Bipartisan Coalition of Senators Rejects Attempt to Put EPA in Control of Fracking
Some politicians in New York are back at it again, pushing the agenda of activists opposed to responsible oil and gas development over the facts. This week, U.S. Senator Kirsten Gillibrand (D-NY) introduced amendment 48 to the Keystone XL Act, which would remove what activists call “the Halliburton Loophole.” The amendment failed to receive the necessary votes to move forward.
The irony, of course, is that “loophole” doesn’t exist. For some background, the Safe Drinking Water Act (SDWA), and more specifically the Underground Injection Control (UIC) program, regulates wastewater disposal from a variety of processes, including hydraulic fracturing. However, SDWA – which has been in effect since 1974 – was never designed to cover the hydraulic fracturing process and has never included it. When the so-called “Halliburton Loophole” is discussed, what people are actually referring to is a 2005 bi-partisan energy bill that re-affirmed existing law under SDWA and continued to allow states to regulate the hydraulic fracturing process as they have always done.
Even a decade prior to the 2005 energy bill, then-Environmental Protection Agency (EPA) Administrator Carol Browner made it clear that EPA does not regulate hydraulic fracturing:
“The fracturing of methane gas production wells is not an injection operation subject to regulation under the Underground Injection Control (UIC) program. …EPA does not regulate – and does not believe it is legally required to regulate – the hydraulic fracturing of methane gas production wells under its UIC program.” (emphasis added)
Far from being “exempt,” the oil and gas industry is required to comply with no less than eight federal regulations, in addition to stringent local and state requirements, as highlighted in a recent report from the Government Accountability Office. These include the Safe Drinking Water Act (SDWA) (for disposal wells); Clean Water Act (CWA); Clean Air Act (CAA); Resources Conservation and Recovery Act (RCRA); Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); Emergency Planning and Community Right-to-Know Act (EPCRA); Toxic Substances Control Act (TSCA); and the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).
On the state level, in Pennsylvania alone — the state which holds the bulk of the Marcellus Shale that Senator Gillibrand’s home state decided not to develop — the industry abides by numerous regulations and safety standards. According to Pennsylvania’s Department of Environmental Protection (DEP):
“Oil and gas exploration is regulated under the state’s oil and gas laws (Oil and Gas Act, Coal and Gas Resource Coordination Act, and Oil and Gas Conservation Law) and the environmental protection laws that include the Clean Streams Law, the Dam Safety and Encroachments Act, the Solid Waste Management Act, the Water Resources Planning Act and the Community Right to Know Act.”
The DEP is also just one of many regulatory bodies in the state. In addition to federal laws from the U.S. Environmental Protection Agency, Fish and Wildlife Service, Army Corps of Engineers, Occupational Health & Safety Administration, and others, operators in the state also abide by regulations under the County Conservation District, Department of Conservation and Natural Resources, Pennsylvania Fish & Boat Commission, Pennsylvania Game Commission, Pennsylvania Department of Transportation, Susquehanna River Basin Commission, Delaware River Basin Commission, Pennsylvania Historic Museum Commission, and the Pennsylvania Public Utility Council.
Most importantly, these overlapping regulations are ensuring that oil and gas development in the Marcellus and beyond continues to occur in unison with environmental protection across the nation. As Interior Secretary Sally Jewell recently stated, “it [fracking] is being done safely and responsibly.” With regard to water contamination concerns specifically, experts and regulators alike have found time and again that fracking has not contaminated groundwater. For instance:
- According to Ernest Moniz, Secretary of U.S. Dept. of Energy, “To my knowledge, I still have not seen any evidence of fracking per se contaminating groundwater.”
- A recent report from the Government Accountability Office (GAO) stated, “[R]egulatory officials we met with from eight states – Arkansas, Colorado, Louisiana, North Dakota, Ohio, Oklahoma, Pennsylvania, and Texas – told us that, based on state investigations, the hydraulic fracturing process has not been identified as a cause of groundwater contamination within their states.”
- According to a 2014 landmark study by the S. Department of Energy’s (DOE) National Energy Technology Laboratory (NETL) that injected tracers into the hydraulic fracturing fluid in a well in Greene County, Pennsylvania to track for any signs of possible migration, “Current findings are: 1) no evidence of gas migration from the Marcellus Shale; and 2) no evidence of brine migration from the Marcellus Shale.”
As Lee Fuller, Executive Vice President of the Independent Petroleum Association of America, stated in E&E News prior to the vote, Amendment 48 “undercuts the work, investment and dedication America’s oil and gas industry puts toward complying with the wide array of existing state and federal laws to ensure the continued health of our environment and groundwater.” Fortunately, the amendment failed to receive the necessary votes to move forward yesterday, indicating that the majority of congressional leaders from both sides of the aisle understand that hydraulic fracturing is occurring safely across the country while protecting our precious water supplies and creating new economic and environmental opportunities for all Americans.