A Hydraulically Fractured Republic: Fracking Regulation in the Age of Environmental Federalism

By Jon Burkart (PO ’24)

Before a crowd in Pittsburgh, Joe Biden promised voters: “I am not banning fracking. Let me say that again: I am not banning fracking.” It’s no wonder then, that running-mate Senator Kamala Harris was quick to reiterate Biden’s stance during the October 8th Vice-Presidential debate. The industry that employs nearly 32,000 people in Pennsylvania alone has been far from immune to the far-reaching economic impacts of the COVID-19 pandemic. To “doomers,” Gen Z-ers who see climate change as an irreversible crisis that will cause the downfall of civilization, this promise has compounded fears of increased reliance on natural gas in an age of necessary investment in renewable energy.

What exactly should be done about the fracking industry will continue to produce vigorous debate, but it’s clear that a successful approach must reassert the long-receding role of the federal government in environmental regulation.

Blast from the past

Hydraulic fracturing, better known as fracking, dates back to the early 1940s. Fracking uses fluid to blast gas-containing geological formations, allowing the natural gas to be pumped to the surface and used for fuel. Whatever fluid is used must then also be pumped to the surface, where it is either injected deep into the earth or treated to return to surface water. However, the application of fracking techniques to gas-containing shale formations and gas sands is a rather new development, one that led to a 70% increase in the United States’ natural gas production between 2005 and 2018. Despite this industry’s astronomical expansion, governmental regulation has failed to catch up. 

The federal government’s primary means of regulation dates back nearly half a century: in 1974, the Safe Drinking Water Act (SDWA) was signed into law after a slew of studies revealed major differences in the quality of municipal drinking water sources. The SDWA protects a myriad sources, including underground sources of drinking water (USDW) like aquifers, which store a significant portion of the US’s drinking water. Because contamination of USDW’s can occur both during the process of fracturing itself and the injection of fracking fluid back into the earth, the protection of USDW’s through the SDWA is the predominant method for federal regulation of fracking. 

Protecting USDWs is done through the formulation of the EPA’s underground injection control (UIC) program. Still, Section 1421 of the SDWA permits the EPA to create such regulations only when they “are essential to assure that underground sources of drinking water will not be endangered by such injection.” Clearly, the SDWA was carefully crafted so as not to step on the feet of the oil industry. Indeed, during the legislative process, the SDWA experienced resistance from oil company lobbyists. Big oil’s clout was nothing new for the federal government; what was new was the acceleration towards a more decentralized environmental federalism that centered states as the chief force in environmental regulation. 

Environmental Federalism

Aside from the SDWA’s clear inclination towards the interests of fossil fuel companies, further exploration of the law reveals two key provisions. Section 1421d, amended by the Energy Policy Act of 2005, bars UIC regulations of hydraulic fracturing except in instances when diesel fuel is used in the fracturing liquid. Above all, however, Section 1422 delegates the enforcement of UIC regulations primarily to the state. Once more, the EPA solidified drinking water regulation as another piece in a “tug-of-war” between federal, state, and occasionally local authorities.

Proponents of a decentralized approach to regulation — promulgated by the SDWA — point to a number of factors. First, shale is highly concentrated in just a few states. The Marcellus Shale Formation lies under about 60% of Pennsylvania’s land mass; coastal states contain little to no such formations. The economic effects are similarly distributed. In Pennsylvania, the BLS reported that between 2007 and 2012, the natural gas industry drove significant increases in both wages and jobs, overtaking the state’s historic coal industry, all in the face of the 2008 financial crisis. To states like Pennsylvania, the autonomy they derive from Section 1422 is of the utmost economic and political importance.

Opponents of this decentralized enforcement framework are quick to highlight fracking’s worrying environmental impacts. Of rattling concern are the tremors caused from the fracturing and deep-surface injection of fracking fluids, which scientists found may be signs of larger quakes to come. Another 2016 EPA study found that fracking “can impact drinking water” in “some circumstances.” Timid in its wording, the prospect of drinking water contamination led one former EPA scientist to publish a peer-review study confirming fracking’s contribution to drinking water contamination in the Pavilion, Wyoming. Unsurprisingly, Governor Cuomo cited the goal of “protecting the drinking water of millions of people” as a foremost consideration when pushing for New York’s permanent ban on fracking.

Interstate contamination

At first glance, the current regulatory scheme appears to be working as intended. States that stand to benefit from fracking are free to create favorable conditions; Ohio’s Republican legislature created provisions allowing for fracking operations in state parks. On the contrary, states that wish to protect their residents against the well-documented ills of fracking have the prerogative to do so. However, this splintered and isolated view of environmental regulation ignores the realities of negative externalities. Fracking regulations may start and end at the state line, but pollution knows no borders.

Take Maryland, whose Attorney General sued Chesapeake Energy in 2011 after thousands of gallons of fracking fluids were released from natural gas wells in Pennsylvania. These fluids made their way into a tributary of the Susquehanna River that flows through Maryland. The release also notes that the river supplies drinking water to 6.2 million individuals and serves various endangered species. Six years later, Maryland became the third state to ban fracking, but it’s clear this would have done nothing to stop the 2011 incident. 

As combating climate change becomes more and more pressing, and coal power plants rapidly close, the United States must make a decision: build up gas infrastructure or accelerate the shift toward renewable alternatives. States may very well continue to build gas infrastructure that will remain for upwards of 30 years in the absence of any clear federal action. Still, one thing is abundantly clear. States, hailed as the laboratory of democracy, have amounted to an experimental failure in their protection of the environment. 

In a time when a global, united front is necessary to combat climate change, the last thing the world needs is such a hydraulically-fractured republic. 

Leave a Reply