The Need for Federal Hydrofracking Legislation

With myriad exemptions in place for the natural gas industry in federal environmental legislation, most of the regulation is left to the states.  This has led to a hodgepodge of regulation that leaves the public health and environment under protected and forces industry to operate under numerous regulatory frameworks.

New York and Pennsylvania are currently undergoing processes to improve their hydraulic fracturing regulations.  On July 1, the New York Department of Environmental Conservation (DEC) released its Preliminary Revised Draft SGEIS on the Oil, Gas and Solution Mining Regulatory Program, totaling almost 1100 pages, and, last week, the Marcellus Shale Advisory Committee (MSAC), as commissioned by Pennsylvania Governor Tom Corbett, released its recommendations in a 137 page report.  Both could be steps in the right direction provided there is adequate public input and profits are not put ahead of public health and the environment.

New York and Pennsylvania are facing many of the same issues concerning hydraulic fracturing but are addressing the issues differently, causing confusion amongst the public and possibly incentivizing industry-friendly regulations that are believed to draw business.  Even within each state, proposed regulations vary.  In New York, for example, areas that affect primary, unfiltered water supplies, such as those of New York City and Syracuse, would be regulated differently from the rest of the state.

Meanwhile, industry is looking to aggressively develop and drill for gas in New York and Pennsylvania, which contain large parts of the Utica and Marcellus Shales. While New York has had a temporary moratorium on hydrofracking, Pennsylvania has had the most well-documented instances of drinking water contamination associated with the practice.

These circumstances have led the two states to implement or consider many commonsense regulations, many of which simply close federal loopholes at the state level.  For example, what is known as the “Halliburton Loophole” exempts the natural gas industry from having to disclose the chemical composition of hydraulic fracturing fluids under the Safe Drinking Water Act.  Both the MSAC in Pennsylvania, and the DEC in New York have recommended full disclosure of hydrofracking chemicals.

Representatives of the oil and gas industry have challenged the need for federal regulation by claiming to support “state’s rights” or that “a one size fits all” approach will not work, simply ploys to avoid federal regulation.

Not to mention, a state-by-state regulatory system allows the possibility for states to have a race-to-the-bottom mentality in order to attract business.

It is questionable whether hydraulic fracturing can be done safely at all and it is clear we should be moving towards a renewable energy economy.  In the meantime, however, there needs to be federal legislation that will protect public health and the environment, much of which can be done by simply removing unnecessary exemptions to federal legislation that is already in place.

-Scott McDonald, Public Citizen Summer Intern, Senior at Fordham University