The Environmental Lightning Rod Known as Fracking

Of all issues energizing environmentalists, hydraulic fracturing, or fracking, of the subsurface rocks during the production of oil and gas is near the very top of the list.

In spite of this, several recent government decisions and court rulings have come down on the side of fracking. For example, overshadowed in May by Brexit coverage, elected officials in Yorkshire, England gave the thumbs up to fracking operations there in an effort to boost natural gas production. Also in May, the Colorado Supreme Court struck down fracking bans passed by the city governments of Fort Collins and Longmont, in a ruling that upheld the legality of the state to regulate fracking, versus the municipalities’ lack of standing to ban use of the technology.

In June, a federal judge in Wyoming struck down rules proposed by the Interior Department’s Bureau of Land Management (BLM) to further regulate hydraulic fracturing on federal lands. BLM’s fracking rules were designed to collect additional information already gathered and regulated by states to assure protection of groundwater supplies in oil and gas producing areas. The energy industry argued these fracking rules are duplicative, expensive to carry out, and the net result would not increase environmental protection. Worse yet, the BLM and existing state rules in places countermand each other. Consequently, BLM’s fracking rules were challenged in court on the same day they were issued, and were then set aside last year by the same federal judge who struck them down last month.

The timing and tenure of the judge’s decision has several interesting aspects. From the legal standpoint, the administration does not have the congressional authority to regulate fracking. The judge’s opinion stated “the BLM’s efforts to do so through the fracking rule is in excess of its statutory authority and contrary to law.” He further explained that “Congress’ inability or unwillingness to pass a law desired by the executive branch does not default authority to the executive branch to act independently, regardless of whether hydraulic fracturing is good or bad for the environment for the citizens of the United States.”

The judge’s decision to strike the BLM rules also comports with the major finding in EPA’s June 2015 “Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources.” In it, the agency’s key findings stated “we did not find evidence that these mechanisms (fracking) have led to widespread, systemic impacts on drinking water resources in the United States.

The recent legal decisions striking down rules and bans on fracking are based on fundamental constitutional law, nevertheless they are occurring even as the environmental hysteria over fracking appears to be increasing. However, the theory of groundwater contamination due to rock fracturing many thousands of feet below the groundwater table has lost much of its credibility, particularly with last year’s publication of the EPA study.

In the end, BLM’s fracking rules sought to create a blanket regulation of a critical proven technology that, when combined with horizontal drilling, provided the foundation of the shale revolution—in turn contributing mightily to the success of the American energy renaissance. In fact, the Energy Information Administration (EIA) in May reported that the U.S. remained the world’s top producer of petroleum and natural gas for 2015, having surpassed the production of Russia in 2012 and Saudi Arabia in 2013, due to surging production brought about by fracking and horizontal drilling.

Finally, forgotten among the energy production statistics is the fact that over the past five years, the increased use of natural gas brought about by the fracking and horizontal drilling of the shale revolution has cut the carbon intensivity of new fossil fuel power production by roughly 50 percent. With regard to the EPA, decreased carbon emissions should be as much of a key issue as groundwater safety. As the public and elected officials become better educated on this important topic—so central to our uninterrupted energy supply—it appears increasingly likely that any environmental “lightening” being hurled at hydraulic fracturing technology will be harmlessly directed to ground.