scientist and expert on environmental health issues

related to fracking, (the late) Dr. Theo Colborn, stresses that:

(UNCONVENTIONAL GAS AND OIL EXTRACTION),” 26; Laura Legere, “DEP Releases Updated Details on Water Contamination near Drilling Sites.” 181

Physicians for Social Responsibility and Concerned Health Professionals of New York, “COMPENDIUM OF SCIENTIFIC, MEDICAL, AND MEDIA FINDINGS DEMONSTRATING RISKS AND HARMS OF FRACKING (UNCONVENTIONAL GAS AND OIL EXTRACTION),” 27. 182

Ibid., 30; Fleur, “Fracking Chemicals Detected in Pennsylvania Drinking Water”; Llewellyn et al., “Evaluating a Groundwater Supply Contamination Incident Attributed to Marcellus Shale Gas Development.” 183

Physicians for Social Responsibility and Concerned Health Professionals of New York, “COMPENDIUM OF SCIENTIFIC, MEDICAL, AND MEDIA FINDINGS DEMONSTRATING RISKS AND HARMS OF FRACKING (UNCONVENTIONAL GAS AND OIL EXTRACTION),” 31–37 and 51–52; Press, “Crews Stop Flow of Drilling Fluid from Pennsylvania Well”; Don Hopey, “Waynesburg Officials Investigate Dumping of Fracking Wastewater.”

53

25 percent of chemicals known to be used in fracking fluids are implicated in cancer, 37 percent

could disrupt the endocrine system, and 40 to 50 percent could cause nervous, immune and

cardiovascular system problems… [and] more than 75 percent could affect the skin eyes, and

respiratory system.184

One of the health issues Colborn, who was the president of Endocrine Disruption Exchange,

points to, is the impact on pregnant women and the future wellbeing of their unborn babies.185 A

recent study, from October 2015, conducted by John Hopkins Bloomberg School of Public

Health, further suggest that pregnant women in Pennsylvania, who live near active natural gas

wells operated by the fracking industry, are in a higher risk of giving birth prematurely and for

having high-risk pregnancies.186 The leader of the study moreover stresses that the fracking

industry has been allowed to rapidly increase the amount of wells drilled while “almost nothing

about what it can do to our health” is known.187 Despite this knowledge gap about potential risks

and consequences on the health and safety of people in Pennsylvania, fracking has rapidly

increased in the state, with more than 19,300 permits for fracking sites issued between May 2007

184 Physicians for Social Responsibility and Concerned Health Professionals of New York, “COMPENDIUM OF

SCIENTIFIC, MEDICAL, AND MEDIA FINDINGS DEMONSTRATING RISKS AND HARMS OF FRACKING (UNCONVENTIONAL GAS AND OIL EXTRACTION),” 49; Democracy Now!, “World-Renowned Scientist Dr. Theo Colborn on the Health Effects of Water Contamination from Fracking”; Colborn et al., “Natural Gas Operations from a Public Health Perspective.” 185

Democracy Now!, “World-Renowned Scientist Dr. Theo Colborn on the Health Effects of Water Contamination from Fracking.” 186

Johns Hopkins Bloomberg School of Public Health, “Study.” 187

Ibid. On a national level, concerns have also been raised about this issue by the American Medical Association, who in resolution from 2015 underscores support of legislation on health impact assessments, including full chemical disclosure. See: Physicians for Social Responsibility and Concerned Health Professionals of New York, “COMPENDIUM OF SCIENTIFIC, MEDICAL, AND MEDIA FINDINGS DEMONSTRATING RISKS AND HARMS OF FRACKING (UNCONVENTIONAL GAS AND OIL EXTRACTION),” 11, 71–80; Jared Kaltwasser, “Doctors Call for More Data on Fracking, Pipelines.”

54

and May 2015, as well as up to 60,000 wells are projected by 2030.188 In the light of this another

statistic becomes even more critical; it is also noted that the Pennsylvania Department of

Environmental Protection (DEP) between 2001 and March 2015 had recorded close to 5,200

violations of existing regulations.189 As is has been stressed in previous chapters, states’ human

rights obligations include the duty to protect against third parties like corporations. This means

that states are obligated to take preventive measures in form of policies and legislation, as well as

they need to ensure enforcement and accountability for abuses caused by corporations. The next

section will therefore discuss to what extent these obligations are upheld in Pennsylvania.

Regulatory Failures

Fossil fuel extraction in Pennsylvania actually dates all the way back to the mid-1800 when oil

was discovered by Samuel Kier, which became the beginning of the American oil industry.190 In

addition to oil Pennsylvania became the home of major steel, railroad and coal production,

bringing economic wealth to the state. At that time no environmental regulation existed, apart

from a few laws implemented in response to disasters, like the first clear stream law of 1905. But

already back then was the fossil fuel industry, in form of coal companies, exempted from this

law, as well as they were “exempted or given favorable treatment” under the three clean stream

laws that were later enacted (1923, 1937 and 1945). Not until 1965 did the laws apply to the coal

188 Adam Garber and David Masur, PennEnvironment Research & Policy Center and Elizabeth Ridlington, Tony

Dutzik and Tom Van Heeke, Frontier Group, “Dangerous and Close,” 6. 189

Ibid., 5, 17–18. 190

Strauss, “Oil Makes a Comeback in Pennsylvania.”

