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Last week, Senator James Inhofe (R-OK) introduced S.2268 the Fracturing Regulations are Effective in State Hands Act (FRESH Act).  The bill would remove all authority from the federal government to regulate hydraulic fracturing.  Even on Federal lands.  Instead, states will enjoy the sole province of fracking regulation.  Honestly, we should have seen this coming.  For months now, many members of Congress have touted the benefits of local fracking regulation and complained about federal government overreach.  A number of states with prevalent hydraulic fracturing industries have regulated resource extraction for generations.  Texas, Wyoming, and Colorado, for example, contain resource rich lands and populations very familiar with oil and gas development.  Along with the extensive experience some regions have in this arena, many state and Congressional officials argue that differences in geology, geography, and hydrology suggest that the more local the regulator- the better.

While there’s no question that geology varies widely, this does not mean that local officials do the best job regulating.  In fact, a recent report released by Earthworks documents how inadequately Colorado’s Oil and Gas Conservation Commission enforces their rules.  In some sense, it’s just not their fault.  Sure, there is the issue of the revolving door between industry and regulators.  This creates an appearance of coziness that potentially leads to conflicts of interest.  But the problem does not just seem to be whom the regulators are as how few of them there are and how few resources they have available.  Over the last ten years, Colorado has nearly doubled their number of wells to more than 43,000. In that time, they have also doubled the number of inspectors…to 15.      

Aside from a serious lack of inspection personnel, inconsistent enforcement is made worse by inadequate fines.  In some cases, the maximum fine amount fails to compel compliance since gas revenues exceed the statutory cap on penalties.   The only sanction that seems to work best involves actually denying or revoking drilling permits.  The rush of natural gas drilling- particularly the Eastward push toward higher population areas without substantial histories with extractive industries- leave many local officials overwhelmed in terms of expertise and workload.  The technological advances of high-volume horizontal hydrofracturing only have become widely used in the last few years, leaving many inspectors racing to catch up.  What is more, most of the shale plays across the country lie deep beneath the borders of contiguous states that suggests a need particularly well suited for federal address. 

Supporters of the FRESH Act argue that the federal approach to regulation is tantamount to a “one size fits all” solution.  Not true.  More likely than not federal regulation will merely set a floor below which industry practice must not fall while allowing some general flexibility for state regulators to account for regional differences.  As it is, almost all regulation of oil and gas happens at the state level since the industry already enjoys exemptions from our most important federal environmental laws.  So, even without the FRESH Act, the federal government already has very limited authority to regulate in this area. 

In some cases, state regulators simply provide cover for the industry leaving residents with no recourse except the federal government.  This happened in Pavillion, WY, where effected communities were essentially ignored by the state agencies designed to protect them. Open hostility to the Environmental Protection Agency (EPA) from state regulators in Texas who, at least in principle, are supposed to share a common mandate to protect communities from harmful pollutants underscores not just antipathy for their own mission, but also a turf war vitriol that should remain beneath the dignity of dedicated public servants. 

And that’s what this is really about: petty squabbles about who’s part of the “in” crowd, who got asked to the big dance, who plays better in the sandbox- I better stop lest I begin to mix metaphors.  Anyone who saw The Simpsons Movie knows what I’m talking about.  The film satirically depicts the EPA as a large squad of paramilitary thugs armed with automatic weapons, attack helicopters, and a dome hemisphere large enough to seal off the entire town of Springfield.  Those who believe the EPA’s threatens rather than protects see conspiracies and hoaxes everywhere the agency appears.