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In Search of the Federal Role on Fracking

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I have been reading and thinking a lot about hydraulic fracturing (“fracking”) for oil and gas lately as, here at UCS, we plan for a Science and Democracy Forum to be held this month in Los Angeles. Our forum will explore what we know—and need to know—to inform decisions on fracking. But given that fracking is now a major source of oil and gas production domestically and internationally, as we prepare for the forum, I find myself continually asking, “where is the federal government in all of this?”

United_States_Shale_gas_plays,_May_2011.pdfA failure to lead

Federal agencies—far from leading on such a critical national and international issue—are taking a back seat to the states. It has largely been left to the states to provide the basic framework for the public health, safety, and environmental protections needed by many communities facing oil and gas development fueled by advancements in fracking technology. In fact, despite a great lineup of participants in the forum, representatives at three federal agencies involved with unconventional oil and gas development (EPA, DOE, and DOI) were invited to our forum but did not accept.

To be sure, on Federal lands and on Native tribal lands the Department of Interior and the Environmental Protection Agency are key players. And the EPA also has a role to play in development on private lands through some statutory authority and in conducting environment and health studies. But, even to a former federal scientist and regulator like me, the policy-making process seems to be moving very slowly, with numerous delays, exemptions, diversions, false starts and withdrawals. Overall, it is clear that the federal government has decided that the states should lead.

The need for comprehensive and coherent rules

From my perspective, the current federal inaction is unfortunate and deeply worrying. Federal agencies have enormous capacity and capability for research and analysis, monitoring, inspection, and enforcement – unmatched by any state. And despite rhetoric to the contrary, recent studies have shown that state regulatory systems are not up to the task of managing risks related to unconventional oil and gas development. And, from a science perspective, for baseline studies and ongoing monitoring,  as well as enforcement of regulatory requirements for oil and gas operations, we need that federal capability. I am not arguing that states should relinquish their critical role in overseeing fracking—to the contrary, they need to step up their game. However, we need a comprehensive and coherent set of rules that bring federal and state capabilities into play to address the risks.

Meanwhile, Congress seems to be pushing hard to keep the states in the lead. For example, a recent hearing of the House Natural Resources Committee entitled, “DOI Hydraulic Fracturing Rule: A Recipe for Government Waste, Duplication and Delay” was perhaps not designed to explore the issue as much as hammer home a point. And Congress has, over the years, exempted oil and gas exploration and production from the federal statutes that are designed for, and frankly have succeeded in, cleaning up pollution of our water, air, and land. Those exemptions have come about through highly successful lobbying efforts by the industry, which spent $700 million over the last decade to craft the rules in their favor.

There are real risks related to unconventional oil and gas development, ranging from the social and environmental impacts of industrializing rural landscapes, to public health risks within communities. As with many parts of our complex society, we may choose to accept some risks in the name of economic development. But we always want to minimize risks to the public and to our public trust resources. Because, even if oil and gas development happens on private land, the potential impacts are much broader. Land, air and water pollution and societal change concern our society as a whole. Taking all these factors into consideration, our upcoming forum will consider the available scientific evidence, assess the strengths and weakness of the current regulatory landscape, and explore opportunities for better citizen engagement.

A lesson from the Founding Fathers

In the first of the Federalist papers, Alexander Hamilton expressed cynicism about the course of the nation, questioning  “…whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

I have no idea what Hamilton would have made of the current controversies over fracking. But he believed, as I do, that we should at least “establish good government from reflection and choice.” To achieve this, we need the states and the federal government working together for the common good and seeking reliable scientific evidence to make their decisions, not waiting around while they decide “Who’s on first.”

Posted in: Energy, Fossil Fuels, Science and Democracy Tags: , , ,

About the author: Andrew Rosenberg is the director of the UCS Center for Science and Democracy. He leads UCS's efforts to advance the essential role that science, evidence-based decision making, and constructive debate play in American policy making. See Andrew's full bio.

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2 Responses

  1. Ken Glick says:

    Not to split hairs here but Alexander Hamilton was referring to government in the larger sense, not specifically the federal government which at that time was extremely limited in its scope.

    Perhaps you should invite State representatives from the DEPs of such states like Pennsylvania, Colorado and Texas which have many years experience in regulating hydraulic fracturing operations within their borders. My understanding is that individual states are in a better position to regulate hydraulic fracturing activities rather than a one-size-fits-all approach that the federal government would inevitably take.

    • Thank you for these points. I too was referring to government, both state and federal, as both have a role in public health and safety as well as management of public trust resources. For our forum we have invited some representatives from states with experience with fracking and look forward to hearing their views. In fact the federal government doesn’t take a one size fits all approach for most environmental laws such as the Clean Air Act or the Clean Water Act, and most other statutes, but gives the states a leading role while setting minimum standards.