55

companies as well.191 However, in line with the national outrage and response to the Santa

Barbara oil spill, and the increased awareness of environmental destruction brought upon

Pennsylvania in the name of economic prosperity, Pennsylvania’s legislature took a stand against

the “unregulated and under-regulated use of natural resources” and enacted strong environmental

laws. This led to a 1971 amendment of the state constitution (Article 1, Section 27) which states:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic,

historic and esthetic values of the environment. Pennsylvania's public natural resources are the

common property of all the people, including generations yet to come. As trustee of these

resources, the Commonwealth shall conserve and maintain them for the benefit of all the

people.192

According to one of the drafters and introducers of the amendment, Franklin L. Kury, the

amendment established the government “would be a trustee of our natural resources for future

generations, rather than a silent accomplice to their exploitation.”193 However, the fast

development of high volume fracking of shale gas has put the question of whether or not the

rights granted in this amendment are being upheld in to new light. As demonstrated in the

previous section of this chapter there is cause for concern regarding the safety and health risks of

fracking, in particular in relation to fracking’s impacts on the rights to water, health and life. In

spite of these risks, lack of monitoring and enforcement of violations committed by the oil and

gas industry is another critical issue in relation to fracking in Pennsylvania (as well as in general

in the U.S.). This is, inter alia, highlighted in a report by Earthworks from 2012, Breaking All

191 Franklin L. Kury, “Pennsylvania’s Environmental Rights Amendment.”

192 COMMONWEALTH OF PENNSYLVANIA, “CONSTITUTION OF THE COMMONWEALTH OF PENNSYLVANIA.”

193 Franklin L. Kury, “Pennsylvania’s Environmental Rights Amendment.”

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the Rules: the Crisis in Oil and Gas Regulatory Enforcement, and in a report from

EnvironmentAmerica and Frontier Group from 2015, Fracking Failures: Oil and Gas Industry

Environmental Violations in Pennsylvania and What They Mean for the U.S.194 According to

Earthworks “the U.S. faces a crisis in the enforcement of rules governing the oil and gas

industry.”195 Already in the report from 2012 is it stressed by Earthworks that states were not

prepared to oversee the levels of extraction of that time, as well as the organization also noted

that states would not be prepared for the increased activities following the shale boom.196 The

organization in particular points to: lack of inspections of a high percentage of operating wells;

that violations not always are formally recorded; that there are few penalties for violations that

actually get recorded; and that the penalties imposed have little effect on future behavior of

companies.197 As example, the report notes that inspectors in Pennsylvania in 2010 failed to

inspect more than 82,000 active wells—around 90 percent of active wells. Earthworks further

stresses that for all active wells to be inspected at that rate, it would take ten and a half years.198

Nonetheless, the oil and gas industry is, according to Earthworks, receiving permits without prior

consideration for the potential environmental and public health risks their business might lead to:

194 Lisa Sumi and Earthwork’s Oil and Gas Accountability Project, “Breaking All the Rules: THE CRISIS IN OIL & GAS

REGULATORY NFORCEMENT STATES ARE BETRAYING THE PUBLIC BY FAILING TO ENFORCE OIL AND GAS DEVELOPMENT RULES”; Jeff Inglis and John Rumpler, “Fracking Failures.” 195

Lisa Sumi and Earthwork’s Oil and Gas Accountability Project, “Breaking All the Rules: THE CRISIS IN OIL & GAS REGULATORY NFORCEMENT STATES ARE BETRAYING THE PUBLIC BY FAILING TO ENFORCE OIL AND GAS DEVELOPMENT RULES,” 8. 196

Lisa Sumi and Earthwork’s Oil and Gas Accountability Project, “Breaking All the Rules: THE CRISIS IN OIL & GAS REGULATORY NFORCEMENT STATES ARE BETRAYING THE PUBLIC BY FAILING TO ENFORCE OIL AND GAS DEVELOPMENT RULES.” 197

Ibid., 8. 198

Ibid., 9, 26 and 29.

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It is […] common for state agencies to respond to booms in oil and gas development by

expediting permitting processes.199

For example, in Pennsylvania the total review time for a drilling permit can be as short as 35

minutes.200

This raises serious concerns regarding the ability to determine the proximity to water sources and

other potential risks for nearby residents.201 In some cases in Pennsylvania these permits have

been revoked by the DEP because residents and organizations have stressed negative

consequences that would follow the initiation of gas drilling. However, as Earthworks further

stresses, citizens are not able to review all permits.202 And they should not have to. It is the

state’s duty to protect against human rights abuses in relation to the industry’s activities. Even

though resource constraints rather than lack of political will could be a reason for the short

review time, from a human rights perspective it could then be argued that the permits should be

withhold until a human rights impact assessment has been performed.

