Shale “Exempt” From Federal Laws? Um, Not Even Close.

For years, opponents of hydraulic fracturing have perpetuated the claim that shale development is somehow “exempt” from federal laws. One of the most persistent exponents of this talking point is Amy Mall of the Natural Resources Defense Council (NRDC), who constantly pushes the fallacious assertion that oil and gas corporations “enjoy exemptions from critical protective environmental provisions in the Safe Drinking Water Act and Clean Water Act.” Dr. George Peridas of the NRDC, in opening remarks at last year’s SXSW Eco Conference, echoed Mall’s sentiments, characterizing shale development as “an unregulated free for all,” claiming that the “industry is exempt from RCRA, the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act.”

First of all, the idea that any industry would be allowed to run amok as an “unregulated free for all” is just absurd.  Second, while states have (and have always had) primary regulatory authority over hydraulic fracturing, oil and gas producers also have to abide by a whole host of federal laws – in fact, every step of the way they are regulated at the federal, state, and local levels, often at multiple levels simultaneously.

A report released by the Government Accountability Office (GAO) in September 2012 should finally set the record straight on opponents’ claims. In it, the independent agency makes clear that oil and gas developers are required to comply with no fewer than eight federal regulations. From that report:

As with conventional oil and gas development, requirements from eight federal environmental and public health laws apply to unconventional oil and gas development. For example, the Clean Water Act (CWA) regulates discharges of pollutants into surface waters.  Among other things, CWA requires oil and gas well site operators to obtain permits for discharges of produced water – which includes fluids used for hydraulic fracturing, as well as water the occurs naturally in oil- or gas-bearing formations – to surface waters.  In addition, the Resource Conservation and Recovery Act (RCRA) governs the management and disposal of hazardous wastes, among other things.

The report goes on to cite the specific federal environmental and public health laws that govern the development of oil and gas, which 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 Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) – all laws that opponents continually claim are, somehow, “exemptions.”

So, not only do oil and gas producers have to comply with overarching federal laws, they must do so on top of a slew of stringent state regulations.  To cite one example, let’s look at Ohio: after going through the process required to obtain the initial permit from the Ohio Department of Natural Resources (ODNR), companies must then acquire a number of additional federal and state permits before they can even think about drilling the well.  Our EID colleague in Ohio, Shawn Bennett, has the full story, but just to summarize a few points here:

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.

Of course, since opponents’ claims about the Clean Air Act and the Clean Water Act have turned out to be a pretty hard sell, they continue to recite their talking points on the Safe Drinking Water Act ad nauseum.  So let’s clear the air one more time on that: hydraulic fracturing was not “exempted” from the Safe Drinking Water Act.  The SDWA became the law of the land in 1974, long after the first use of hydraulic fracturing, which occurred in the 1940s. Since then, the Act has been amended and updated more than a half-dozen times – and still has very little to say about hydraulic fracturing. How can a process be “exempt” from something that never covered — and was not designed to cover — it in the first place? Your guess is as good as ours.

This fracturing process is, however, aggressively regulated by the states, and this regulatory framework has resulted in a successful record of enforcement for over sixty years.  Even officials from the Obama administration have admitted that state regulators are far more capable in this task than the federal government.  As Carol Browner, President Clinton’s EPA Administrator said in 1995, “EPA does not regulate – and does not believe it is legally required to regulate – the hydraulic fracturing of methane gas production wells…”  President Obama’s former EPA chief Lisa Jackson has also recognized the effectiveness of states taking the lead.  As she said in 2011, “We have no data right now that lead us to believe one way or the other that there needs to be specific federal regulation of the fracking process” – and in February last year, she reaffirmed this position saying, “Let me speak really plainly: There is no EPA setup that allows us to oversee each and every well that’s drilled.”

What have been the results?  Going back to our example of Ohio, of the 329 wells that have already been developed in the Utica shale, there hasn’t been a single environmental violation.  Ohio is simply building on the record of success that has been repeated throughout the country for decades.

So, far from being “exempt,” shale producers have been held to even higher standards, complying with overlapping federal and state regulations, and held accountable by state regulators who are far better equipped to oversee the process.

  • m4570d0n
    Posted at 13:43h, 17 May Reply

    You could also refer to the EPA’s own paper available on their site titled “Exemption of Oil and Gas Exploration and Production Wastes from Federal Hazardous Waste Regulations” (here:

    It explains in detail, and in easily understood language, why the disposal of used hydraulic fracturing fluids (among many many other things) are exempt from RCRA Subtitle C, and how this does NOT preclude them frum regulation under Subtitle D, any other federal regulation, or any state regulations. Additionally, it points out that unused fracturing fluids are NOT exempt from Subtitle C.

  • Amy Mall
    Posted at 17:42h, 17 May Reply

    Hi Katie:

    I wanted to clarify that I have never stated that the oil and gas industry is not subject to any federal laws; I have said the industry is exempted from certain “provisions” of federal laws. Last October I blogged about the same GAO report that you mention in this post and referred to some of the federal laws that currently govern the oil and gas industry:

    Regarding the Safe Drinking Water Act, the 11th Circuit of the U.S. Court of Appeals held in 1997 that hydraulic fracturing “falls within the plain language of the statutory definition of ‘underground injection’” and noted that the 1974 House Report specifically states that the law’s definition of underground injection is intended to cover any contaminant that is put below ground and flows or moves. If hydraulic fracturing was never covered by the 1974 law, why did Congress go out of its way in 2005 to create an exemption for the industry from that law–by enacting a provision that states “underground injection… excludes: the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations”? (42 USC § 300h-1 (d)(1)(ii))

  • MMA
    Posted at 10:23h, 06 September Reply

    I’m glad to hear that Ohio has stringent and more than adequate regulations that drilling and energy companies must adhere to. Would that it were that way in Pennsylvania. There are plenty of environmental violations there:
    I’m sure state regulations would be quite adequate in regulating the industry, as along as the industry hasn’t bought the state politicians. In the 2010 election, donors from the oil and gas industry gave the Tom Corbett campaign $1.3 million and Energy sector donors contributed a combined $768,438 to the legislators sitting on the House and Senate Environmental Resources & Energy committees in Pennsylvania. (Source:

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  • Leigh
    Posted at 16:11h, 14 June Reply

    Lies, lies and more lies. Oil and gas companies are exempt from at least 7 laws already in place. The EPA has members that have said they were “Strongly pressured” by above mentioned companies. It is worth everyones’ time to research this issue. These big companies and many higher-ups don’t give a rat’s ads about public safety regarding safe air or drinking water. Think Erin Brocovich and Flint, Michigan. Research people! And don’t believe anyone who says fracking is safe.

    • rick
      Posted at 08:07h, 20 October Reply

      i agree I just say a special on pbs about this and how the oil companies can go on your land if you are on an oil reserve. It is property the oil co property and they can legally go on your property without your consent and ruin your land and your life.” But it’s not bad for you.” They do not have to pay you a dime–and they don’t. In Fact you are in their way even though they cannot kick you out–What a great country! I have so many rights I feel so privledged to be American. By the way this was brought to you by Dick Cheney and George Bush. I wonder what the founding fathers would think of our country now and I wonder who Katie brown works for?

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