Fracking Regulations On Shaky Ground

By Zosha Millman | LXBN | June 23, 2016

Perhaps one of the most controversial energy sources these days is fracking—which is exactly why court cases on the matter are far from clear cut.

This week a federal judge in Wyoming struck down the Obama administration’s regulations on fracking, ruling that the Bureau of Land Management (BLM) doesn’t have authority to establish rules over fracking on federal and Native American lands. The decision is just one in what’s likely to be a long journey filled with appeals and ups-and-downs for both sides. But this case isn’t as simple as for and against regulation.

The rules tried to address the boom in the fracking (or hydraulic fracturing) industry, which has grown in popularity and skepticism in recent years. As the demand for fracking grew, outsiders grew more and more concerned with the perceived environmental and social impact of the practice. BLM’s rules attempted to curb that by including requirements for companies drilling for oil and natural gas to disclose the chemicals they use in the fracking process, while also mandating storage protocols for recovered wastewater, cement barriers between the wells and water zones, and detailed disclosure of locations for existing wells. Which was not popular with fracking professionals, nor many communities from Wyoming, Colorado, North Dakota, Utah, and the Ute Indian tribe who brought the issue to court.

Photo Credit: WildEarthGuardians cc

In his ruling, U.S. District Judge Scott Skavdahl made it clear that what he was not attempting to decide was the environmental impact of fracking. He was there strictly to decide whether the Obama administration overstepped their bounds with the BLM’s regulations, and he found that they did.

“The SDWA specifically addresses protection of underground sources of drinking water through regulation of ‘underground injection,’ and Congressional intent as expressed in the 2005 EP Act indicates clearly that hydraulic fracturing is not subject to federal regulation unless it involves the use of diesel fuels,” said Skavdahl in his opinion. “The BLM has attempted an end-run around the 2005 EP Act; however, regulation of an activity must be by Congressional authority, not administrative fiat.”

With one of the major battles in the fight for fracking about whether state bans are permissible and how they happen, this week’s decision is a victory for opponents of federal oversight on this matter. The difficulty here is that while it’s not the issue before Skavdahl, the evidence of a costly environmental impact seems to be stacking up around fracking sites. And we may only be seeing the start of it, as many worry that wells built for this form of natural gas extraction have seen an expansion that greatly outpaces the science done to understand its potential impacts.

But the flip side of this is that Congress seems to have repeatedly seen to it that the ability to regulate frackingstays with the states. And though that creates a bit of a patchwork, it’s not like states aren’t acting in this area, as Wayne D’Angelo noted in an LXBN TV from 2012:

There is a sort of a goldilocks scenario for legislation: At a federal level they can’t really set regulations that represent a local hydrology or geology. And states have the ability to recognize that, and they have and they’ve been very successful so far. They’ve got experience regulating and they’ve got a really good track record; like I said earlier there’s not been an instance of groundwater contamination caused by hydraulic fracturing.

And they are regulating, the big misinformation is that we need federal regulation because states aren’t doing anything and that’s absolutely false.

…Places like Ohio have said they recognized it, they are the primary regulator there. They had some seismic activity last year around New Year’s Eve. They did a formal and an informal moratorium on permits for this underground injection control wells. And when they crafted their hydraulic fracturing regulations they were able to do so in a way that protects these geologic formations that were causing these seismic events. And that’s the sort of level of granularity and specificity that only a state can do. The EPA and the federal government, they have a lot of tools, but they’re rather hamfisted in that what they do they have to do in a rather broad national basis.

But for some it’s bigger than just specificity. As Native American communities gain some legal independence, there’s a lot more opportunities for them to assert their sovereign rights against the federal government. And that includes fracking, where they argue their lands shouldn’t be lumped in with public lands to begin with. In their brief to the court, the Ute Tribe stated that they agreed with the states that the Bureau lacks rulemaking authority here, and they deserve to have their autonomy respected. The stakes are high for fracking on tribal lands and increased tribal jurisdiction means letting these communities suss out for themselves how to maneuver that.

As the case continues—which it already seems to be, at the Tenth Circuit—the government may be right thatthere need to be more standards to keep the public safe from the dangers of fracking. But as with most law, it’s not as clear cut as it may initially seem.

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