The Obama Administration has proposed new regulations for hydraulic fracturing on 756 million acres of public and tribal lands. The rules were written by the drilling industry and will be streamlined into effect by a new intergovernmental task force, established by the president, to promote fracking — a practice that has been linked to water poisoning, air pollution, methane emissions and, most recently, earthquakes. Environmentalists, many of whom are highly skeptical that fracking can even be regulated, hope to use a brief window for citizen participation in the rule approval process to leverage the growing anti-fracking movement.
The Interior Department’s Bureau of Land Management (BLM) — the government agency that manages the public lands in question — follows a dual and often conflicting mandate. Although it is charged with conserving lands for recreation and biological diversity, it must also ensure the commercial development of natural resources. The bureau tends to focus heavily on the latter part of its mission, and it has auctioned off public land for resource extraction, including oil and gas development, while following drilling regulations that were last updated in 1988, before fracking became a common practice.
“Under the old regulations, an operator would have to disclose non-routine techniques,” said BLM spokesperson Beverly Winston. “Now, hydraulic fracturing is routine, so nobody discloses it. It’s my understanding that probably 90 percent of wells on public lands use hydraulic fracturing.”
The newly proposed regulations will provide superficial environmental safeguards against industry excesses while shielding drillers and the government from the legal challenges that have begun cropping up. In April, for instance, a California judge ruled in a lawsuit brought by the Sierra Club and the Center for Biological Diversity that the BLM had failed to take a “hard look” at the impact of fracking on federal land in the state and halted the issuance of fracking leases for the Monterey shale region until an assessment of its environmental impact is completed. The proposed laws, however, will give the BLM legal cover to keep the frack leases flowing.
Former Interior Secretary Ken Salazar, who helped draft the laws, resigned from his post in January to take a job with WilmerHale. The corporate law firm’s website boasts “our lawyers strive to reduce liability and transform environmental compliance obligations into opportunities.”
Those wondering what opportunity looks like to drillers in regions originally set aside for conservation need only visit the Allegheny National Forest in Western Pennsylvania, a state that has opened its arms to drillers in recent years. Nearly 4,000 oil and gas wells were drilled in the Allegheny between 2005 and 2011.
“Where there were once remote areas of the forest there is now oil and gas infrastructure,” said Ryan Talbott of the Allegheny Defense Project. “If you are a recreationist going to go out and go hiking, camping, fishing, what might have been your favorite area before is now a sea of roads and pipelines and well sites.”
In 2009, under pressure from Allegheny Defense and other environmental groups, the Forest Service sought to monitor the drilling, implement environmental safeguards and provide a measure of planning to the spaghetti network of drill sites. But 93 percent of the mineral rights in the state are privately held and the Forest Service, in a case currently under review by the 3rd Circuit Court of Appeals, was sued by the gas companies who claim their property rights were violated.
Although not yet to the extent witnessed in Allegheny, fracking has commenced in other parts of the country where the BLM holds mineral rights, particularly out West. “We’re drilling all over the place,” President Obama told an audience in New Mexico last year, announcing plans to open millions more acres to the oil and gas industry. In the way of protection, however, Obama’s new rules follow the Pennsylvania model, barely scratching the surface when it comes to monitoring what occurs below.
White House visitor logs show the president’s top adviser on energy and climate, Heather Zichal, met with the American Petroleum Institute, the Independent Petroleum Association of America and other industry groups 20 times last year in the run up to the rules proposal. They were further honed to industry specifications in a series of meetings between the oil and gas lobby and the White House Office of Budget Management, and are based on a piece of model legislation authored by Exxon for the American Legislative Exchange Council.
Under the rules, drillers will report chemicals used in fracking to an industry run site, FracFocus.org, already used in Pennsylvania and other states. The disclosures won’t need to be made until after a well is fracked. Nor will they be vetted for accuracy. Certain chemicals won’t even be disclosed at all, since they constitute alleged trade secrets. Furthermore, the rules would sanction drilling in close proximity to homes and schools, as well as allow wastewater — the toxic byproduct the of fracking — to be stored in open, outdoor pits.
