When I first wrote about the Bureau of Land Management’s draft of its new fracking regulations in May 2012, I chalked the Obama administration’s pro-industry, jobs-jobs-jobs spin on the proposal up to election-year politicking. After all, beneath the Orwellian PR and despite not going as far as environmentalists had hoped, many parts of it seemed at the very least adequate to protect public health and the environment from the worst potential effects of oil and gas development. Today, 90 percent of wells on federal lands are hydraulically fractured -- wherein pressurized water laced with chemicals and sand is used to break open oil and gas bearing rock formations and release their bounty to the surface. The massively expanded use of the technology to access shale gas and oil in recent years has raised concerns about water and air contamination, among other issues. “These rules create consistent minimum requirements for chemical disclosure, wellbore integrity, and waste disposal, among other aspects of the (hydraulic fracturing) process," Earthworks' Oil and Gas Accountability Project Senior Staff Attorney Bruce Baizel said at the time.
But 177,000 public comments and a little over a year later, the Interior Department has released a significantly weakened version of those rules for yet another round of public comment. Apparently, last year’s spin revealed more about the administration’s real priorities than I had originally thought. Some highlights on how key aspects of the rules have changed:
-In the last draft of the rules, the BLM required companies to test the integrity and strength of each well bore to ensure they don’t leak fracking chemicals and hydrocarbons -- and submit those results to the agency for review -- before the well could be fracked. Under the new rules, companies can avoid obtaining or submitting this information for wells if they are similar to one that has been shown to have a strong enough cement job. Worse, companies don’t have to submit this information until AFTER fracking has occurred. Seems like a poor policing strategy for what has proved to be a major source of problems: Inadequate or incomplete well casings and cement jobs have been implicated in everything from gas and toxic chemicals bubbling up in local streams, to houses filling with methane and exploding.
Even state regulators and industry reps usually finger this as a more major issue than the fracking process itself, suggesting the need for really bomber regulation. "In almost all those cases where there was any indication that there were problems, it's been tagged back to poor casing (the steel liner inside a well) and cementing," Mike Paque, director of an Oklahoma-based group composed of state oil and gas regulators called the Ground Water Protection Council, told ProPublica and High Country News in a 2011 cover story.
-The new rules no longer cover some types of well stimulation techniques that may pose their own environmental problems, including acidizing, wherein acids are injected into a well to dissolve pesky sediments and mud solids that get in the way of hydrocarbon production.
-The new rule still requires companies to disclose the chemical composition of their fracking fluids after the well is fracked (again, wouldn’t you want to know that info BEFORE?). Now, though, it allows them to do it through FracFocus.org, an industry-funded website that even the Obama administration admits is not all that “facile” to search or compile data from. A Harvard study recently slammed the site as inappropriate for regulators to use. Moreover, companies could keep some chemical compositions to themselves as trade secrets, submitting only an affidavit claiming they are entitled by law to withhold it from the public. “If adopted, these disclosure rules would be much weaker than the rules in industry-friendly states like Wyoming and Pennsylvania,” writes Matthew McFeeley of the Natural Resources Defense Council. “Both states at least make companies submit trade secret information so that the validity of companies’ claims that information is proprietary can be evaluated.” The original federal proposal was, in fact, based on Wyoming’s rule, according to Environment & Energy Daily.
-Many environmental groups have also slammed the federal rules’ new deference to regulations drafted by states and tribes, allowing both to seek variances if their own are as or more stringent than federal standards. Given that this is similar to how parts of some bedrock national environmental laws (e.g., the Clean Water Act) work, though, it’s unclear that this is a bad thing, provided federal standards are strict enough.
Perhaps it should come as no surprise that the rules are more industry-friendly than before. According to E&E, Deputy Assistant to the President for Energy and Climate Change Heather Zichal met more than 20 times in 2012 with industry groups and company executives lobbying on the proposed rule, but only four times with environmental groups.
And yet despite this, and a massive reduction in how much it will cost for oil and gas companies to comply, they’ve continued to gripe that that rules are unnecessary, and undermine state and tribal regulatory efforts. “(The Department of Interior) still has not justified the rule from an economic or scientific point of view,” Kathleen Sgamma, vice president of government affairs for an association of oil companies called the Western Energy Alliance, told The New York Times.
In reality, though, one thing the administration has done a great job of is justifying the rules. As Interior Secretary Sally Jewell pointed out at a press conference, they haven’t been updated in 30 years, and thus date back “to the Sony Walkman and the Atari video game.” Since that time, hydraulic fracturing and horizontal drilling techniques have changed markedly, and been applied across a much wider swath of the country. Meanwhile, the federal government is bound by many laws to act as a steward of the public lands that belong to all of us, the rules note, while states and tribes are not.
On the flip side, if the administration is going to play the stewardship card, it could do a lot better than this.
Sarah Gilman is associate editor of High Country News.
Photo courtesy of the author.