Moreover, even though some rules are in place, not all incidents and problems are prevented or

discovered, even when inspections happen, due to lack of sufficient equipment to e.g. detect

leaks of air emissions that can affect safety and public health.203 Earthworks notes that some state

environmental agencies do visit oil and gas sites in cases of complaints. But for instance in

Pennsylvania, the air quality bureau of DEP is not performing routine inspections.204 And

199 Ibid., 87.

200 Ibid., 16.

201 Ibid., 87.

202 Ibid., 88.

203 Ibid., 9.

204 Ibid., 30.

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according to the Fracking Failures report, even basic environmental and public health protection

safeguards are violated on a daily basis in Pennsylvania, by big multinational companies as well

as small local companies:205

This betrayal of the public interest […] severely weakens state claims that they can protect the

public from the impacts of the shale boom. A rule – even an improved rule – on the books

means little if an oil or gas company knows that it can be ignored with little or no

consequence.206

Earthworks’ report also stresses that fines and penalties for violations do not necessarily have

any effect, rather they are just viewed as part of “the cost of doing business by companies.”207

It

is also noted that there is a consistent pattern of conducting fewer inspections than state law

requires, because if a company voluntarily agree to fix a problem, no inspection will take

place.208 This also leaves a gap in terms of monitoring and accountability, as it could then be up

to the affected residents and workers to prove the cause of health effects, as well as there might

not be any follow up on whether or not the companies actually fix the problems.

As the most recent update, as of January 2016, the DEP is finally concluding updates to new oil

and gas regulations—a process it started in 2011—which according to StateImpact reporter

Marie Cusick “include more stringent rules around permitting, waste handling, water restoration,

205 Jeff Inglis and John Rumpler, “Fracking Failures,” 4 and 15.

206 Lisa Sumi and Earthwork’s Oil and Gas Accountability Project, “Breaking All the Rules: THE CRISIS IN OIL & GAS

REGULATORY NFORCEMENT STATES ARE BETRAYING THE PUBLIC BY FAILING TO ENFORCE OIL AND GAS DEVELOPMENT RULES,” 17. 207

Ibid., 55. 208

Ibid., 5.

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and identifying old wells.”209 The regulations have to go to the DEP’s Environmental Quality

Board before, if approved, moving to Pennsylvania’s Independent Regulatory Review

Commission. According to Cusick, the DEP expects them to be taken into effect by the summer

(2016).210 The Oil and Gas Law 2012 amendment referred to in the regulatory updates, Act 13, is

a key issue when discussing the protection of rights in Pennsylvania in relation to environmental

pollution from fracking. The bill, which was passed on 8 February 2012 by state legislators, is

according to StateImpact Pennsylvania “a major overhaul of Pennsylvania’s oil and gas law”

which became the center of a legal battle over the right to decide how to zone oil and

development in Pennsylvania.211 In December 2013 a section was overruled by the Supreme

Court in a “historic”, “surprising and controversial” decision that stated that part of Act 13—

which restricted “local governments’ ability to zone and regulate natural gas drilling”—was

unconstitutional.212 Though no reference was made to international human rights in the decision,

a direct reference was made to the Environmental Rights Amendment in the state constitution,

and to the lessons learned from the state’s history with coal and timber.213 As this is the first time

the Environmental Rights Amendment has proved to have any real effect on a court decision on

this matter, it will be interesting to see whether or not it will have an effect on future rulings, and

209 Marie Cusick, “DEP Finalizes New Oil and Gas Drilling Regulations.”

210 Ibid. See also: Pennsylvania Department of Environmental Protection, “Final Regulations for Oil and Gas Surface

Activities (Amendments to 25 Pa. Code Chapter 78, Subchapter C).” 211

StateImpact Pennsylvania, “The Oil and Gas Law of the Land”; Pennsylvania General Assembly, “2012 Act 13.” 212

StateImpact Pennsylvania, “The Oil and Gas Law of the Land”; Susan Phillips, “Pennsylvania Supreme Court to Hear More Arguments on Act 13”; Marie Cusick, “Pennsylvania Supreme Court Strikes down Controversial Portions of Act 13.” 213

StateImpact Pennsylvania, “The Oil and Gas Law of the Land.”

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whether it for instance will and can be used as an avenue for the use of human rights in future

decision-making processes.

