Curtailment First: Why Climate Change and the Energy Industry Suggest a New Allocation Paradigm Is Needed for Water Utilized in Hydraulic Fracturing

Victor Flatt *

Heather Payne **

Water, always necessary, is becoming less available. The Organization for Economic Cooperation and Development (“OECD”) predicts water use will increase by 55% between 2000 and 2050, and that by 2050, over 40% of the world’s population “will live in river basins under severe water stress.”[1] Climate change is making this worse. Approximately 486 million people will be exposed to water scarcity or aggravated scarcity even if the average global temperature rise is limited to 2°C.[2] If temperatures rise further, the numbers increase.[3] Looking at food production globally, a quarter of croplands lack adequate water, and 56% of irrigated land is under high to extremely high water stress.[4]

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*     Thomas F. and Elizabeth Taft Distinguished Professor in Environmental Law, and Director, Center for Law, Environment, Adaptation, and Resources (CLEAR) at the University of North Carolina School of Law.

**     Fellow, Center for Law, Environment, Adaptation, and Resources (CLEAR) at the University of North Carolina School of Law.

        [1].    OECD, Why Does Water Security Matter?, in Water Security for Better Lives 15 (2013), available at 02405-en.

        [2].    Dieter Gerten et al., Asynchronous Exposure to Global Warming: Freshwater Resources and Terrestrial Ecosystems, 8 Envtl. Res. Letters 034032, at 4 (2013), available at Another report has found that this level of temperature rise will increase the world’s population living under absolute water scarcity by an additional 40%. Jacob Schewe et al., Multimodel Assessment of Water Scarcity Under Climate Change, Proc. Nat’l Acad. Sci. 1 (early online ed. 2013), available at full.pdf.

        [3].    Gerten et al., supra note 2, at 4.

        [4].    Francis Gassert, One-Quarter of World’s Agriculture Grows in Highly Water-Stressed Areas, World Res. Inst. Blog (Oct. 31, 2013),’s-agriculture-grows-highly-water-stressed-areas.

Hydraulic Fracturing and the Baseline Testing of Groundwater

Keith B. Hall *

Hydraulic fracturing is a process that often is used to stimulate the production of oil and natural gas from low permeability formations. The process is controversial. Some people passionately support the use of hydraulic fracturing, while others fervently oppose it. Much of the controversy arises from the fact that many people fear that hydraulic fracturing might cause contamination of underground sources of drinking water. In part, the public debate and disagreement regarding hydraulic fracturing is fueled by competing opinions regarding how society should balance the tradeoffs between economic development and environmental protection. But this is only part of the disagreement.

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*  Campanile Charities Professor of Energy Law and Director of the Louisiana Mineral Law Institute. J.D., 1996, Loyola University School of Law; B.S., Chemical Engineering, 1985, Louisiana State University.


Reconciling Energy and Food Security

Rhett B. Larson *

Achieving food security and energy security are two primary policy aims of international and domestic law. Ironically, the pursuit of energy security can often frustrate efforts to achieve food security. Energy security is the condition of a nation and its citizens having reasonable physical and economic access to sufficient and sustainable energy.[1] Food security is the condition of a nation and its citizens having reasonable physical and economic access to sufficient and sustainable food.[2] These two objectives often collide in the area of agricultural water management. It is in that realm that, frustratingly, the goal of achieving food security most frequently comes into conflict with the ambition to achieve energy security.

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* Associate Professor of Law, The University of Oklahoma College of Law. M.Sc., 2011, Oxford University; J.D., 2005, The University of Chicago Law School; B.A., 2002, Brigham Young University. This article is written as part of the 2013 Allen Chair Symposium on the Energy-Water Nexus, hosted by the University of Richmond School of Law. My thanks go to Karen Bradshaw Schulz, Emily Hammond, Troy Rule, Dan Tarlock, David Grey, Patricia Wouters, and the panelists, presenters, moderators, participants, and organizers of the 2013 Allen Chair Symposium.

        [1].    Barry Barton et al., Introduction to Energy Security: Managing Risk in a Dynamic Legal and Regulatory Environment 5 (Barry Barton et al. eds., 2004); see Wen-chen Shih, Energy Security, GATT/WTO, and Regional Agreements, 49 Nat. Resources J. 433, 436 (2009) (citing U.N. Dev. Programme, U.N. Dep’t of Econ. & Soc. Aff., World Energy Council, World Energy Assessment: Overview 2004 Update, at 42, U.N. Sales No. E.04.III.B.6 (2004), available at laws/publication/en/publications/environment-energy/www-ee-library/sustainable-energy/ world-energy-assessment-overview-2004-update/World%20Energy%20Assessment%20Ov erview-2004%20Update.pdf).

