Five Problems with EIP’s ‘Fracking Loophole’ Report

Yesterday, the Environmental Integrity Project (EIP) released a new report attempting, once again, to undermine hydraulic fracturing. Its approach fits well within a trend of anti-fracking activism that carefully evades any discussion of causal mechanisms, opting instead to throw around as many buzz words as possible – “toxic” “fracking” “cancer” etc. – in the hopes of instilling maximum fear within the public.

The strategy is a continuation of EIP’s work from August, when the group released a report claiming that several oil and gas companies were violating the law regarding EPA requirements for diesel usage. But nearly all of the activities identified occurred before EPA had ever officially defined “diesel” for permitting purposes, rendering the report useless and misleading. A month later, they released a list of what they claimed were additional cases of diesel usage, even though many of those cases were also present in the previous report. If the goal was deception through double counting, EIP could pat itself on the back for a job well done.

Just like in the past, the problems with this new report are numerous. Here are just a few:

I. Establishes Health Threats without Scientific Basis

EIP conveniently forgets to explain how, exactly, the additives used during hydraulic fracturing would pose a threat to public health, as they alleged in their press release. That threat would come from the process contaminating groundwater, of which EIP provided absolutely zero evidence.

The troubling part is that this omission was likely deliberate. EIP had unsuccessfully tried to raise concerns about the use of diesel in fracking earlier this year, but the group’s Mary Greene begrudgingly acknowledged to a Texas newspaper:

“We found no direct indication of impacted groundwater from diesel in Texas.”

One of the stories that EIP was able to manufacture from its latest report, from Bloomberg News, even noted that EIP “didn’t provide any evidence” of hydraulic fracturing contaminating groundwater, just claiming that it “could” do so.

As regulators and experts have stated time and again, there is no evidence that hydraulic fracturing poses a credible risk of contaminating groundwater. The U.S. Secretary of Energy, the U.S. Geological Survey (USGS), the Environmental Protection Agency (EPA) Administrator, and many others have affirmed that fact. Two recent peer-reviewed studies even concluded that water contamination from hydraulic fracturing is “not physically plausible.”

A near endless list of products that we use in our everyday lives could be considered hazardous if they aren’t properly managed – from the soap on a kitchen counter to the chemicals in swimming pools that people safely use every day. Ginning up alarm and worry over all of these products, merely because the presence of a miniscule risk might exist, would hamstring the entire American economy. What EIP was trying to do – and, based on some of the press coverage, had some success in achieving – was absolve itself of having to provide any evidence whatsoever to support its claims, simply by wildly asserting that a health risks exists. The fact that the group could provide no evidence of any credible risk – i.e. through mismanagement, such as examples of water being contaminated by hydraulic fracturing – means it was simply try to scare the public, using “fracking” as its vessel.

II. ‘Discovers’ a Well-Worn Activist Talking Point

Cognizant of the fact that it needed an actual news hook, EIP pretends that its “review of product descriptions available online” revealed the use of benzene and ethylbenzene. But the newsworthiness of EIP’s claim came entirely from its clever phraseology: Gasland filmmaker Josh Fox was making the same claims about those substances when he produced his scientifically-dubious movie more than four years ago.

The only thing EIP “discovered” was a blueprint for how activist groups could spin more media coverage out of a talking point that they’ve been using for at least a half decade.

III. Rewrites History on Diesel (Again)

The entire study’s argumentative strategy hinges upon comparing the composition of diesel with the composition of other additives used during hydraulic fracturing. According to EIP, diesel had to be regulated separately by EPA purely because of its benzene content. In reality, EPA’s original concern with diesel fuel dealt with its use as a carrier fluid, rather than its use as a de minimis component within the additives. Today, water and sand constitute around 99 percent of the fluid used for hydraulic fracturing.

To be sure, EPA did raise concerns about the benzene content of diesel when used during hydraulic fracturing. But those concerns were premised on the notion that diesel was going to make up a significant percentage of the fluid that was injected downhole. EIP is suggesting that the mere presence of a substance will always present the same risk, regardless of its concentration or volume. That’s certainly not scientific, but given the myriad errors with EIP’s report, that should surprise no one.