Some provisions were sent back to the Commonwealth Court, which “threw out most of the

remaining challenges to the law” but not the part that gives local governments authority. In an

article from October 2015, StateImpact notes that some of the provisions that were sent back to

the Commonwealth Court will be revised by the Supreme Court.214 These provisions include

“eminent domain for gas storage facilities, and the exclusion from notification of hazardous

spills for owners and residents relying on private water sources”, and what has become known as

the “doctor gag rule.”215 Doctors have protested over this latter part of Act 13 because though it:

requires gas drilling companies to provide health professionals with health and safety

information on chemical exposures experienced by individual patients [… ] the law also

says those companies may require healthcare workers to sign a nondisclosure agreement.216

According to the office of the previous Governor, Tom Corbett, this was intended to help

doctors, but according to doctors, it would “jeopardize public health.”217 There have even been

claims from retired Pennsylvania health department employees stating that “they were instructed

not to return phone calls from citizens who claim they may be experiencing sickness from

fracking and other natural gas development.”218 So not only do exposure to the chemicals present

health risks, but those affected, and the public in general, are presented with little information

214 Susan Phillips, “Pennsylvania Supreme Court to Hear More Arguments on Act 13.”

215 Ibid.

216 Susan Phillips, “Doctor Sues Over Act 13 ‘Gag Rule.’”

217 Ibid.

218 Atkin, “Doctors Outraged By Claims That Health Officials Ignored Residents Sickened By Drilling.”

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and have difficulties accessing information. This conflict with the Special Rapporteur’s

explanation of right to information, in which he, inter alia, stressed that health and safety

information should not be confidential. Furthermore, it is not only international human rights that

are absent from these decisions. With reference to the tragic Chemical Plant disaster in Bhopal

and a chemical release in West Virginia in 1985, the U.S. Congress decided in 1986 to pass the

the Emergency Planning and Community Right-to-Know Act (EPCRA), with the purpose of

supporting emergency planning and providing the public with information in cases where

communities become exposed to toxic chemical releases.219 Part of that is section 313, the Toxic

Release Inventory (TRI) which according to the EPA “was part of a new approach to

environmental protection”220 to serve as as “a publicly available database that contains

information on toxic chemical releases and waste management activities“.221 However, as noted

in the first part of this chapter, the oil and gas industry is not listed as an industry that needs to

report under the Toxic Release Inventory, according to the online database FracFocus.222 Despite

the EPA’s own statement that the TRI “in general” covers those chemicals causing: cancer or

other chronic human health effects; significant adverse acute human health effects and;

significant adverse environmental effects.223 FracFocus has instead been established as an

‘objective’ national chemical registry in relation to fracking “to provide the public access to

reported chemicals used for hydraulic fracturing within their area” (emphasis added), and is

219 US EPA, “Learn about the Toxics Release Inventory.”

220 Ibid.

221 FracFocus, “Chemicals & Public Disclosure.”

222 FracFocus, “Chemicals & Public Disclosure”. See also: US EPA, “Learn about the Toxics Release Inventory”; US

EPA, “Is My Facility’s Six-Digit NAICS Code a TRI-Covered Industry?” 223

US EPA, “Learn about the Toxics Release Inventory.”

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managed by the Ground Water Protection Council and Interstate Oil and Gas Compact

Commission.224 According to FracFocus one of the arguments defending the decision of

excluding the oil and gas industry from federal disclosure reporting, is that this reporting already

is being submitted to state agencies, who is then making it public available.225

Pennsylvania is listed as one of the states which has or currently is developing public disclosure

rules regarding chemicals used in fracking operations226, but when clicking on the link to view

Pennsylvania’s regulations227 a site requiring a login (possible to obtain for citizens and

employees of the Commonwealth) appears. Pennsylvania’s DEP has a website where citizens’

right-to-know law requests can be filled, but for instance took it the organization Food & Water

Watch, according to EcoWatch reporter Wenonah Hauter, almost a year to receive documents

from Pennsylvania’s Department of Health (DOH) in response to a right-to-know law request. It

was not until an injunction threat was made by the Office of Open Records that the documents

were handed over.228 The request regarded the DOH’s response to residents’ and workers’ health

concerns, and revealed according to Food & Water Watch “gross irresponsibility in [the DOH’s]

failure to respond to the […] serious health concerns of the people it is charged to protect”.229

The National Resources Defense Council (NRDC) also underscores that not all relevant

information on the chemicals used in fracking operations is available to the public, either

224 FracFocus, “About Us.”

225 FracFocus, “Chemicals & Public Disclosure.”

226 Ibid.

227 FracFocus, “Regulations by State.”

228 Wenonah Hauter, “Shocking Documents Reveal Fracking Health Complaints Swept Under the Rug in

Pennsylvania.” 229

Ibid.

