Moving the Goalposts in Texas

EID hasn’t been all that active in the current debate in Texas over legislation that supporters say will promote broader public disclosure of the 0.5 percent of fracturing solutions not made up of water and sand (our colleagues at TXOGA and TIPRO have proven more than capable of handling that issue themselves!), but an article filed on the subject by Joe Carroll of Bloomberg News this week really caught our eye.

In it, Carroll quotes NY-based NRDC attorney Kate Sinding putting forth the idea that the Texas disclosure bill is a “half-measure,” apparently because it contains limited confidential business information (CBI) protection for companies that spend tens of millions of dollars a year on the research and development required to produce world-class fracturing solutions.

Keep in mind here that the bill mandates the full disclosure of the entire universe of additives and constituents used in the process. Apparently, though, because the legislation would protect some information related to formulas, it doesn’t meet a standard that would allow a group like NRDC to support it – notwithstanding the fact that the bill has earned at least the conditional support of the Sierra Club and the Austin, TX-based Environmental Defense Fund.

Here’s the interesting thing, though: While NRDC apparently opposes the Texas bill because of its CBI protections, it remains an active supporter of the FRAC Act, which includes the following section (line 21) on CBI:

‘‘Subparagraphs (A)(i) and (A)(ii) do not authorize the State (or the Administrator) to require the public disclosure of proprietary chemical formulas.’’

So, in other words, NRDC opposes the Texas bill because it includes limited protection for formulas. But it supports the FRAC Act, even though a plain-reading of the text indicates it would do the same thing. What gives?

Well, as we’ve argued from the start, the FRAC Act isn’t actually about promoting increased disclosure at all – it’s about assigning EPA the authority to directly regulate a process that it has never in its history regulated before, under a provision of the Safe Drinking Water Act that was, as Carol Browner once wrote, never intended for that purpose. That’s why NRDC supports the bill – not because of its disclosure sections, but because it believes (correctly) that it would at best greatly limit, and at worst bring to an end entirely, the responsible deployment of fracturing technology in the context of onshore energy development in America.

Of course, this isn’t the first time that NRDC has sought to move the goalposts in response to industry efforts aimed at promoting greater disclosure. Late last year, NRDC’s Amy Mall (who recently moved from Colorado to NRDC’s Washington office…welcome!) criticized one industry disclosure initiative for not including information on a well-by-well basis, even though she had to have known that the company leading the charge on that effort didn’t even have custody over that information. (EID’s Lee Fuller posted an op-ed about this issue in the Washington Examiner this past April).

Well, earlier this year, the Ground Water Protection Council, in conjunction with the U.S. Dept. of Energy, launched a national fluids disclosure database that not only makes public that well-by-well information, but also includes data on the volumes of fluids being used, the concentrations of chemicals, and even Chemical Abstracts Service (CAS) number – another thing that NRDC had previously cited as being necessary to include to earn its support.

Well, guess what? NRDC filed a blog post last month opposing that initiative as well – changing the rules of the game once again by stating that anything short of full, mandatory, federal disclosure would fail to meet its ever-changing standards. And you know what? They might have a point there if the voluntary system wasn’t working – if no major companies were participating, or no new wells were being posted online. In reality, though, the opposite has turned out to be true: in the two months since the was launched, the number of companies now posting their well-by-well information has tripled. And the number of wells listed, best we can tell, has increased by a factor of four. All this in only two months of operation.

Of course, none of that really matters – because this issue has never really been about disclosure; it’s about direct EPA regulation. To its credit, NRDC has done a great job heretofore of convincing folks of the former, and avoiding talk of the latter. Its position on the GWPC database dislodged that fig-leaf just a bit. Its position on the Texas disclosure bill has, in effect, blown that leaf away entirely. Now they’re just standing there nekked.

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