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What it does 

HR 928 / S 334, the Fracturing Regulations are Effective in State Hands Act, was created to clarify that a state has the sole authority to regulate the explicit process of hydraulic fracturing (also known as “fracking”) on or under any land within the boundaries of the state, including federal land.

Under this bill, states are granted complete authority to declare or enforce any regulation, guidance, or permit requirement regarding the treatment of wells for hydraulic fracturing within the state’s borders. This bill defines such a well as one that requires the injection of fluids, propping agents, and man-made chemicals under pressure for the express purpose of producing fractures and maintaining the space created within those fissures to remove oil, natural gas, or geothermal products from a geologic formation in order to enhance production of oil, natural gas, or geothermal production activities.

The bill emphasizes that states have sole authority to regulate hydraulic fracturing wells even if they exist within federal land. The bill defines federal land to include:

Relevant Experts 

Avner Vengosh, Ph.D., Professor of Earth and Ocean Sciences in the Nicholas School for Environmental Science at Duke University. Professor Vengosh aims to link environmental geochemistry and isotope hydrology in order to trace the sources and mechanisms of water contamination and relationships with human health including, the impact of gas drilling and hydro-fracking on the quality of shallow groundwater. 

“Much of the public fear about fracking has centered on the chemical-laden fracking fluids -- which are injected into wells at the start of production -- and the potential harm they could cause if they spill or are disposed of improperly into the environment,” said Avner Vengosh, as published in a news article online.

Relevant publications:

  • “Quantity of Flowback and Produced Waters from Unconventional Oil and Gas Exploration,” Andrew J. Kondash, Elizabeth Albright, and Avner Vengosh. Science of the Total Environment, 2016. DOI: 10.1016/j.scitotenv.2016.09.069
  • “The Geochemistry of Naturally Occurring Methane and Saline Groundwater in an Area of Unconventional Shale Gas Development,” Jennifer S. Harkness, Thomas H. Darrah, Nathaniel R. Warner, Colin J. Whyte, Myles T. Moore, Romain Millot, Woldfram Kloppman, Robert B. Jackson, and Avner Vengosh. Geochimica et Cosmochimica Acta, 2017. DOI: 10.1016/j.gca.2017.03.039
Background 

Whereas this bill solely speaks to the authority of a state to regulate the treatment of a hydraulic fracturing well, the federal government already regulates other activities relating to hydraulic fracturing (such as surface discharges, wastewater disposal, and air emissions) under a variety of environmental statutes:

  • Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), i.e. the Clean Water Act (CWA): According to the EPA summary of the CWA, it is unlawful to discharge any pollutant from a point source into navigable waters, unless a permit is obtained;
  • Safe Drinking Water Act (SDWA; 42 U.S.C. 300f et seq.): According to the EPA summary, the SDWA focuses on protection of all waters actually or potentially designed for drinking use, whether from above ground or underground sources; and
  • Clean Air Act (CAA; 42 U.S.C. 7401 et seq.): According to the EPA summary, the CAA is the comprehensive federal law that regulates air emissions from stationary and mobile sources.
Endorsements & Opposition 

Endorsements: 

In 2016, Professor Avner Vengosh, professor of geochemistry and water quality at Duke’s Nicholas School of the Environment said that their analysis “…shows that these [chemical-laden fracking] fluids only account for between 4 and 8 percent of wastewater being generated over the productive lifetime of fracked wells in the major U.S. unconventional oil and gas basins,” and that “[m]ost of the fracking fluids injected into these wells do not return to the surface; they are retained in the shale deep underground.” In other words, the likelihood of “…environmental impacts from the man-made chemicals in fracking fluids is low, unless a direct spill of the chemicals occurs before the actual fracking.”

Bureau of Land Management Director Bob Abbey stated, “We have not seen evidence of any adverse effect as a result of the use of the chemicals that are part of that fracking technology.”

On May 24, 2011, before the Oversight and Government Reform Committee of the House of Representatives, Lisa Jackson, the Administrator of the Environmental Protection Agency, testified that she was “not aware of any proven case where the fracking process itself has affected water.”

A January 2009 resolution by the Interstate Oil and Gas Compact Commission stated “The states, who regulate production, have comprehensive laws and regulations to ensure operations are safe and to protect drinking water. States have found no verified cases of groundwater contamination associated with hydraulic fracturing.”

A 2009 report by the Ground Water Protection Council, entitled “State Oil and Natural Gas Regulations Designed to Protect Water Resources”, found a “lack of evidence” that hydraulic fracturing conducted in both deep and shallow formations presents a risk of endangerment to ground water.

The Ground Water Protection Council, a national association of State water regulators that is considered to be a leading groundwater protection organization in the United States, released a report entitled “State Oil and Natural Gas Regulations Designed to Protect Water Resources” dated May 2009 finding that the “current State regulation of oil and gas activities is environmentally proactive and preventive.” Additionally, the report concluded that, “[a]ll oil and gas producing States have regulations which are designed to provide protection for water resources.”

A 2004 study by the Environmental Protection Agency, entitled “Evaluation of Impacts to Underground Sources of Drinking Water by Hydraulic Fracturing of Coalbed Methane Reservoirs”, found no evidence of drinking water wells contaminated by fracture fluid from the fracked formation.

Opposition:

In 2017, Jennifer Harkness led a study, in the Nicholas School of the Environment at Duke University along with Professor Avner Vengosh, of geochemistry and water quality in the Nicholas School of the Environment at Duke University, and a team of scientists from Ohio State, Penn State, Stanford and the French Geological Survey, on groundwater contamination in an area of intensive shale gas development in northwestern West Virginia, which revealed that fracking was not a direct source, however accidental spills of wastewater from the fracking process did pose a threat to surface water.

In a 2017 online statement by Avner Vengosh, their study “…did find that spill water associated with fracked wells and their wastewater has an impact on the quality of streams in areas of intense shale gas development.” Additionally, “[t]he bottom-line assessment,” he said, “is that groundwater is so far not being impacted, but surface water is more readily contaminated because of the frequency of spills.”

Status 

HR 928 was introduced in the House on February 7, 2017, and referred to the following committees and subcommittees:

 

S 334 was introduced in the Senate on February 7, 2017, and referred to the Committee on Energy and Natural Resources on the same day.

Primary Author 
Nancy Birkner, Ph.D.
Editor(s) 
Andrew Pericak, MEM
Recommended Citation 

Duke SciPol, “Fracturing Regulations are Effective in State Hands Act (HR 928 / S 334, 115th Congress)” available at http://scipol.duke.edu/content/fracturing-regulations-are-effective-state-hands-act-hr-928-s-334-115th-congress (June 19, 2017).

License 
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