63

because it is not collected or not listed in the DEP’s free public available database. The NRDC

further emphasizes that the information made available by FracFocus is limited.230 And though

Pennsylvania’s Department of Health addresses the issue of environmental health, and notes on

their website that concerns regarding health risk related to natural gas extraction have been raised

by residents, it appears that the DOH only provides advice to residents and their individual health

care providers.231 It is noted that the DOH—in form of the DOH’s Bureau of Epidemiology—is

willing to discuss health issues and review and investigate complaints, but the residents are to

provide the tests results on e.g. water and soil samples themselves. There is no information to

find on the website on any ongoing or planned state-led monitoring of health effects from

fracking.232 This further raises the question as to whether the state is fulfilling its duty to protect.

As the Special Rapporteur on the environment has emphasized, a state’s procedural rights

include making assessments on environmental impacts on human rights. Though the U.S. has not

ratified the ICESCR, which protects the rights to water and health, violations of these rights

could impact the right to life, which is protected under the ICCPR. The reports and scientific

studies indicate that the right to life might be impacted due to the potential health impacts—

impact assessments and monitoring is therefore essential. In contrast to Pennsylvania, other U.S.

states have taken the potential health risks very seriously, including its neighbor state New York,

even though New York also is placed on top of the Marcellus shale. Based on cases where bans

230 Natural Resouces Defense Council, “Protect Your Family and Community from Dangerous Fracking!”; Natural

Resouces Defense Council, “State Hydraulic Fracturing Disclosure Rules and Enforcement: A Comparison.” 231

Pennsylvania Department of Health, “Environmental Health.” 232

Ibid.; Pennsylvania Department of Health, “BUREAU OF EPIDEMIOLOGY.” And when clicking on the Bureau of Epidemiology’s link “Environmental Health and Epidemiology” an error page appears. Although no information is to be found it cannot be excluded that some monitoring or investigations are taking place.

64

on fracking have been put in place, the next chapter will now discuss whether regulation is

sufficient to protect human rights.

65

Part IV

Should Fracking be Regulated or Banned

Fracking Bans based on Public Health Risks

In June 2015 New York became the first U.S. state with significant shale gas reserves to

officially put a state-wide ban on the exploration of fracking.233 The ban had been approved by

Governor Andrew Cuomo in December 2014, who then passed on the final say on whether or not

to uphold a seven year long moratorium with a final ban, to New York’s Department of

Environmental Conservation.234 New York followed Vermont, who in 2012 had become the very

first U.S. State to ban fracking though Vermont does not contain any significant shale gas

reserves.235 In June 2015, the State of Maryland also joined in and put a 2½ year moratorium on

fracking in Maryland.236

Critics of the bans argue that the respective state legislators are putting a stop to job creation and

economic growth for individuals and communities within their states, and dispute the safety risks

related to fracking. One argument used is that fracking has been performed for many decades, as

well as critics reference EPA’s statement that there is no systemic harm to drinking water

supplies.237 Another argument is that a ban on fracking will lead to an increase in the use of

233 Cama, “New York makes fracking ban official.”

234 Ibid.; Timothy Cama, “NY to Ban Fracking.”

235 Huffington Post Green, “VT Becomes First State To Ban Fracking.”

236 Cama, “Maryland bans fracking.”

237 James Conca, “New York Fracking Ban Contrary To State’s Energy Future”; Jude Clemente, “Why New York’s

Fracking Ban For Natural Gas Is Unsustainable.”

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“dirty” fossil fuels like coal and (conventional) oil.238 The decision in December 2014 by

Governor Cuomo was even critiqued by the Interior Secretary, Sally Jewell, in January 2015,

who stated that local and state fracking bans will “create confusion for the oil and gas

industries.”239 According to the Hill, Secretary Jewell further stated that “fracking bans often

come as a result of […] bad scientific decisions that incorrectly find safety or health problems

associated with fracking.”240 Jewell claims localized and statewide efforts do not understand the

science, as well as she believes there needs to be more science.241 That part was also stressed by

Joseph Martens, Commissioner of the New York Department of Environmental Conservation,

and Howard A. Zucker, acting Commissioner of Health, in their decisions on the New York

ban.242 However, instead of continuing on with fracking while waiting on the science to prove

that there definitely is not any health or safety concerns related to fracking, Commissioner

Martens chose to ban fracking in New York State, based on a public health review led by

Commissioner Zucker, which stresses that:

As with most complex human activities in modern societies, absolute scientific certainty

regarding the relative contributions of positive and negative impacts of [high volume hydraulic

fracturing] HVHF on public health is unlikely to ever be attained. In this instance, however, the

overall weight of the evidence from the cumulative body of information contained in this Public

Health Review demonstrates that there are significant uncertainties about the kinds of adverse

health outcomes that may be associated with HVHF, the likelihood of the occurrence of adverse

238 James Conca, “New York Fracking Ban Contrary To State’s Energy Future.”

239 Cama, “Interior secretary criticizes fracking bans.”

240 Ibid.

241 Ibid.

242 New York State Department of Environmental Conservation, “High-Volume Hydraulic Fracturing in NYS”; New

York State Department of Health, “A Public Health Review of High Volume Hydraulic Fracturing for Shale Gas Development”; New York State Department of Environmental Conservation, “FINAL SUPPLEMENTAL GENERIC ENVIRONMENTAL IMPACT STATEMENT ON THE OIL, GAS AND SOLUTION MINING REGULATORY PROGRAM: Regulatory Program for Horizontal Drilling and High-Volume Hydraulic Fracturing to Develop the Marcellus Shale and Other Low-Permeability Gas Reservoirs - FINDINGS STATEMENT.”

