Finalized Behind Closed Doors, Illinois Fracking Regs Face Further Challenge

'I think in many ways the battle is about to get a lot worse,' says one environmental leader.

Anti-fracking protest in March 2014 in Chicago. Environmentalists spent nearly two years trying to shape fracking rules in Illinois, advocating the inclusion of strict environmental and health-safety measures. They were left out of the final negotiations. "The fight is far from over," activist Tabitha Tripp told InsideClimate News. Credit: Southern Illinoisians Against Fracturing Our Environment (SAFE)

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The fight against hydraulic fracturing in Illinois will go on even after a panel of lawmakers approved regulations last week that could jumpstart the controversial drilling practice in the state, environmental activists said.

The state’s action is expected to accelerate development of one of the last major, largely untapped American fossil fuel reserves, the New Albany Shale. According to the U.S. Geological Survey, the underground formation may hold as much as 3.79 trillion cubic feet of recoverable natural gas and 142 million barrels of oil. Until this point, fracking in the state has been allowed, but slow to develop. The industry has reportedly been hesitant to commit to drilling without knowing the regulations they face. Meanwhile, the state Department of Natural Resources has held off approving permits until the final draft of its regulations were accepted.

Environmentalists spent nearly two years trying to shape the rules, advocating the inclusion of strict environmental and health-safety measures. But the groups—both mainstream organizations that helped developed earlier versions of the regulations and grassroots ones that fought to strengthen them—were left out of final, closed-door negotiations between the Illinois Department of Natural Resources and the oil and gas industry.

Now the fracking opponents vow to carry on the fight at the local level, attack mistakes in rulemaking and watch the department’s implementation of the rules closely.

“I think in many ways the battle is about to get a lot worse,” said Jen Walling, executive director of the Illinois Environmental Council, a statewide group that promotes environmental laws and policies. “It is good that we don’t have completely unregulated fracking anymore, but we are going to continually push for stronger rules.”

Tabitha Tripp, an activist involved with several of the grassroots groups fighting fracking in the state, said the “fight is far from over…You can’t compromise your clean water, clean air and the future of your children.”

The Department of Natural Resources directed requests for comment to the Joint Committee on Administrative Rules, which approved the regulations. State Sen. Don Harmon, co-chair of the committee, told the Chicago Tribune it was “an iterative process.”

“Industry would say the changes made between the first and second [drafts] were led by environmental advocates. Now, the pendulum swings back the other way. We aim to displease in equal measure,” he said. 

Fight Goes Local

The battle in Illinois is emblematic of the larger dispute over fracking across the U.S.  Opponents cite evidence that the technology, which involves injecting chemical-laced water at high pressure to fracture rock formations to release the oil and gas, contributes to earthquakes, adds to air pollution and destroys limited fresh water supplies. They argue that oil and gas companies shouldn’t be free to profit from fracking until all of the risks are well understood—if it should be allowed at all.

In Illinois, the environmentalists haven’t seen the final rules, which won’t be published in the Public Register until Nov. 15. Some of them say they are worried that the measures they fought for were stripped from the regulations.

On Monday, the grassroots group Southern Illinoisians Against Fracturing Our Environment (SAFE) and other anti-fracking activists filed a complaint against the Department of Natural Resources citing mistakes they made in the rulemaking process, such as preventing citizens from testifying during public hearings and giving insufficient notice of hearings. They may also challenge that the fracking regulations don’t uphold the state constitution’s guarantee of a healthy environment, Tripp said.

On Tuesday night, Grassroots leaders discussed strategy at a meeting. According to Tripp, environmental groups are looking into organizing a legal clinic to teach activists how to challenge drilling permit applications. They hope to get anti-fracking activists into positions of local power, such as on county boards and city councils. They will also pursue local bans. 

National and mainstream environmental groups including the Natural Resources Defense Council and the Illinois Environmental Council will be watching the Department of Natural Resources closely as it implements the regulations, said Ann Alexander, a senior attorney for the NRDC in Chicago. Between dealing with the anticipated flood of permit applications, the shift to a Republican administration and ensuring that all of the new drilling sites are following the rules, the fracking regulations will be a “heavy lift” for the natural resources department, she said. Any missteps could be environmentalists’ best way of obtaining stricter fracking rules.

“The most effective changes are made when implementation fails,” Alexander said.

Mainstream groups also plan to introduce two fracking-related legislative efforts next year, said Walling. One will seek to ban all oil and natural gas extraction, including fracking, in state parks. The other will require that any money gathered from an oil and gas extraction tax, also known as a severance tax, be given to communities affected by fracking and for renewable subsidies.

Difference a Year Makes

The regulations approved last week followed a contentious, two-year process that started with the passage of the state’s first fracking legislation in May 2013. It called on the Department of Natural Resources to write regulations. The bill, SB1715, was written in a rare collaboration between state policymakers, mainstream environmental groups, and the oil and gas industry.

In November 2013, the department released its first draft of regulations, but anti-fracking activists quickly rejected them, arguing that many of the environmental and health-safety measures they advocated had been stripped from the rules. Citizens flooded the department with 30,000 comments. After that, the agency overhauled the proposals. It released an updated draft in August reinserting many of the measures that had been removed.

“It was hands down the most thorough response to comments that I had ever seen,” said Alexander, who represented the environmental movement in negotiations for SB1715. “It was at this point that the industry went nuts. They began to complain at fever pitch. And slowly, the door started to close on the transparent rule-making process we had enjoyed for more than a year.”

In mid-October, environmentalists heard that the Department of Natural Resources and industry representatives were meeting behind closed doors to make final adjustments—a move that Walling described as “strange, but not unheard of.” On Nov. 6, the regulations were approved 11-0 by the state legislature’s Joint Committee on Administrative Rules in a session that lasted 15 minutes, according to the Chicago Tribune.

The natural resources department has already hired 32 people to review permit applications, a job previously done by four staffers, according to the Chicago Tribune. The agency also requested funds for 20 more jobs such as well inspectors.

Hydraulic fracturing has divided the public and policymakers in Illinois over the last few years. Anti-fracking activists say not enough is known about the practice’s health and environmental risks to open up the state to drilling. But others, particularly those in southern Illinois, point to the extra money that fracking could bring to their communities.

A number of landowners in Wayne County—in southern Illinois about 100 miles east of St. Louis—sued Gov. Pat Quinn and the director of the Department of Natural Resources for delaying fracking. They had already leased their properties to oil and gas companies and argued that the delay prevented them from making money.

Fracking also played a significant role in the state’s gubernatorial election this month, with energy companies pouring money into Republican governor-elect Bruce Rauner’s campaign. Rauner procured $240,000 from oil and gas interests at just one event, according to the Southern Illinoisan.

Environmentalists and activists from both mainstream and grassroots groups promise that even while they challenge the regulations, the ultimate goal remains a ban or moratorium on fracking within the state.

“That is the only sensible course of action for Illinois,” Alexander said.