IV. Argument by Buzz Words

EIP throws around the term “Halliburton loophole” throughout the report, making clear that they are more interested in advancing environmentalist talking points than in contributing to any sort of substantive, policy-oriented discussion.

The Safe Drinking Water Act was never meant to regulate hydraulic fracturing. Ten years before the so-called “loophole” was created, then-EPA Administrator Carol Browner declared that “the fracturing of methane gas production wells is not an injection operation subject to regulation under the Underground Injection Control (UIC) program.” She also observed: “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.”

V. Contradicts Itself on Disclosure Claims

The report portrays “the industry” as a manipulative entity that hides as much information as possible to avoid regulatory review and public scrutiny. Paradoxically, the entire report hinges upon EIP’s analysis of easily-obtained information about additives that are using during hydraulic fracturing — which the companies, in many cases, voluntarily disclosed. From the report:

“…the Halliburton Loophole allows unlimited injection of these non-diesel oils regardless of their benzene content without requiring disclosure that would allow a full assessment of the potential risk.” (p. 6)

Later in the report, in EIP’s “Recommendations” section, the group states:

“Meanwhile, the oil and gas industry can demonstrate its corporate responsibility by disclosing the BTEX content of the products they market or use.” (p. 10)

Either the authors are contradicting themselves, or they think the general public is too dumb to recognize that criticizing an industry for not disclosing information – based on a review of that information, publicly obtained, for free, online – makes absolutely no sense.


Ultimately, EIP’s goal is to restrict or shut down oil and gas development. Its acceptance of money from the Park Foundation, whose mission is to “oppose fracking” through its grants, along with the money it has taken from the anti-fracking company Patagonia, confirms as much. So, the fact that it released a report as inflammatory and dubious as this latest one should come as no surprise.

At the heart of EIP’s report is the suggestion that hydraulic fracturing poses an imminent public health threat – not because the group has identified any actual threats, but because certain additives are present within a carefully controlled and tightly regulated process. Followed to its logical conclusion – i.e. banning or restricting anything that poses any sort of risk – this sort of claim could shut down the entire economy. No amount of regulation would ever suffice, because the presence of risk, no matter how miniscule, would pose a “threat.”

Thankfully, the oil and gas industry is one of the most heavily regulated industries in the United States.  A report released by the U.S. Government Accountability Office (GAO) in September 2012 clearly explains that oil and gas producers, in order to successfully drill and complete any shale well, must comply with no fewer than eight federal regulations. Among them are:

  • The Safe Drinking Water Act (SDWA)
  • The Clean Water Act (CWA)
  • The Clean Air Act (CAA)
  • The Resources Conservation and Recovery Act (RCRA)
  • The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)
  • The Emergency Planning and Community Right-to-Know Act (EPCRA)
  • The Toxic Substances Control Act (TSCA)
  • The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)

In addition to federal laws, states actually provide the bulk of the oversight for oil and gas, a system that has been in place for well over a century. Even President Obama’s former EPA Administrator has acknowledged that fact. EID previously described in detail the full set of permits that need to be secured and regulations that have to be complied with just in the state of Ohio. Here is a brief summary:

First, operators must be approved by the Army Corps of Engineers and the U.S. EPA for Clean Water Act 401 and 404 permits for wetlands and water quality. If they receive the green light on these permits, then ODNR begins a technical review of the drilling permit to ensure the cementing plan is sufficient. If this plan is approved, water testing is completed for all homes within 1,500-feet of the wellhead, with results distributed to the landowners, ODNR and the company. Next, the company must work with the U.S. EPA and the Ohio EPA to file a Spill, Prevention, Control and Countermeasure (SPCC) plan. Then, companies must also file a permit to install and operate (PTIO) with the Ohio EPA for their production facilities that will be onsite. The PTIO regulates emissions from a production site under the Clean Air Act. Only after companies jump through all these hoops successfully can they begin to think about actually drilling a well.

Clearly, oil and gas development is a carefully-regulated and closely-monitored process. Despite EIP’s clever use of rhetorical phrases relating to “loopholes” and toxicity, the reality is clearly – and thankfully – far different.

1 Comment

Post A Comment