Extracting the Middle Ground: Is it Time to Federally Regulate Fracking?

Patrick Gilsenan
Associate Editor
Loyola University Chicago School of Law, Weekend JD 2023
The use of fracking has made the United States the global leader in natural gas and crude oil production.  However, the practice is not without controversy.  Activist groups have called for a ban against fracking as scientists have warned of potential health and environmental impacts, while energy lobbyists have fought bitterly against any restrictions or regulations.  As it stands, U.S. regulating of fracking has been mostly left ineffectively to the states, with exemptions to federal regulations on the books. As the societal costs of fracking become better understood, regulators and policy makers must make difficult decisions regarding the practice.

What is fracking?

Hydraulic fracturing, better known as fracking, is a technique that uses a “high-pressure injection of water, chemicals and sand into shale deposits to release gas and oil trapped within the rock.”  Improvements in recent years have made the extraction of gas and oil from the earth far more efficient, which has led to a rapid increase in the technique’s use and a subsequent boom in energy production.

Over the last ten years, fracking has led to the United States leading the world in oil and natural-gas output, having more than doubled its crude oil output and raising gas production by roughly two-thirds.  In addition to aiding energy independence, peer-reviewed studies find that fracking is responsible for creating 550,000 jobs, while industry groups suggest that banning it could result in 7.5 million jobs lost.  If anything, industry groups want fracking to be promoted further.

Despite the economic benefits of fracking, environmental groups such as the Sierra Club are committed to ending fracking altogether as they believe “fracking poses unacceptable risks to our communities, our environment and our climate.  Other groups, such as the National Resources Defense Council, inc. (“NRDC”) are more open to changes in regulation, calling for stronger safeguards, and empowering communities to either regulate or block fracking within their borders.  According to the NRDC, “unchecked fracking has been linked to air pollution, water contamination, and other serious health risks. Yet a lack of regulation and oversight has allowed oil and gas producers to disregard potential harm to communities.”

The damage being done to our communities, our water, and our climate

One frequent narrative around fracking is that we don’t know enough about the health impacts yet to conclude it’s harmful, as fracking as it’s done today is relatively new.  Scientists have noted, though, that we now have over a decade of research, and “enough evidence at this point that these health impacts should be of serious concern to policymakers interested in public health.”  A systematic review of scientific articles that studied environmental and community impacts was recently published by the Oxford Research Encyclopedia of Global Health that identified several documented health impacts of people living close to fracking sites, including health issues such as negative impacts on pregnancy and birth outcomes.  In one such study from the John Hopkins Bloomberg School of Public Health, “researchers found that expectant mothers living in the most active area of fracking drilling and production activity were 40 percent more likely to give birth prematurely.”

The Environmental Protection Agency (“EPA”) has also conducted its own studies regarding the health impacts of fracking.  In a 2016 report on the impacts of fracking on drinking water, the EPA found scientific evidence that hydraulic fracturing activities can impact drinking water resources under some circumstances.  Per the executive summary, several specific factors were identified that make the negative impacts more severe.  These factors include the withdrawing of water when water resources are limited; injecting fluids directly into groundwater resources; injecting fluids into wells that allow them to leak into the groundwater; not adequately treating wastewater before disposing of it; and dumping wastewater into unlined pits, where it can leak out.  Unsurprisingly, the EPA’s findings were resoundingly rejected by industry groups such as the American Petroleum Institute (“API”).

Other recent studies have found relationships between the sudden boom in fracking and climate change.  Robert Howarth of Cornell University concludes in a recent study that “shale-gas production in North America over the past decade may have contributed more than half of all of the increased emissions from fossil fuels globally and approximately one-third of the total increased emissions from all sources globally over the past decade.”  This is due to methane released in the process of extracting natural gas, which per the Environmental Defense Fund, has contributed to 60% higher emissions than the EPA’s estimates. According to New Scientist, the leakage of methane is so high that it “undermine[s] the dominant narrative in the US that its energy sector has become much cleaner in recent years as it switched to burning natural gas instead of coal for power.”

First, mitigate the harm

Currently, fracking is primarily regulated at a state level.  However, this has led to inconsistent and modest-at-best regulations.  According to a 2015 study done by the NRDC, even when states do have adequate regulations, they generally lack the resources to operate sufficient compliance programs to enforce them.  Some state regulators such as West Virginia’s Department of Environmental Protection didn’t write up violations at all, and rather offered “compliance assistance” to frequent offenders.

At the federal level, the EPA is responsible for creating standards and laws promoting the health of individuals and the environment, including clean water through the Safe Drinking Water Act.  Through the Energy Policy Act of 2005, however, fracking was explicitly exempted from EPA oversight through the Halliburton Loophole, except when diesel is used.  Previous efforts to expand, or at least restore, federal regulations can serve as a roadmap to potential changes.  In 2015, Democratic congressmen introduced a suite of bills known as the Frack Pack that sought to close loopholes in major environmental laws.

Neither political party has incorporated banning fracking into its platform, and Vice President Joe Biden has recently reiterated that he would not ban fracking, despite Republican claims otherwise.  Although for now fracking appears to be here to stay, policy makers can and should develop stronger regulations to mitigate the damage it causes.  Potential solutions can range from closing the Halliburton Loophole to return jurisdiction to the EPA, providing grants to state regulators to ensure that existing state regulatory authorities are adequately resourced to enforce their own rules, and passing specific federal guidelines to address the concerns raised in the EPA’s 2016 report and the harms identified in recent studies.