About Fracking Time: An EPA Report Anticipated in 2014 May Catalyze Federal Legislation

By: Natalie Walet, Associate 

The benefits of hydraulic fracturing, commonly known as fracking, are generally accepted: the drastic increase in supply of natural gas has kept the price of gas low and improved the nation’s energy security.[1] Its costs, on the other hand, particularly on human health and the environment, remain highly contested.[2] It is difficult to discern the truth about fracking’s impact from the ubiquitous reports, articles, and editorials on the matter, as there are many points of disagreement.[3] One thing is certain from this ongoing debate, however; the biggest problem we are now facing regarding fracking is the lack of reliable information.[4]

To this end, and at the behest of Congress, the EPA has been working on an intensive report set to come out in 2014.[5] This report is likely to shed necessary light on the issue,[6] and may incentivize Congress to enact the pending Fracturing Responsibility and Awareness of Chemicals Act (the FRAC Act), or similar legislation that will empower the EPA to promulgate rules in an area that has remained untouched by federal regulation. [7]

As it stands, states are chiefly responsible for promulgating regulations on fracking within their borders.[8] The only existing federal laws on point are the Safe Drinking Water Act (SDWA), the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA).[9] Both the SDWA, which deals with the underground injection of certain fluids, and the RCRA, which gives the EPA the power to regulate hazardous waste, expressly exempt fracking from their purview.[10] This is referred to as the Halliburton Loophole.[11] That leaves only the CWA to impose its rules on fracking, but it too is limited.[12] The CWA only indirectly regulates fracking in that it deals with the disposal of fracking bi-products—certain fluids that are discharged into surface waters—but not on the process of fracking itself.[13]

The CWA may not be the lone statute for long. Indeed, a bill that was initially considered in 2008 has been reintroduced.[14] The pending FRAC Act would remove the Halliburton Loophole and require fracking companies to disclose their chemical compounds used in the process.[15] Unwilling to take this big step and enact the FRAC Act without more information, Congress has charged the EPA to draft a report to determine fracking’s true impact.[16] The EPA’s report is anticipated, and will be open for public comment, in 2014.[17] The report may provide the information necessary to incentivize Congress to pass the FRAC Act, or similar legislation, empowering the EPA to promulgate rules in the area. With the prospect of federal regulation comes the promise of reconciling the inevitable tension between fracking and sustainability.[18] Perhaps we can have our cake and eat it too.

[1] See J.P., Fracking: Fire Water, Economist (Jun. 25, 2013, 6:14 PM), http://www.economist.com/node/21580005.
[2] See Robert Rapier, Both Sides Mislead When It Comes to Fracking, Wall St. J. (Nov. 14, 2013, 8:04 AM), http://blogs.wsj.com/experts/2013/11/14/both-sides-mislead-when-it-comes-to-fracking/; see also T.W., The Economist Explains: How safe is fracking?, Economist (Aug. 19, 2013), http://www.economist.com/node/21583880; see also J.P., supra.
[3] See Rapier, supra note 2.
[4] See The Center for Science and Democracy, Union of Concerned Scientists, Toward an Evidence-Based Fracking Debate, Science, Democracy, and Community Right to Know in Unconventional Oil and Gas Development (2013), http://www.ucsusa.org/center-for-science-and-democracy/toward-an-evidence-based-fracking-debate.html; Gretchen Goldman, Americans Deserve a Better Fracking Debate, Livescience (Oct. 7, 2013, 2:18 PM), http://www.livescience.com/40224-we-deserve-a-better-fracking-debate.html.
[5] EPA’s Study of Hydraulic Fracturing and Its Potential Impact on Drinking Water Resources, U. S. Envtl. Prot. Agency (last visited Nov. 1, 2013), http://www2.epa.gov/hfstudy.
[6] See Questions and Answers about EPA’s Hydraulic Fracturing Study, U. S. Envtl. Prot. Agency (Aug. 21, 2013), http://www2.epa.gov/hfstudy/questions-and-answers-about-epas-hydraulic-fracturing-study#36.
[7] Kate Gordon, The Ignorance About Fracking Is Breathtaking, Wall St. J. (Nov. 14, 2013, 11:36 AM), http://blogs.wsj.com/experts/2013/11/14/the-ignorance-about-fracking-is-breathtaking/.
[8] See id.
[9] See Rebecca Jo Reser & David T. Riter, State and Federal Legislation and Regulation of Hydraulic Fracturing, 57 The Advoc.: Energy L. Litig., Winter 2011, at 31.
[10] See id.
[11] Editorial, The Halliburton Loophole, N.Y. Times, Nov. 2, 2009, at A28, available at http://www.nytimes.com/2009/11/03/opinion/03tue3.html.
[12] See supra note 9.
[13] See id.
[14] Energy Solutions Forum, FRAC Act Reintroduced as Bipartisan Bill (May 17, 2013, 12:00 PM), http://breakingenergy.com/2013/05/17/frac-act-reintroduced-as-bipartisan-bill/.
[15] See supra note 11.
[16] See Mary Tiemann & Adam Vann, Cong. Research Serv., R41760, Hydraulic Fracturing and Safe Drinking Water Act Regulatory Issues 1 (2013), available at http://www.fas.org/sgp/crs/misc/R41760.pdf.
[17] EPA’s Study of Hydraulic Fracturing and Its Potential Impact on Drinking Water Resources, U. S. Envtl. Prot. Agency (Nov. 1, 2013), http://www2.epa.gov/hfstudy.
[18] See generally Schumpeter, The Father of Fracking, The Economist (Aug. 3, 2013), available at http://www.economist.com/news/business/21582482-few-businesspeople-have-done-much-change-world-george-mitchell-father. 

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