On Capitol Hill, momentum appears to be shifting toward federal regulation of a drilling technique known as hydraulic fracturing. Last week, the head of the House Energy and Commerce Committee sent letters to eight oil and gas companies asking for information on the chemicals they use.
Oil and gas companies, including Exxon, have been vocal in their opposition to federal involvement, maintaining that the hodgepodge of state regulations is sufficient. In fact, Exxon is so opposed to federal regulation, it wrote into its recent $41 billion merger deal with XTO that if Congress makes "hydraulic fracturing or similar processes ... illegal or commercially impracticable," the deal is off.
Exxon CEO Rex Tillerson told a Congressional committee last month that the states have the knowledge of local geology to do the best job of regulation. However, a look at the state regulations now in place shows just how limited and inconsistent the oversight is of a practice that some people fear could contaminate water supplies.
"The state regulations vary quite widely," said Amy Mall, a senior policy analyst at the Natural Resources Defense Council. "They have regulations for how the well is constructed, how the pressure is monitored, those kinds of things, but nothing specific to hydraulic fracturing."
Hydraulic fracturing — or hydrofracking, or just fracking — involves injecting large quantities of water, sand and a mix of chemicals deep underground to push out natural gas deposits buried in rock formations like the Marcellus Shale in New York and Pennsylvania. The chemicals involved have been a closely held proprietary secret by the companies who use hydrofracking, and they claim they would lose a competitive advantage if forced to reveal the cocktails.
The technique has been used in thousands of wells since 1949, and companies say it is necessary to access the vast quantities of natural gas locked in shale formations around the country. Drillers say the process is safe, however there have been spills of fracking fluids, which can included dangerous additives such as benzene, and reports of well water contamination.
Move Toward Federal Regulation
In 2009, matching bills were introduced in the House and Senate aimed at closing a loophole in the Safe Drinking Water Act that exempts hydrofracking from federal regulation. Rep. Diana DeGette (D-Colo.) sponsored the House version of the so-called FRAC Act, and a spokesperson from her office, Lisa Cohen, told SolveClimate that "there is certainly a growing nationwide concern about what's in these chemicals, and growing support for our legislation."
Cohen said that the committee's request for information on the chemical solutions will be an important step in moving the legislation forward.
"Without knowing what's in these fracking solutions, it is hard to say with certainty what oversight is necessary," Cohen said. She added that the current state regulatory environment of hydrofracking is "very ad hoc."
According to a report prepared in June 2009 by Earthworks and the Environmental Working Group, Alabama is the only state with specific regulations on hydrofracking, and those came as a result of a 1997 court case.
Other states regulate the practice as part of their programs for all oil and gas drilling. In Colorado, for example, well operators who want to use "enhanced recovery operations" that include hydrofracking apply for a permit with the Oil and Gas Conservation Commission. Notably, the requirement of a chemical analysis of any fluid used applies only to other types of underground injection techniques and not hydrofracking; the only requirement specific to hydrofracking is the vaguely worded "description of any proposed stimulation program," according to a 2009 report in the Fordham Environmental Law Review.
Pennsylvania has some of the most stringent fracking regulations in the country, with requirements for distance of wells from a water source and specific mentions of both the practice of hydraulic fracturing and of drilling in the Marcellus Shale. The state also requires that those wishing to use hydrofracking "provide chemical analysis of the fracking fluids to be added to the raw water." Colorado and Pennsylvania, as well as New York and several other states, also have specific regulations for the disposal of waste water and fluids produced as a result of hydrofracking.
In New Mexico, where hydrofracking is commonly used in the San Juan basin area, there are restrictions on some chemical components of hydrofracking fluids, but the regulations do not specifically name that technique. Well operators are required, however, to test the drilling areas for benzene and other hazardous chemicals in order to ensure public safety.
Several other states, such as Montana and Texas, do have some degree of oversight over the hydrofracking process; many others have barely any regulation at all, or they address only specific issues, like wastewater removal, without attempting to regulate the chemicals or well placement.
Mall said that there needs to be a federal "baseline" up to which all states rise, and further regulation could still be done at a state level. Non-profit groups are also paying close attention. On Wednesday, Earthworks is launching a watchdog for Texas drilling, dubbed the Texas Oil and Gas Accountability Project.
Updating EPA's 2004 Conclusions
The exception to the Safe Drinking Water Act was passed in 2005 as a result of a previous year's report from the Environmental Protection Agency that hydrofracking was safe. Ever since, industry groups have pointed to that study as the main defense against any further regulation, but several incidents involving chemical contamination and questions about the EPA study itself — raised mainly by ProPublica — have contributed to the momentum to revisit hydrofracking's potential impacts.
The 2005 law change was accompanied by a voluntary agreement between the three largest hydrofracking companies — Halliburton, BJ Services and Schlumberger — and the EPA to restrict the use of diesel fuel in the hydrofracking process. According to Rep. Henry Waxman (D-Mass.), chairman of the House Energy and Commerce Committee, Halliburton appear to have violated that agreement by using more than 807,000 gallons of diesel-based fluids in its wells between 2005 and 2007.
A spokesperson for the EPA sent a prepared statement via e-mail to SolveClimate, saying:
"There are compelling reasons to believe that hydraulic fracturing may impact ground water and surface water quality in ways that threaten human health and the environment, which demands further study."
In spite of the EPA's willingness to revisit the issue the agency blessed as safe in 2004, industry groups still point to that old report and claim state regulation is the way to go. The Interstate Oil and Gas Compact Commission, comprised of 30 oil and gas producing states, passed a resolution last year urging Congress to stay away from the issue.
Some in Congress agree with the industry position. Sen. James Inhofe (R-Okla.) said in a hearing last year that "new federal regulation of hydraulic fracturing would be a disaster." He and others, as well as industry representatives, claim that federally regulating the practice would make hydrofracking commercially impracticable.
Congresswoman DeGette, though, has said that passing the FRAC act would not make hydrofracking illegal or impossible.
"I support the use of hydraulic fracking," DeGette said. "But I also support it being done in an environmentally responsible way."
Mall, of the NRDC, expects the FRAC Act to pass.
"The state regulation is a huge problem, and it's a growing problem because this industry is only growing, and it wants to grow even more, and it wants legislation to help it grow even more," Mall said. "This issue is not going away, and it is only going to become more and more terrifying to people who live in these communities. We need federal oversight."