An Opportunity to Protect Our Drinking Water: Overseeing Fracking and Closing Loopholes

, lead analyst, Center for Science and Democracy | January 28, 2015, 2:24 pm EDT
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As we’ve discussed here before, the federal government has played a limited role thus far in the regulation and oversight of hydraulic fracturing, leaving states and municipalities to manage a large and fast-paced industry. Today, members of the Senate have a chance to allow the EPA to better protect water resources in oil and gas development across the country.

Senator Kirsten Gillibrand has introduced an amendment on the currently-under-debate Keystone XL bill on which senators will vote on amendments this afternoon. The well-written amendment would close the so-called “Halliburton loophole” that currently exempts the oil and gas industry from regulation under the Safe Drinking Water Act (SDWA). The amendment is a welcome move, given the risks to drinking water associated with oil and gas development.

What is the “Halliburton Loophole” and what is its impact on fracking?

Dimock,Pennsylvania, shown here, is one of many locations that have seen adverse impacts of oil and gas drilling. The Safe Drinking  Water Act could help better protect water resources near fracking sites, if the law was inclusive of the oil and gas industry's hydraulic fracturing operations. Photo: Sierra Club Illinois

Dimock,Pennsylvania, shown here, is one of many locations that have seen adverse impacts of oil and gas drilling. The Safe Drinking Water Act could help better protect water resources near fracking sites, if the law was inclusive of the oil and gas industry’s hydraulic fracturing operations. Photo: Sierra Club Illinois

A central component of hydraulic fracturing is the injection of millions of gallons of water, sand, and chemicals deep underground; however, most hydraulic fracturing operations are exempt from regulation under the SDWA because of a provision inserted in the Energy Policy of Act 2005, commonly known as the “Halliburton loophole.”

Evidence suggests that the Halliburton loophole was put into the law by oil and gas interests. This exemption was recommended by the Energy Policy Task Force, a team of experts convened during the George W. Bush administration to advise on energy policy issues. The task force was chaired by Vice President Dick Cheney, who served from 1995 to 2000 as chairman and CEO of Halliburton Co., one of the largest companies engaged in unconventional oil and gas development. An initial draft of the task force’s report expressed concerns about possible water contamination from hydraulic fracturing, but such concerns were absent in the final report.

As a consequence of the Halliburton loophole, the EPA currently cannot regulate the majority of hydraulic fracturing operations. To some extent, the federal government has investigated groundwater quality near drilling sites.  For example, the EPA did use its existing authority to start investigations of drinking water contamination in Dimock, PA; Pavillion, WY; and Parker County, TX. However, in the end, the agency abandoned its study of water contamination in all three locations, demonstrating the limitations in the agency’s ability and willingness to investigate and hold actors accountable for instances of potential water contamination from oil and gas activities.

We can better protect our drinking water

If the EPA had authority under the Safe Drinking Water Act to oversee hydraulic fracturing operations, the agency could better manage risks to drinking water supplies posed by oil and gas development. Such a move could serve to prevent what happened in Dimock, Pavillion and Parker County from happening in other places. I support this amendment to better protect our drinking water in communities across the country.

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  • Richard Solomon

    Thanks for highlighting this info. Apparently, the amendment failed to get enough votes in the Senate to proceed.

    What does UCS intend to do to continue efforts to have fracking regulated by the Feds? I have sent emails to my Senators and Rep in the House about this issue in the past when something related to it comes up in a newspaper article, etc. I am willing to do so again, sign petitions, etc. Please take a pro-active stance on this issue and provide us with some guidance as to how to proceed.

    • Richard, thank you for your thoughts and your continued effort to get federal government action on this important issue. Even though the amendment failed, I see it as a promising sign of renewed interest in addressing this issue at the federal level. Perhaps the amendment will put the issue back on the radar of others in Congress. We can also await the results of the EPA’s study of water quality and hydraulic fracturing. This may also bring more attention here and improve our understanding of the science, contamination risks, and potential policy solutions to better protect our water supplies. I’ll continue to look for opportunities to raise this issue.