Meanwhile, the rules weaken a requirement meant to ensure the structural integrity of drilling wells, which can leak methane and other chemical contaminants if cracked. Instead of having to submit documentation for each well, companies will only need report one of all their wells within a geological area.
“Using a single well as representative of all wells completely ignores the likelihood that one in 12 wells have some sort of well casing failure,” said Hugh MacMillan, a senior researcher with Food and Water Watch. “Six to eight percent of well casings fail within the first year, with higher percentages over time.”
MacMillan also expressed fears that the proposed regulations won’t cover a newer technique, known as acidizing, which involves pumping acid into the ground to dissolve rock formations and create pathways in shale for oil to flow out.
Underlying all these concerns is the fear held by many environmentalists that, no matter how heavily the industry is regulated, fracking is inherently toxic. “Trying to regulate fracking is like trying to build a safe cigarette,” said scientist and activist Sandra Steingraber. “You can put filters on cigarettes. You can have low tar cigarettes. But the answer to avoiding cancer from smoking is not to smoke.”
The issue of whether to push for more stringent laws that will mitigate against the impact of drilling or to advocate for the abolition of the practice has caused some considerable fissures in the environmental movement. The Natural Resources Defense Council worked with the drilling industry to write legislation governing fracking that was approved by lawmakers in Illinois last month, while those pushing for an outright ban in the state launched a three day sit-in in the governor’s office against the measure.
Steingraber favors a ban and was ejected from the Illinois statehouse for disrupting legislators following the approval of the fracking bill. Nevertheless, she’s spearheading an initiative to increase the already unprecedented number of comments the BLM has received during the public input period on the Obama-Exxon fracking rules. When the BLM first opened up the proposed laws for public review this spring they were inundated with 177,000 submissions, prompting the bureau to extend the submission deadline to August 23. Steingraber is working to ensure that public comments keep flowing and that this window of public participation furthers the overall anti-fracking movement.
In New York last winter, as the state’s moratorium on fracking expired and its Department of Environmental Conservation (DEC) began preparing to file rules that would allow for drilling, she jumpstarted a similar effort. Through a website she established, ThirtyDaysOfFrackingRegs.com, Steingraber — a molecular biologist with a background in public health — broke down piece-by-piece the proposed laws, explaining their environmental consequences and providing a template for critics to submit their own comments. Ultimately, Steingraber said the site was responsible for 25,000 submissions to the DEC — more than 10 percent of the 200,000-plus mostly-critical comments the department received. These objections ended up being an important compliment to the hundreds of protests that took place against fracking statewide. The DEC eventually let the deadline to file rules lapse, which has delayed the prospect of fracking in New York for at least a year.
It was a victory even fracking’s most committed opponents thought slim at the time. The gas industry had spent millions of dollars around the state to ensure it could make good on drilling leases it had already purchased. A Freedom of Information Act request by the Environmental Working Group revealed that, in the run-up to the deadline, New York’s DEC deputy commissioner Steven Russo had already sent potential regulations to drilling lobbyists for their approval.
Despite their success in New York, Steingraber and other anti-fracking activists are fighting an uphill battle at the federal level. In a speech at Georgetown University last month, the president touted “clean burning natural gas” as part of an “all-of-the-above” energy strategy and vowed to increase drilling in order to tackle the climate crisis and foster energy independence.
“The administration has a stated goal to increase American energy production,” said BLM spokesperson Beverly Winston. “A lot of that’s going to come from public land, whether that’s renewable energy or oil and gas.”
With the public comment period serving essentially as window dressing for an otherwise backdoor process, Steingraber said she isn’t looking at the submission of comments to the BLM as an end in and of itself but rather as a “gauntlet” thrown down. She also called them “a meter of citizen opposition” that activists can point to as they build on-the-ground mobilizations.
The struggle will likely come to a head on August 22, the eve of the comment deadline, when environmental groups in the coalition Americans Against Fracking will stream into Washington, D.C., to deliver written comments to the BLM. What happens next will be as much a test of the democratic process as the strength of this growing movement.
“The very bedrock of this nation,” says Steingraber “is not for fracturing.”