States Outpacing Feds in Safety Regs for Fracking

by Kathleen Sgamma, Vice President of Government and Public Affairs on April 16, 2015 - 2:13pm

Hydraulic Fracturing in Utah

The Department of the Interior recently introduced a rule to regulate hydraulic fracturing on federal lands to much fanfare. Stating the need to update thirty year old regulations, Interior Secretary Jewell characterized Interior’s action as taking the lead and giving the states an example to follow.

An example? Only in the logic of leading from behind. 

States have not been waiting for the federal government. They have long acted to strengthen their regulations and ensure that fracking is done safely while protecting the environment. 

Colorado has completed multiple rounds of rulemaking over more than a decade, with increasing intensity in recent years. Wyoming is in a race to the top with Colorado in claiming the mantle of the state with the most stringent regulations. North Dakota, Texas, and in fact all western states with sizeable oil and natural gas development had updated their rules well before the federal government jumped in. In fact, 99.97% of the permits to drill approved last year by the Interior Department are in states with recently updated fracking regulations, with just one well in a state currently updating its rules.

The regulations aren’t simply about disclosure of the chemicals used in frack fluids, which is noncontroversial and already being done voluntarily or per state requirements. The real key to the safety of fracking is that the well is constructed properly, fluids are handled properly, and operational risks are minimized. States have been regulating these operations for many years, but have strengthened them recently as activity has increased and technology has improved.

Despite the characterization from the federal government, there is simply no regulatory gap. States have an exemplary safety record, as there is not one example of the fracking process resulting in the contamination of underground drinking water. But don’t take my word for it; all Interior and Energy secretaries and EPA administrators under President Obama have vouched for the safety of fracking.

Industry agrees that strong regulations are proper and necessary to ensure operations protect public health, safety and the environment. Improved practices and strong regulation ensure that environmental impacts are minimal and the risk of accident is small. When we do make a mistake, we are held accountable under the law and must clean up any spills and take other corrective actions.

So if industry is supportive of sensible regulation, why are Western Energy Alliance and IPAA challenging the new Interior Department regulations in court? Because these regulations are redundant with state regulations, and will further discourage responsible development on federal lands. The Interior Department cannot point to a single incident on public lands to justify the new red tape nor risk that isn’t already handled by the states.

Just as the federal government has been way behind state regulators, its inefficiencies have already discouraged development on federal lands. It takes years longer for federal project approval than on identical adjacent private and state lands. It is well documented production lags on federal lands even as it is booming across the country.

Furthermore, the Interior Department does not have the staff and resources to properly implement this new rule. Environmental groups often criticize Interior for not performing enough oil and natural gas oversight. States regularly do a better job of inspecting wells at a higher frequency than the federal government. And rather than the four years it look the Interior Department to finalize this rule, states are constantly updating regulations to address issues and stay current with technology.

So why overburden an agency that already struggles to meet its current obligations? Why not work in partnership with the states?

Yes, state regulations don’t match these new federal requirements exactly, but they achieve the same goals. States tailor their rules for the geology, topography, infrastructure, and other circumstances unique to them. The new federal regulation on the other hand adopts a one-size-fits-all mentality that will take away state flexibility to better protect the environment based on actual conditions on the ground. There are examples where innovations that reduce water use, truck trips, and surface impact cannot be done on public lands because federal requirements are too rigid. These new rules will increase that inflexibility and discourage innovation.

The Interior Department has issued vague promises that it will allow certain state rules to prevail, but there is no assurance.  Viewing state regulation through the lens of copying federal requirements rather than achieving environmental goals is not true partnership. For that reason, both Wyoming and North Dakota are also suing the government over these rules. Industry stands with the states and their proven record of success.