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health outcomes, and the effectiveness of some of the mitigation measures in reducing or

preventing environmental impacts which could adversely affect public health.243

[…] significant uncertainty remains regarding the level of risk to public health and the

environment that would result from permitting high-volume hydraulic fracturing in New York,

and regarding the degree of effectiveness of proposed mitigation measures. Consequently, and

due to the limited economic and social benefits that would be derived from high-volume

hydraulic fracturing, the No-Action alternative is the only reasonable alternative consistent with

social, economic and other essential considerations.244

The health concerns are also shared by health professionals on a national scale, inter alia,

expressed in a letter sent to President Obama in February 2014.245

The health professionals

underscore that if “[l]eft unchecked, high-volume horizontal hydraulic fracturing could soon

emerge as one of the greatest environmental health threats we have faced in a generation.”246

Moreover, it is also stressed in the Compendium that no evidence was found in the examined

medical and public health peer-reviewed literature that would indicate that fracking can be

conducted in a way without threats to human health.247

In addition, it is stressed that scientific

inquiry to the impacts of fracking continues to be thwarted by industry secrecy and government

inaction, which in particular raise potential problems such as cumulative, long-term risks

243 New York State Department of Health, “A Public Health Review of High Volume Hydraulic Fracturing for Shale

Gas Development.” Introductory statement by Acting Commissioner of Health, Howard A. Zucker. 244

New York State Department of Environmental Conservation, “FINAL SUPPLEMENTAL GENERIC ENVIRONMENTAL IMPACT STATEMENT ON THE OIL, GAS AND SOLUTION MINING REGULATORY PROGRAM: Regulatory Program for Horizontal Drilling and High-Volume Hydraulic Fracturing to Develop the Marcellus Shale and Other Low-Permeability Gas Reservoirs - FINDINGS STATEMENT,” 5. 245

Courtney Abrams, “Letter to President Obama on Fracking.” The letter was sent by the Clean Water Program Director from EnvironmentAmerica, Courtney Abrams, but includes letter statements signed by more than a 1,000 “doctors, nurses, researchers and other health and public health professionals” from the U.S. 246

Ibid. 247

Physicians for Social Responsibility and Concerned Health Professionals of New York, “COMPENDIUM OF SCIENTIFIC, MEDICAL, AND MEDIA FINDINGS DEMONSTRATING RISKS AND HARMS OF FRACKING (UNCONVENTIONAL GAS AND OIL EXTRACTION),” 4.

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uncertain due to lack of research, identification and monitoring.248

This is one of the critical

issues pointed out by the Special Rapporteur on toxic substances and wastes—who stressed that

the consequence is that people affected will not know about health effects until after they have

become sick. The Compendium points to non-disclosure agreements, sealed court records, and

legal settlement that prevent families and doctors from discussing health impacts or injuries from

fracking exposure, which means that, according to the Compendium; “no quantitative and

comprehensive inventory of human hazards yet exists.”249

The Compendium and accompanying

letters were sent to president Obama and the governors and state health and environment agency

leaders of Pennsylvania and Maryland, calling for a moratoria or bans on fracking since:

Drilling and fracking in Pennsylvania have caused widespread water contamination, dangerous

air pollution, and serious public health impacts. Given the considerable weight of the scientific

evidence showing harm, Governor Wolf should enact a moratorium on fracking to protect

public health.250

The scientific evidence is irrefutable – fracking is dangerous and cannot be conducted safely

anywhere in the U.S. Based on the findings of hundreds of peer-reviewed studies, New York

State’s ban not only makes sense: it is necessary to protect our residents’ health and safety.

More states should follow New York Governor Andrew Cuomo’s lead and keep fracking out of

their communities.251

248 Ibid.

249 Ibid.

250 Concerned Health Professionals of NY, “Groups Send Letters about Health Impacts and Calling for Moratorium.”

251 Ibid. On an international level, fracking has also been banned in countries such as France, Germany, Ireland,

Netherlands, Spain, Bulgaria, Switzerland and parts of Canada, as well as Scotland and Wales have imposed moratoria.