        [2].    See, e.g., Special Session of the Committee on Agriculture, Negotiations on WTO Agreement on Agriculture: Proposals by India in the Areas of (i) Food Security, (ii) Market Access, (iii) Domestic Support, and (iv) Export Competition, ¶ 1, G/AG/NG/W/102 (Jan. 15, 2001), available at G/AG/NGW102.pdf.


Oil and Gas and Floods

Justin Pidot *

On March 24, 1989, the Exxon Valdez oil tanker ran aground on Bligh Reef.[1] Over the next five hours, the incapacitated vessel spilled more than ten million gallons of crude oil into Alaska’s Prince William Sound, and some of that oil remains in the environment to this day.[2]

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* Assistant Professor, University of Denver Sturm College of Law. I would like to thank Amanda Leiter, Nancy Leong, Lisa Grow Sun, and Annecoos Wiersema for their help with this article and the University of Richmond Law Review for inviting me to participate in the 2013 Allen Chair Symposium.

        [1].    Stephen Raucher, Raising the Stakes for Environmental Polluters: The Exxon Valdez Criminal Prosecution, 19 Ecology L.Q. 147, 147 (1992).

        [2].    Amy J. Wildermuth, The Legacy of the Exxon Valdez: How Do We Stop the Crisis?, 7 U. St. Thomas L.J. 130, 130 (2009).


Developing Adaptive and Integrated Strategies for Managing the Electricity-Water Nexus

Dr. Benjamin K. Sovacool *

Alex Gilbert **

Existing and planned reliance on thermoelectric power plants—facilities that burn oil, natural gas, coal, and biomass, or fission atoms—depends too heavily on assumptions of widespread, abundant water resources. As the Union of Concerned Scientists has estimated, power plants in the United States take in almost triple the average amount of water flowing over Niagara Falls each minute to meet their cooling needs.[1] Or, put another way, on a typical day more than 500 billion liters of fresh water travel through power plants in the United States—more than twice the amount flowing through the entire Nile River.[2] Yet water is a critical constraint often overlooked in electricity and energy decisions. When considered, it challenges us to think more broadly about integrated resource planning, reliability challenges, and resource selection.

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*     Institute for Energy and the Environment, Vermont Law School and Center for Energy Technologies, School of Business and Social Sciences, Aarhus University. Ph.D., 2006, Virginia Polytechnic Institute & State University; M.A., 2003, Wayne State University; B.A., 2001, John Carroll University.

** Energy Analyst, Haynes and Boone, LLP, and former research fellow at Vermont Law School’s Institute for Energy and the Environment. M.A. in Energy Regulation and Law, 2013, Vermont Law School; B.A., Lake Forest College, Environmental Studies and International Relations, summa cum laude.

        [1].    Kristen Averyt et al., Union of Concerned Scientists, Freshwater use by U.S. Power Plants: Electricity’s Thirst for a Precious Resource 1 (2011) [hereinafter Freshwater Use], available at Report.2011-11.UCS.Freshwater-Use-by-US-Power-Plants.10-028.pdf.

        [2].    The Coming Clash Between Water and Energy, IEEE Spectrum (May 28, 2010, 12:25 PM),


Insurance at the Energy-Water Nexus

Donald T. Hornstein *

As the outstanding contributions to this symposium demonstrate, the on-the-ground connections between water and energy are pervasive, multidimensional, and sobering. And, at the legal nexus between water and energy, the symposium’s contributors generally hint at some mix of land-use controls, common-law liability, or regulation to help mediate the challenges. Yet precisely because the challenges are so sobering, perhaps an even broader range of social institutions and solutions ought to be considered. In this essay, I offer some observations of the role that insurance may play at the energy-water nexus.

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*   Aubrey L. Brooks Professor of Law, University of North Carolina School of Law. Even though my experience with insurance and weather comes partly from my role as an appointed public member of the North Carolina Wind Pool, a $400 million insurance facility, the views expressed in this essay do not in any way reflect the views of the Wind Pool or even my own views when operating as a member of the Wind Pool’s Board of Directors.