Emily Waterhouse
3/2/11
Hydraulic Fracturing: A Legislative History
Overview
As traditional fossil fuel sources diminish worldwide, unconventional methods have been increasingly turned to in order to meet our nation’s energy needs. Hydraulic fracturing is the worst of these methods. Aside from continuing our dependence on nonrenewable sources of fuel, directing our attention away from renewable technologies, and contributing to global warming, the long-term environmental and health affects of “fracking” are relatively unknown.Congressional leaders and drilling companies claim that fracking will decrease our dependency on foreign oil, but what happens when we run out? And how much damage will we allow until then? Hydraulic fracturing is merely a band-aid for our energy problems. Worst of all, it is hardly regulated.
Lack of regulation in hydraulic fracturing extends back to hydraulic mining during the California Gold Rush. Similarly to Unfortunately the United States did not learn its lesson. The immediate affects of erosion and flooding were ignored while the long-term affects of mercury contamination were not investigated. Thus, a precedent of proof over precaution and economic over societal interest was established long before hydraulic fracturing was invented.
Starting in the 1940’s, oil refineries and chemical companies begin to inject liquid wastes into deep wells without government oversight. Cases of groundwater contamination in the 1960’s and 1970’s spurred Congress to pass the Safe Drinking Water Act in 1974, giving the EPA the authority to protect underground drinking water supplies by regulating underground injection. Depending on the relative strength of the EPA and Democrats to natural gas interests and Republicans, the SDWA has been amended to either reinforce or deregulate hydraulic fracturing.
The following review of legislation shows a recent trend towards the deregulation of hydraulic fracturing at the federal level under Republican leadership. At the state level, however, bans in both Pennsylvania and New York have been passed, with other states and cities nationwide considering their own bans. This is no cause for celebration. Until federal action is taken to reregulate the fracking industry as a whole, no state is safe from potential long-term, fugitive affects. Congress should rise above partisanship and acknowledge that precaution should be the guiding principle in matters of health and environmental safety.
Major Federal Legislation (1974 – present)
93rd Congress
P.L. 93-523:“Safe Drinking Water Act of 1974”
This act amended the Public Health Services Act, requiring the public provision of safe drinking water. All water with the potential of drinking use is protected under this act, including both above ground and underground sources. Specifically, this act:
-Allows the EPA to establish minimum standards for tap water.
-Requires all owners and operators of public waterways to comply with EPA standards.
Although this act set up impressive groundwork for future regulation, it did not cover every eventuality. Most notably, hydraulic fracturing was not yet considered for regulation.
99th Congress
S.124: “SafeDrinkingWaterActAmendmentsof1986”
Under Democrat House and Senate majorities, this bill greatly increased the authority of the EPA over drinking water. Although it did not strictly target hydraulic fracturing, it expanded federal oversight of well injection, targeted aquifers for protection, and greatly improved the chemical quality of water. Specifically, this bill:
-Requires the EPA to establish maximum contaminant level goals for over 100 different contaminants, and to publish a new list of contaminants every three years.
-Makes certain water systems using groundwater apply disinfectant treatment.
-Directs the EPA to monitor public water systems for contaminants at least every five years.
-Requires the EPA to monitor wells injecting waste below drinking water sources.
Clearly, Congress was beginning to see the health and environmental benefits of federal regulation of drinking water. They were also moving towards making a link between groundwater contamination and well injection.
104th Congress
H.R.226: “Safe Drinking Water Act Amendments of 1996”
Republican majorities in both the Senate and the House undercut most federal regulatory efforts with this act. Specifically, this bill:
-Required the EPA to conduct a cost-benefit analysis with every new regulation that would weigh the benefits of strict drinking water standards to the cost to industry and of pollution control.
-Strengthened regulation of microbial and disinfectant contaminants.
-Increased public knowledge of water quality by requiring communities to public Consumer Confidence Reports.
-Established the Drinking Water State Revolving Fund as a way of allowing States to make necessary infrastructure and management improvements.
This bill successfully shifted authority away from the EPA to states and communities. Outside of the EPA’s direct control, water quality could now depend on the incomplete findings of underfunded and mismanaged local water authorities. Furthermore, past and future EPA listed contaminants became subject to more lenient review under cost-benefit analysis. Only non-industrial contaminants were specifically targeted. And even though the public was given more information, the information provided could now paint a much happier picture.