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Other Human Rights Concerns

In addition to public health effects due to environmental pollution, the Compendium also notes

that, according to the Bureau of labor statistics, the number of fatal work injuries in oil and gas

extraction industries rose 27 percent between 2013 and 2014 (preliminary results).252 Another

issue, which also is relevant in Pennsylvania, is the amount of water used for fracking; a gas well

on average consumes 5.1 million gallons of water, according to a U.S. Geological study from

2015. The Marcellus (and Utica) Shales which both underlie watersheds in parts of Pennsylvania

(among other states) are listed in top seven of water-consuming shale basins.253 This can for

instance impact the right to drinking water, and livelihood in relation to farming and agriculture.

Moreover, the Compendium also notes that the industry’s economic arguments in favor of

fracking can be questioned, since independent analyses show that the anticipated local job

creation has been overstated, inter alia, because many jobs go to out-of-area-workers. It is

further stressed that communities instead “have experienced steep increases in rates of crime,

including sex trafficking, sexual assault, drunk driving, drug abuse, and violent victimization”

which also have led to additional public health consequences. This can in particular affects

women, and can bring social costs for individuals, as well as the states, in form of negative

impacts on property values.254

As a very important point, the Compendium underscores that studies indicate inherent

engineering problems which includes uncontrolled and unpredictable fracturing and extensive

252 Physicians for Social Responsibility and Concerned Health Professionals of New York, “COMPENDIUM OF

SCIENTIFIC, MEDICAL, AND MEDIA FINDINGS DEMONSTRATING RISKS AND HARMS OF FRACKING (UNCONVENTIONAL GAS AND OIL EXTRACTION),” 10, 62–71. 253

Ibid., 28. 254

Ibid., 13. Jobs and other economic effects further elaborated on pp. 125-142.

70

methane leakage.255 This also leads us to the issue of fracking’s impact on climate change.

Though not addressed specifically in relation to fracking in Pennsylvania, fracking’s negative

impact on climate change is also highlighted in the Compendium.256

Climate change is no longer only addressed as a purely environmental issue; the links to human

rights are also increasingly emphasized. The WHO for instance stresses the need for action on

climate change, stressing that “climate change is the greatest threat to global health in the 21st

century.”257 And further notes that “the United Nations Climate Change Conference (COP) in

Paris in December [2015] […] may be the most important health agreement of the century.”258

Food and Water Watch underscores that it is crucial to stop climate change to protect the access

to safe food and water, which include shifting towards renewable energy sources.259 And even

Human Rights Watch is now also moving climate change on to the human rights agenda, by

directing attention to some of the devastating impacts climate change is causing or reinforcing, in

particular in relation to the rights to water, food and livelihood, health, and security.260 One of the

critical points the Compendium underscores is that fracking is a bigger climate threat than

255 Ibid., 4 and 9.

256 Ibid., 108–117.

257 World Health Organization, “WHO Calls for Urgent Action to Protect Health from Climate Change – Sign the

Call.” 258

Ibid. 259

Food & Water Watch, “Climate Change & Environment”. See also: Center for International Environmental Law, “Programs”; Center for International Environmental Law and CARE International, “Climate Change: Tackling the Greatest Human Rights Challenge of Our Time”; International Bar Association, “Achieving Justice and Human Rights in an Era of Climate Disruption.” 260

Human Rights Watch, “Environment”; Human Rights Watch, “UN”; Joseph Amon and Katharina Rall, “COP21”; Katharina Rall, “Dispatches”; Katharina Rall, “In Turkana, the Stakes Are High.”

71

previously believed.261 In March 2015 a group of expert from various areas of law adopted the

Oslo Principles on Global Obligations to Reduce Climate Change (Principles), which emphasize

the risks climate change pose for both present and future generations.262

Human rights are

explicitly referenced in the Principles which underscore that the obligations established in

international law entail; “to act cooperatively to protect and advance fundamental human rights,

including in the context of climate change and its effects on people’s ability to exercise such

rights.”263

The Principles stress the “grave risks of irreversible harm” posed by climate change,

and point to the incorporation of the precautionary principle to ensure a reduction of greenhouse

gas emission (GHG).264

This further supports the case of addressing fracking as a human rights

issue. As the ongoing California methane leak illustrates, fracking can pose a very high risk to

climate change when incidents like Porter Ranch happen and the industry fails to respond.265

An

incident like this, which has been described as the worst environmental disaster since BP, once

again underscores that regulation may not be sufficient, and strengthens the case for a ban on

fracking.266

261 Physicians for Social Responsibility and Concerned Health Professionals of New York, “COMPENDIUM OF

SCIENTIFIC, MEDICAL, AND MEDIA FINDINGS DEMONSTRATING RISKS AND HARMS OF FRACKING (UNCONVENTIONAL GAS AND OIL EXTRACTION),” 10, 108, 111 and 114. 262

OSLO PRINCIPLES ON GLOBAL CLIMATE CHANGE OBLIGATIONS, “Oslo Principles on Global Climate Change Obligations.” 263

Ibid. 264

Ibid. 265

Paige St. John, “Efforts to Plug Porter Ranch-Area Gas Leak Worsened Blowout Risk, Regulators Say”; Zahira Torres and Frank Shyong, “Leaking Gas Well in Porter Ranch Area Lacked a Working Safety Valve.” As methane is also a GHG. 266

Goldenberg, “Massive Natural Gas Storage Leak Alarms California Residents, Climate Activists”; Democracy Now!, “Erin Brockovich.”

