The BLM’s Proposed Fracking Regulation

Posted: Oct 23, 2017

The debate has gone on for centuries. It’s the classic battle between environmental protection and economic production. Now, in the wake of new innovations and technology in the field of oil and gas extraction, it has a new focal point: Hydraulic fracturing, otherwise known as fracking.

Recently, fracking has become a hot political issue. There has been an increase in viability due to recent technological developments, as well an increase in public awareness thanks to media coverage and independent documentaries focused on the issue. As a response to public demand for action, the Bureau of Land Management (BLM) has proposed a rule regulating fracking on the federal level.

Both the support and opposition for fracking are strong. Opponents of fracking claim that the process could contaminate our ground water, and that there are already a multitude of instances where it has done so. Advocates of the oil and gas extraction method claim that the fracking process occurs too far under groundwater to contaminate it. They also claim that federal regulations will stifle economic growth and job opportunities, and to discontinue or over-regulate fracking would be to continue our dependence on foreign oil. In the end, as with most political debates, both tend to exaggerate the issue. The answer is likely somewhere in the middle.

What is fracking?

Fracking is a well stimulation technique used by oil and natural gas companies to increase the volumes of oil and natural gas that can be extracted from wells. The process involves the injection of fluid under high pressure to create or enlarge fractures in the reservoir rocks. The fluid that is used in hydraulic fracturing is usually accompanied by proppants, such as particles of sand, which are carried into the newly fractured rock and help keep the fractures open once the pressure from the fracturing operation is released. In addition to the water and sand (which together typically make up 98 to 99 percent of the materials pumped into a well during a fracturing operation), chemical additives are also frequently used. The exact formulation of the chemicals used varies depending on the rock formations, the well, and the requirements of the operator. (For a more in depth analysis of the fracking process and its current regulatory status, see BLM proposes rule regulating hydraulic fracturing on federal and Indian lands)

The BLM’s Proposed Rule

The BLM recently proposed national regulations that will require: (1) The public disclosure of chemicals used in hydraulic fracturing operations on Federal lands; (2) confirmation that wells used in fracturing operations meet appropriate construction standards; and (3) a requirement that operators put in place appropriate plans for managing flowback waters from fracturing operations. The biggest point of debate regarding the proposed rule is the requirement of public disclosure of the chemicals that are used in the fracking process.

On one hand, industry supporters claim that the proposed rule is unnecessarily stringent. They claim that if it is implemented it will be costly to states and duplicative of state regulations. They also claim that there is a lack of evidence that hydraulic fracturing presents a substantial risk of endangerment of ground water, and therefore no need for the disclosure of chemicals used in the process. Finally, what I see as their strongest argument is that the chemicals they use should be protected by trade secret laws, and not made available to the public.

On the other hand, those opposed to fracking claim that the proposed rule is too lenient. While most believe that the disclosure of chemicals used in the process is a positive thing, many feel the timing of disclosure would be too little too late. They feel that there is little benefit to learning what chemicals are potentially contaminating the environment after the fact. Also, the fact that there would be no regulation for which chemicals can be used is an issue; just disclosing the chemicals doesn’t help if there aren’t regulations for which chemicals are allowed.

Inconclusive Science:

The toughest part about this issue is that there seems to be inconclusive science regarding fracking. There have been documentaries based on reported cases of water contamination caused by fracking, sites dedicated to debunking them, and sites dedicated to debunking the debunking. An article by the New York Times article attempted to sort through the mess.  Both sides appear to be exaggerating to advocate for their beliefs, making it hard to decide what to believe.

In the end, the research on fracking is inconclusive at best. Fortunately the EPA is doing an independent study on fracking to be completed by the end of this year. Hopefully this will do something to resolve the science behind the issue.

Until then, the rule proposed by the BLM seems to be very shortsighted. When it comes to our environment, where problems could be irreversible, we should not wait for there to be evidence of contamination from fracking chemicals before they are regulated. Companies should have to prove what they’re doing is safe, not wait until there is an issue that proves it isn’t. 

The proposed BLM rule also does more to protect the industry than it does to protect the environment. Public disclosures of chemicals used in the fracking process are not required until after the fracking has been completed. Even then, it is not clear that the BLM will actually do anything once the chemicals are disclosed. The regulation states that “This information is needed in order for the BLM to maintain a record of the stimulation operation as performed.” It is hard to tell if the BLM intends to regulate which chemicals are being used, or whether they will just record them and put them in a file, never to be used. From the wording of the regulation, it seems like the latter.

There was also no mention in the BLM’s proposal of developing any sort of standards or regulations for which chemicals can be used. For many of the requirements the BLM says they need the information to do very general things such as "prevent unnecessary or undue degradation of the public lands" or "determine the impacts associated with operations and the need for any mitigation."  However, for the chemical information requirement they only say they need it to "maintain a record of the stimulation operation as performed," which I take to mean they may not do anything about it other than post it for the public to see.

Conclusion:

Personally, I believe that the BLM should put a moratorium on fracking until the EPA has completed its study at the end of the year, and there is a better understanding of the effects of fracking on the environment. Or, better yet, a less politically volatile group such as the USGS or the National Academy of Sciences should create a similar study that would be more politically unassailable than the study by the EPA.

However, understanding that in our current political arena this is not likely to happen, the next best thing would be for the BLM to change the proposed rule to require chemicals used in the process to be disclosed to the public before fracking occurs.

Even if chemicals are disclosed, however, there are still a host of other risks involved with fracking. The Pacific Institute, in a report called “Hydraulic Fracturing and Water Resources: Separating the Frack from Fiction,” listed water withdraws, groundwater contamination from the drilling process, wastewater management, truck traffic, surface spills, and storm water management as the top concerns related to fracking. Yet chemical disclosure seems to have gained the most political and media attention, and public disclosure of chemicals would be a good start. This would at least give the public the chance to do their own research on the chemicals used and give them the chance to test for them in their water supply.

If a rule like this one is implemented the oil and gas industry will likely have to disclose some trade secrets by sacrificing proprietary chemical combinations used in the fracking process. Yet there are many ways to find some compromise, such as requiring companies to list the chemicals in an EIS to the company, without making them publicly available.

No matter how the rule is structured, companies need to be held in check for which chemicals they are using. They either need to make the chemicals used in the fracking process publicly available before fracking occurs, or the BLM needs to develop standards for which chemicals can be used and require disclosure to make sure the standards are being met.

Either way the oil and gas companies are the ones benefiting from these valuable resources on public land. The right of the public greatly outweighs this burden on the industry because BLM land is all of our land, and we have the right to know and choose what is being pumped into it.

~TK Keith

 

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