On Disclosures of Fracking Chemicals — Part I

The Facts on Fracking Chemical Disclosure - FactCheck.org, April 7, 2017

Q: Are the chemicals in fracking solution protected from being made public by a law passed while Dick Cheney was vice president?

A: Yes. A 2005 law bans the federal government from requiring companies to disclose fracking chemicals. But 28 states do require disclosure of some fracking fluids.

FULL QUESTION

Is it true that the chemicals in fracking solution are protected from being made public by a law or bill passed by Congress while Dick Cheney was in President Bush’s cabinet? Is it true that Cheney strong-armed members in Congress to pass the bill? Is it true that the fracking companies don’t have to reveal the chemicals in fracking solution?

FULL ANSWER – Part I

Hydraulic fracturing, or fracking, is a method used to obtain natural gas and oil from rock formations underground. The process involves injecting water, sand and various chemicals into drilling wells at high pressure, releasing oil and gas that would otherwise be difficult to retrieve.

Fracking gained public attention after the technique led to a boom in U.S. oil and gas production. In 2000, around 26,000 fracked wells produced 3.6 billion cubic feet per day of natural gas. In 2015, 300,000 fracked wells produced more than 53 billion cubic feet per day, according to the Energy Information Administration. The EIA also shows a similar increase for crude oil production over that time period.

Signed into law by President George W. Bush, the Energy Policy Act of 2005 leaves the regulation of fracking to the states, most of which do require some, but not all, chemical disclosure.

As for Vice President Dick Cheney’s role in passing the law, he chaired the National Energy Policy Development Group, which advocated the expanded use of fracking in its 2001 final report, and he lobbied Congress to pass the 2005 law. Critics may believe that Cheney “strong-armed” Congress to pass the law, but the fact is that the bill easily passed both the House and the Senate with bipartisan support.

Why the Feds Can’t Regulate Fracking

The jurisdiction to regulate fracking didn’t always lie only in the hands of the states.

The Safe Drinking Water Act of 1974 did allow for the federal regulation of fracking, or more generally all “underground injection.” The act defines this term as “the subsurface emplacement of fluids by well injection.”

Yet the U.S. Environmental Protection Agency didn’t see fracking as within its jurisdiction under the Safe Drinking Water Act for nearly 20 years after the act’s passage. The EPA reasoned the term only applied to wells whose “principal function” is the emplacement of fluids — i.e., it wouldn’t apply to natural gas wells.

But in 1997 an 11th Circuit Court judge ruled that fracking did fall “within the plain language of the statutory definition of ‘underground injection’” in a case between the Legal Environmental Assistance Foundation and the EPA.

Then in 2005 the Energy Policy Act amended the Safe Drinking Water Act’s definition of “underground injection” to specifically exclude “fluids or propping agents (other than diesel fuels)” used during fracking operations related to oil, gas, or geothermal production.

President Bush signed the bill, which passed the Senate, 74-26, and the House, 275-156, with bipartisan support. Then-Sen. Barack Obama supported the bill, for example.

However, Obama tried, unsuccessfully, to regulate fracking through the Interior Department when he became president.

In March 2015, the department, through the Bureau of Land Management, released a final rule that aimed to “help protect groundwater by updating requirements for well-bore integrity, wastewater disposal and public disclosure of chemicals” related to fracking activities specifically on federal and tribal lands.

In other words, the BLM rule would have made companies report some of the chemicals they use during fracking operations on federal and tribal lands in all 50 states. It would have also regulated how companies construct wells and dispose of fracking fluids, among other provisions.

But the BLM fracking rule was struck down in June 2016 by U.S. District Judge Scott Skavdahl, who Obama appointed to the court in 2011. Skavdahl specifically pointed to the Energy Policy Act of 2005 in his ruling.

“The issue before this Court” is not to determine whether fracking is “good or bad for the environment or the citizens of the United States,” but to evaluate whether Congress has given the Interior Department authority to regulate fracking, he wrote in his ruling. “Given Congress’ enactment of the EP Act of 2005,” to conclude that it has delegated BLM authority to regulate fracking “lacks common sense,” he concluded.

The Cheney Connection

In his second week in office, Bush created the National Energy Policy Development Group, which was headed by Cheney. In its final May 2001 report, the group recommended that the “President direct the Secretaries of Energy and the Interior to promote enhanced oil and gas recovery from existing wells through new technology,” specifically fracking.

Congress then moved to pass an energy plan that incorporated the task force’s recommendations. But the Energy Policy Act of 2002 and the Energy Policy Act of 2003 both failed in Bush’s first term. It wasn’t until his second term that the Energy Policy Act of 2005 passed.

The 2002 bill, as first introduced in the House, initially didn’t address fracking. But the bill as amended by the Senate did address it in section 610. Specifically, it imposed a three-year freeze on regulation of fracking until a study could be done on its impact on water quality. The amendment was inserted by Sen. Jeff Bingaman of New Mexico, a Democrat.

Similar to the 2005 act, the 2003 House bill, as introduced, then included language (section 12201) that excluded “the underground injection of fluids or propping agents pursuant to hydraulic fracturing operations related to oil or gas production activities” from the Safe Drinking Water Act.

The Bush administration supported the Energy Policy Act of 2005, and Cheney lobbied for it. The vice president met with Rep. Joe Barton, sponsor of the bill, on April 5, 2005. A press release about that meeting said, “Cheney and Barton both agreed to work in their respective branches of the government to pass the bill into law and help meet America’s changing energy needs.”

Part II to follow tomorrow.