Recently, seven environmental activist groups, including the Environmental Integrity Project (EIP), Natural Resources Defense Council and Earthworks, filed a 20-page notice of intent to sue the Environmental Protection Agency (EPA). The groups claim EPA has failed to review and update rules regarding oil and gas wastewater disposal, but a closer examination suggests that the groups are denying the existence of a robust regulatory framework governing waste, which involves the cooperation of local, state, and federal regulators.

What’s This Really About, Anyway?

The Resource Conservation and Recovery Act (RCRA) was passed by Congress in 1976 and provides the EPA with the authority to regulate the generation, transportation, treatment, storage and disposal of hazardous waste, and to a limited extent solid waste, which is covered by Subtitle D. In their notice of intent to sue, the green groups argue that the EPA has failed to review and update RCRA regulations since 1988 and, therefore, is in violation of a general provision that requires review every three years.

However, it’s important to recognize up front that these groups are committed to preventing the development of American oil and gas production. While they claim that “stronger rules are needed,” in reality their mission is to ban drilling entirely – and they will use any tactic to do so. One of the parties to the lawsuit, Earthworks, has declared a “war on fracking” nationwide. The Natural Resources Defense Council, another party, has called for fracking bans from New York to California, and a fair amount of what’s between them.

In this particular case, these groups are playing the “long game” of EPA regulation as a means of restricting drilling, which they’re trying to secure through a vague provision in federal law.

Interestingly, an article published by Adam Kron of EIP in the Vermont Journal of Environmental Law laid out this strategy for using the courts to compel EPA into action. Kron argued that the EPA “has not used its full regulatory power” to increase its purview over oil and natural gas operations. He also endorsed granting EPA new authorities without democratic oversight, stating that “there is much more that can be done without the action of Congress.” Environmental groups clearly see suing the EPA as easier (and therefore preferable) to democratic changes to the laws that Congress wrote, which is what inspired this latest “notice of intent to sue.”

It’s also worth noting that EIP has a history of misstating federal laws in order to argue that EPA should expand its authorities. For example, EIP previously claimed that companies were using diesel fuel during fracking, which some media outlets reprinted without scrutiny. But it wasn’t true. In fact, the claim was so misleading that it was debunked by the EPA’s own inspector general earlier this year.

Ignoring the Laws of the Land

More importantly, what these groups completely ignore is that there are dynamic regulations in place governing oil and gas waste, all of which are regularly reviewed and implemented by both states and the EPA.

As a point of fact, under RCRA, the EPA has a largely non-regulatory role over solid waste management. Instead, regulation of solid waste is left to the states, with the EPA providing guidelines and criteria to assist the states with developing solid waste management plans.

In turn, states have developed and implemented their own regulations to deal with solid waste disposal, which in many cases go above and beyond the basic criteria set by the EPA. As explained by the Government Accountability Office (GAO):

“Consistent with the scheme established by RCRA Subtitle D, states have primary responsibility for managing disposal of solid waste, including that resulting from oil and gas exploration and production. State solid waste programs regulate treatment (which may include incineration) and land disposal of these wastes, among other things. In addition, states may have specific programs to address oil and gas production wastes, and some states put such wastes in a special category of solid waste, such as industrial wastes, with more stringent requirements than the federal minimum requirements.” (emphasis added)

Also, states have specific requirements for waste management in pits (including pit siting, pit lining, freeboard and secondary containment and pit closure) and requirements for waste management through underground injections (including existing wells, casing/cementing, operating pressure, monitoring, mechanical integrity testing, plugging and seismicity). A reader can find specific examples of state regulations in Colorado, North Dakota, Ohio, Pennsylvania, Texas and Wyoming in Appendix IX of this GAO report.

The fact is, states have more regulatory authority over waste management – and oil and gas operations as a whole – because everyone, including the EPA, recognizes that state regulators have more expertise and are better able to address local concerns and conditions.

In 2011, then-EPA Administrator Lisa Jackson acknowledged that “states are stepping up and doing a good job” regulating hydraulic fracturing (fracking).  In 2012, she further confirmed the crucial role of state regulations:

“Let me speak really plainly. There is no EPA setup that allows us to oversee each and every well that is drilled.” (emphasis added)

States have also regularly modified and updated their regulations to respond to public concerns. A good example of this is in California, where this past July new rules required by SB 4 – California’s recent overhaul of its oil and gas regulations – became permanent.  Another example is in Oklahoma, where the state has implemented a “Traffic Light System” to address wastewater injection wells and induced seismicity. Established in 2013, the program has already been updated twice in 2015. Last year, the State of Texas also expanded its power over permitting for injection activities.

Yes, EPA Does Review Its Own Laws

Not only are states effectively regulating oil and gas – and constantly updating their rules to address new issues – but the greens’ claim that EPA has not “reviewed” state regulations is demonstrably false.

In 2014, the EPA conducted a review of state regulations for oil and natural gas wastes in 26 states. The report, entitled “Review of State Oil & Natural Gas Exploration, Development and Production (E&P) Solid Waste Management Regulations,” is based on information gathered from a number of sources, including:

• State regulations and statutes
• State regulatory agency personnel
• State Review of Oil and Natural Gas Environmental Regulations (STRONGER) Board State Reviews
• The 2009 Department of Energy (DOE) report “State Regulations Designed to Protect Water Resources”
• DOE’s Drilling Waste Management Information System

A summary of the report is posted on EPA’s website, but the EPA observed that “numerous states have recently updated [their] regulations” on hydraulic fracturing specifically, and that “state regulations continue to evolve” as additional information becomes available.

This information was clearly known to at least some of the potential litigants against EPA: The energy program director for Earthworks – one of the signatories of the notice of intent to sue – is a member of the STRONGER Board of Directors.

Furthermore, in the 1988 Regulatory Determination (the last time the environmental groups claim RCRA Subtitle D was reviewed), the EPA concluded that the state programs were effectively regulating oil and gas production waste. The 2014 EPA report proves that the same is true today.

In addition to EPA’s 2014 report, the EPA also conducts various annual reviews of its regulations. For example, every year the EPA reviews its programs and publishes a regulatory agenda for the upcoming year and beyond. The Agency holds various workshops in states to examine various aspects of RCRA, as well. EPA also reviews its programs and submits a budget to OMB and Congress annually. Finally, the EPA’s recent hydraulic fracturing report, which found no evidence of widespread water contamination from fracking, included a vigorous review of state regulations.

These are just some of the ways in which the EPA has reviewed state oil and gas regulations, including those specifically pertaining to waste, and why the activists’ claims are more about public messaging than an honest review of oil and gas regulation.

Conclusion

At the end of the day, the activists’ potential lawsuit is not only unwarranted, but also will not make oil and natural gas production safer. In fact, it could have the opposite effect. As explained above, states have more stringent regulations in place that often far exceed the baseline standards set by the federal government.

If the activist groups wanted the EPA to take action, the result would simply be generic guidance that would barely cover what the states are already doing. Another lengthy and redundant study of state regulations, which the groups are also demanding, would only waste taxpayer dollars.

So while these groups claim to want tougher regulations, in reality this is just another shallow attempt to slow down American oil and natural gas production.