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Regulation of Hydraulic Fracturing

Governments have taken a variety of approaches towards the regulation of the practice of hydraulic fracturing. The European Union passed legislation that requires ---- before the technique may be used. France has banned hydraulic fracturing. Bulgaria banned hydraulic fracturing after hundreds of protested, concerned that it will pollute the water and soil. The Czech Republic's Environment Ministry plan to place a moratorium on new shale gas exploration to give it time to review legislation designed to eliminate legal risks. Romania has banned it but officials have said the country may lift it if environmental concerns can be resolved.

Fracking is a contentious issue in Germany. Social Democrats have called for a temporary ban on the practice while their Green Party allies want to outlaw it altogether. The German government has agreed on draft regulation to allow hydraulic fracturing, or fracking, a practice the opposition says may harm the environment. The legislation outlaws hydraulic fracturing in water protection areas and near drinking wells. it makes environmental impact studies mandatory for new projects.

Germany Agrees on Regulation to Allow Fracking for Shale Gas By Stefan Nicola & Tino Andresen - Feb 26, 2013 10:48 AM ET http://www.bloomberg.com/news/2013-02-26/germany-agrees-on-regulation-to-permit-fracking-for-shale-gas.html

European Fracking Bans Open Market for U.S. Gas Exports By Katarzyna Klimasinska - May 23, 2012 11:39 AM ET http://www.bloomberg.com/news/2012-05-23/european-fracking-bans-open-market-for-u-s-gas-exports-1-.html

Some countries support the use of hydraulic fracturing. The Polish government wants to use hydraulic fracturing to reduce dependence on supplies from Russia. China, which has huge shale reserves, seeks to use hydraulic fracturing to help meet its energy needs. The United States has voted in exemptions to laws designed to protect clean water and air, to prevent the release of toxic substances and chemicals into the environment for hydraulic fracturing and other techniques connected with gas and oil exploration and production. Exemptions were made in the Clean Water Act, as part of the Energy Policy Act of 2005, also known as the "Halliburton Loophole." These exemptions included waste water from gas and oil construction activities which includes "oil and gas exploration, production, process, or treatment operations and transmission facilities" as part of the definition of construction activities. Amendments to the Safe Drinking Water Act involved the definition of underground injection. Underground injection related to hydraulic fracturing was allowed as it is not diesel fuel, even if it jeopardizes potential drinking water sources. An exemption was also made to Toxics Release Inventory Reporting (Section 313). The oil and gas industry gets an exemption under the EPCRA, which usually requires the EPA and States to collect data on releases and transfers of listed toxic chemicals. Facilities are required to report at the discretion of the Administrator of the EPA by adding or deleting them from the Standard Industrial Classification list. Oil and gas facilities have not been added to this list and are therefore exempt from the EPCRA Finally, under the under Section 9601(14) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, hazardous waste definitions congruent with RCRA and SWDA exclude petroleum, including crude oil, natural gas liquids, and any mixture containing natural gas. If spills that would be otherwise classified under the Superfund, contain any gas mixture, are exempt from the cleanup process associated with this federal statute. Since natural gas and oil are not considered hazardous under this law, it negates EPA's ability to hold a polluting industry liable for cleanup efforts.

Within the United States, individual states have also enacted legislation that ranges from outright bans or moratoriums on the practice (Vermont; New York), to requiring disclosure of all constituents of hydraulic fracturing fluid (California), to prohibiting hydraulic fracturing waste disposal within state lines (New York). Pennsylvania passed The Marcellus Shale Law, which supports and facilitates the use of hydraulic fracturing and gas exports. The legislation includes provisions mandating that all municipalities allow Marcellus Shale well drilling, water and wastewater pits, and gas pipelines in all zoning districts, including residential, and may not limit hours of operation. The law helps pave the way for a new pipeline across Pennsylvania to export terminals in Maryland. The law mandates that compressor stations and gas processing plants be allowed in agricultural and industrial zoning districts, without any limitations to limit hours of operation. The bill says that vendors, service providers, and operators cannot be held responsible for inaccuracy in information that is provided to them, nor do they have to reveal the identities of chemicals that are not disclosed to them, that were not intentionally added to the hydraulic fracturing fluid, that are accidentally present in trace amounts, or are a product of a chemical reaction or process that occurs within the fluid. The law includes a provision that allows doctors access to the list of chemicals in hydraulic fracturing fluid in emergency situations, but forbids them from discussing this information with their patients.

Federal versus state regulation There is a debate regarding whether control of hydraulic fracturing should be at the state or federal level. Advocates of state level control of energy sources (e.g., oil, gas, wind and solar), argue that a state approach allows each state to create regulations and review processes that fit the states' particular geology, ecology and citizen concerns. Critics say that this would create a patchwork of inconsistent regulations. They point out that the components and consequences of energy development (e.g., emissions, commerce, wastewater, polluted aquifers, earthquakes, and radiation) may cross states lines, and argue that regulations need to consider the overall impact on all states. This would require regulation at the federal level. Local and state governments may lack resources to initiate and defend against corporate legal action related to hydraulic fracturing.

Those supporting federal regulation think that it will provide more consistent, uniform standards. They say that there is a need for national environment and public health standards, including those related to water and air pollution (e.g., public disclosure of chemicals used in hydraulic fracturing, protection of drinking water sources, and control of air pollutants). An compromise approach called, "cooperative federalism" has been proposed for hydraulic fracturing. The approach has been used for coal since 1977. In this approach, the federal government sets baseline standards rather than detailed specifications, which allows states more flexibility in how they meet the standards. It would require the government to remove the regulatory exemptions for hydraulic fracturing, and develop a comprehensive set of regulations for the industry.