Can We Get Some Help Over Here? Federal Regulators Continue To Struggle To Police Fracking

Fracking is about as household of a name as any energy development practice is likely to become, and yet, the EPA, BLM and DOI have found themselves unable keep up with the booming oil and gas industry.  According to a recent report from the Government Accountability Office (GAO), federal regulators continue to face significant hurdles in regulating the use of hydraulic fracturing in energy development.  The report, Unconventional Oil and Gas Development: Key Environmental and Public Health Requirements, examined applicable regulations, but more importantly the challenges faced by agencies tasked with regulating fracking operations.[1]

Fracking sites on federal lands are required to comply with a range of federal and state laws including the Resource Conservation and Recovery Act (RCRA) and the Clean Water Act (CWA). However, one of the major challenges reported by the EPA is the continued exemption of oil and gas wells from relevant regulations.  For example, exploration and production waste is exempt from RCRA’s hazardous waste regulations and storm water discharge regulations under the CWA generally don’t apply to oil and gas development.[2]

Beyond the exemption and exclusions carved out for the industry, regulators face challenges that simply have never been addressed.  The report found that limited information, the dispersed nature of the industry, and rapid development all contribute to prevent successful and effective regulation.  The EPA reported difficulties in prosecuting water contamination cases because often they have neither baseline water quality measurements nor knowledge of what chemicals were used by the companies responsible, due to the lack of disclosure requirements.  Beyond basic regulatory challenges, the BLM is also hindered by the difficulty in retaining employees when the private sector is able to offer more money to qualified agency staff.

Regulatory disparities between states and the unwillingness of the federal government to take the lead role on fracking regulation further complicate matters.  In March of 2011 President Obama’s administration released its Blueprint for a Secure Energy Future.  The policy paper reiterated the President’s position that ultimate regulation of fracking falls to state governments and that the federal government’s main role through the EPA and DOE would be to provide technical assistance to state agencies and regulators.[3]

All of this is not to say that no steps have been taken on the federal level, but many issues remain to be addressed.  For example, on May 4, 2012 the BLM issued a proposed rule that would update BLM fracking regulations for the first time since 1988.[4] The proposed rule would require the disclosure of fluids used in fracking operations on federal and Indian lands will allow for regulators to trace ground water contamination back to specific sites.[5] However, companies will not be required to disclose until after operations have ended, thus preventing the EPA from obtaining baseline water quality measures or from taking measures to manage spills and leaks during operations.  The rule also does not address the other issues raised by the GAO report, and given that it will be the first new rule in over thirty years, the prospects of federal agencies catching up to and fully and effectively policing oil and gas fracking seem slim.

Jeff Jay is a General Member on MJEAL.  He can be reached at jefjay@umich.edu.


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[1] U.S. Gov’t Accountability Office, GAO-12-874, Unconventional Oil and Gas Development: Key Environmental and Public Health Requirements (2012).

[2] Id

[3] Blueprint for a Secure Energy Future (Mar. 31, 2011), http://www.whitehouse.gov/sites/default /files/blueprint_secure_energy_future.pdf

[4] Oil and Gas; Well Stimulation, Including Hydraulic Fracturing, on Federal and Indian Lands, 77 Fed. Reg. 27691 (proposed May 11, 2012) (to be codified at 43 C.F.R. pt. 3160).

[5] Id.