72

Conclusion

Despite Pennsylvania’s strong environmental rights amendment, and assurance from the

Pennsylvania DEP that fracking activities will not conflict with environmental protection and

public health, many residents and local organizations are reporting about extensive

environmental harm and severe and unexplainable health effects after fracking activities have

begun near their homes. Water contamination has for instance now been fully documented, as

well as health professionals and an increasing amount of scientific studies stress that there is a

serious cause for concern regarding fracking’s potential short and long term health effects.

Moreover, fracking has also led to explosions, which could happen again, leaving both residents

and workers at constant risk. Despite these incidents and concerns, no prior health impact

assessment appears to have been performed by any state agencies. There is furthermore no

information to find on Pennsylvania’s Department of Health’s website regarding any ongoing or

planned health impact assessment.

The lack of access to information is a critical issue regarding fracking operations in

Pennsylvania, in particular in relation to the chemicals used in the fracking process. The lack of

full chemical disclosure for instance prevents those affected to receive and access imperative

information on health and safety risks. As the Special Rapporteur on toxic substances and wastes

has stressed, the right to information is an important factor for the realization of other human

rights. The fulfillment of the right to information is therefore essential in relation to fracking,

which in particular raise serious concern for the protection of the right to clean water and health.

As the Rapporteur also has stressed, information however often does not become available until

after harms have occurred—which can impact the right to life. As some scientific studies have

indicated this could potentially also become the case in relation to fracking, due to the health

73

risks identified. However, whereas some U.S. states like Vermont, Maryland and New York have

decided to halt or completely ban extraction of shale gas by the use of fracking, based on a

precautionary approach, the fracking industry continues to be exempted from several federal

protective provisions. Local organizations furthermore report that the industry is poorly regulated

on a state level, and that the amount of violations of existing laws is so high that it appears to

have become an integral way of doing business. Fracking thereby seems to be following the oil

and gas industry’s history of causing environmental pollution, with subsequent impact on several

human rights. The cases in this thesis indicate that environmental pollution from oil and gas

extraction not simply is a matter of a few single incidents, but rather a consistent pattern of

incidents that continue to occur due to lack of regulation and enforcement of the industry, by the

state and federal governments. This can possibly lead to severe and long term, even sometimes

fatal, consequences. Although the U.S. has not ratified the ICESCR, which covers the right to

water and health, the Special Rapporteur on the environment has stressed that a healthy

environment is a prerequisite for the enjoyment of other human rights, including the right to life.

And though U.S. states not are committed to fulfill social and economic rights through federal

level treaty obligations, Pennsylvania has for instance implemented a right to clean air and pure

water in its own constitution. This was for the first time reaffirmed in a recent ruling by the

Pennsylvania Supreme Court, and it will be interesting to follow whether this will lead to

stronger protection of human rights in relation to fracking in the state.

But fracking is not only occurring and causing concern in Pennsylvania. Shale gas has come to

play a central role in the U.S. energy policy as a move towards independence of foreign oil, as

well as it is play a central role in the U.S.’ move towards a more climate change-friendly energy

path. Several U.S. states have joined the federal government’s lead, and the extraction of shale

74

gas has increased so much that the gas now also is projected to be exported on to the

international market. Because of the U.S.’ powerful international political and economic status,

the actions and non-actions of the U.S. can shape the future development of shale gas extraction

both within and outside the U.S. This has significant implications, because not only is the claim

that shale gas is a more climate friendly fossil fuel being disputed by scientific studies, but the

increasing amount of documented incidents and scientific studies also stress that fracking can

cause severe and irreversible harm to workers and those living nearby fracking sites. Some U.S.

states, and countries in Europe, have chosen to ban fracking based on a precautionary approach,

however the decision-making and regulation of fracking activities continue to be decided on a

state-by-state basis. But as the research for this thesis has shown, a precautionary approach

should be established as the norm when considering the development of shale gas extraction by

the use of fracking—and in general in relation to oil and gas extraction. The linkage between

environmental harm and human rights abuses have increasingly been recognized and established

by international organizations, in particular through the work of the UN special procedures. And

the research for this thesis further shows that this link also exists in relation to fracking. By

exempting the industry from international as well as domestic regulations, the U.S. federal and

state governments have left the people affected by environmental pollution without protection

from abuses caused by the industry. This gap needs to be closed and the impacts of fracking on

human rights need to be addressed. Fracking should therefore not proceed until it can be

established that it is not causing harm.

75

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