106th Congress
S.724: “A bill to amend the Safe Drinking Water Act to clarify that underground injection does not include certain activities, and for other purposes.”
Introduced by Senator James Inhofe (R-OK), this bill sought to:
-“exclude from the definition of ‘underground injection’ the underground injection of fluids or propping agents pursuant to hydraulic fracturing operations for purposes of reservoir stimulation related to oil or gas production activities.”
The basic goal of this legislation was to make hydraulic fracturing exempt from regulation by the EPA under the SDWA. Coincidentally, some of the same oil and gas companies that would have most benefitted from this legislation are Senator Inhofe’s all-time top campaign contributors, Koch Industries and Murray Energy. A Democratic Congress was fortunately able to stop this bill from leaving the Senate Committee on Environment and Public Works.
107th Congress
S.1374: “Hydraulic Fracturing Act”
This bill required additional study on the affects of contaminants specifically linked to hydraulic fracturing. Specifically, this bill:
-Gives the EPA 24 months to complete a study on the known and potential effects of hydraulic fracturing on underwater drinking sources nationwide.
-Requires the National Academy of Sciences to review and make recommendations on the EPA’s report no less than nine months after receiving it.
-Having received the newest report, the EPA must determine whether or not regulation is necessary within the next six months.
-If regulation is deemed unnecessary, neither future nor existing regulations need be carried out.
Finally steps were being taken to replace EPA authority and emphasize science over industry. If the time restraints had been less limiting and a moratorium on fracking had been introduced, this would have been the perfect bill.
109th Congress
“Energy Policy Act of 2005”
This act adopted the definition change from S.724, thus exempting hydraulic fracturing from federal regulation. Neither research into the affects of hydraulic fracturing nor a list of chemicals used are now required from fracking companies.
111th Congress
H.R.2766: “Fracturing Responsibility and Awareness of Chemicals Act of 2009”
This piece of legislation would repeal the exemption for hydraulic fracturing under the Energy Policy Act of 2005. Specifically, this bill:
-Redefines ‘underground injection to include“the underground injection of fluids or propping agents pursuant tohydraulicfracturingoperations related to oil and gas production activities.”
-Requires hydraulic fracturing companies to disclose the chemicals they use in cases of emergency or first-aid treatment.
Although this legislation does not go nearly far enough, it is a valuable safety precaution that has been missing for too long. Hopefully, if this bill is reintroduced and passes, a new trend of chemical disclosure will be created. This way, public safety could be accounted for while the EPA is still inconclusive about the long-term hazards of hydraulic fracturing.
Current State Legislation
Pennsylvania General Assembly
H.R.609
This bill seeks to keep regulatory control in the hands of the state due to a lack of regulation at the federal level.
New York State Assembly
A.10490/S.7592
This bill calls for a moratorium on hydraulic fracturing until an independent state study can be conducted. If the study concludes that hydraulic fracturing poses too much of an environmental and health risk, a statewide ban will be enacted.
Sources:
U.S. Senate. 93rd Congress. 1st Session (1974). “P.L. 93-523 Safe Drinking Water Act of 1974.” EPA. (EPA Summary of the Safe Drinking Water Act).
U.S. Senate. 99th Congress. 2nd Session (1986). “S.124 Safe Drinking Water Act Amendments of 1986.” The Library of Congress. (Thomas Bill Summary S.124).
U.S. Senate. 106th Congress. 2nd Session (1999). “S.724 A bill to amend the Safe Drinking Water Act to clarify that underground injection does not include certain activities, and for other purposes.” The Library of Congress. (Thomas Bill Summary S.724).
U.S. Senate. 107th Congress. 1st Session (2001). “S.1374Hydraulic Fracturing Act.”The Library of Congress. (Thomas Bill Summary S.1374).
U.S. House of Representatives. 109th Congress. 2nd Session (2005). “H.R.6.ENR Energy Policy Act of 2005.”The Library of Congress. (Thomas Bill Summary H.R.6ENR).
U.S. House of Representatives. 111th Congress. 1st Session (2009). “H.R.2766 IH Fracturing Responsibility and Awareness of Chemicals Act of 2009.” The Library of Congress. (Thomas Bill Summary H.R.2766 IH).
Pennsylvania General Assembly. “H.R.609.” Pennsylvania State Government.(Summary H.R.609).
New York General Assembly “A.10490/S.7592.” New York State Government.