In 2005, the newly re-elected Bush/Cheney Administration settled in to a second term eager to drastically reshape our nation’s energy policy. Vice President Cheney held a series of closed-door meetings with energy companies, forging a direction so favorable to drillers that the exemptions from our bedrock environmental laws crafted therein became known as the Halliburton loopholes. One of those exemptions (there are a total of seven) declared that the Safe Drinking Water Act (SDWA) would not apply to hydraulic fracturing. Originally passed by Congress in 1974, the SDWA is the main federal law that ensures the quality of Americans' drinking water, especially underground sources of drinking water.
During the legislative debate in Congress over the 2005 Energy Policy Act, key policymakers chose to hone in on the use of diesel fuel in the fracking process. Diesel is mainly used as a lubricant designed to aid the flow of fracturing fluids and methane up and down the well. Despite the Administration’s push for a broad fracking exemption, Congress eventually chose to still allow the SDWA to govern fracking only where diesel is used. This did not stop the industry in 2005-2009 from injecting 32 million gallons of fracking fluids containing diesel in wells in 19 states. But it did prompt the Environmental Protection Agency (EPA) to provide some guidance to their regional offices and states on how best to permit diesel use in fracking.
The diesel guidance represents an important step toward creating the right regulatory framework for responsibly managing natural gas development. But it could be better. Part of the problem is defining diesel. I once had a professor who taught me that the most important portion of any statute is the definitions section. That’s where the rubber hits the road-where we glean the law’s breadth. The EPA offers several possible definitions regulators can use. Some define diesel in terms of its application in vehicles while others describe complicated permutations of hydrocarbon molecule chains. The EPA would be better off simply banning diesel completely.
First, diesel causes cancer. Second, allowing diesel only under certain circumstances creates major monitoring and compliance difficulties. Third, figuring out which form of diesel is allowed and which is not is a lot like squeezing an overstuffed peanut butter and jelly sandwich. Sure, you’ll get to enjoy some of the gooeyness, but much of it spills over the bread crusts. That is, no matter how you try to regulate it, some will manage to squeeze around the edges. As soon as EPA defines diesel, industry simply rearranges the formula. So, it just doesn’t make sense to regulate diesel.
Here’s what we need. In addition to a ban, we need the EPA to go forward with a formal rulemaking. Providing guidance is fine, but requiring compliance will better protect our drinking water supply. Also, we should pursue those companies that broke the law by using diesel between 2005-2009. Finally, and most importantly, we need to tell the EPA what we think. Comments will be accepted through July 9. Please join us.
