It's back to your granddaddy's oil and gas days in the Land of Enchantment. The state's oil and gas regulator is once again cozy with industry.
And when it comes to requiring the disclosure of the chemicals used in fracking, New Mexico is the laughing stock of America's oil and gas producing states.
Before the Governor Martinez roll-everything-back-era, the state had started crawling out of the dark ages by requiring some common sense safeguards like making sure toxic oil and gas waste pits were properly lined to protect soil and groundwater.
Yesterday, despite testimony that other states and the industry-friendly Department of Energy are trending toward the full and public disclosure of all the chemicals and additives used in fracking operations, New Mexico's Oil Conservation Commission delivered a big fat nothing. They adopted a rule requiring nothing more of industry than what companies already report on Material Safety Data Sheets (MSDS).
MSDS are required by the Occupational Safety and Health Administration to protect workers. But even the DOE knows that
“the restriction to MSDS data means that a large universe of chemicals frequently used in hydraulic fracturing treatments goes unreported. MSDS only report chemicals that have been deemed to be hazardous in an occupational setting……MSDS reporting does not include other chemicals that might be hazardous if human exposure occurs through environmental pathways.”
— Secretary of Energy Advisory Board Shale Gas Production Subcommittee 90-Day Report, August 18, 2011
One of the most profound statements in the DOE reports reads:
“The Subcommittee believes that the high level of public concern about the nature of fracturing chemicals suggests that the benefit of immediate and complete disclosure of all chemical components and composition of fracturing fluid completely outweighs the restriction on company action, the cost of reporting, and any intellectual property value of proprietary chemicals.
The Subcommittee believes that public confidence in the safety of fracturing would be significantly improved by complete disclosure and that the barrier to shield chemicals based on trade secrets should be set very high.
Therefore the Subcommittee recommends that regulatory entities immediately develop rules to require disclosure of all chemicals used in hydraulic fracturing on both public and private lands.”
So what did New Mexico do? It immediately ran out and developed rules to require…….nada. Nothing — with the exception of making staff develop a form that companies have to fill out and submit to the state. And the information that they have to fill out is what's already on their MSDS.
The disclosure rule that was adopted yesterday was proposed by industry and supported by the Oil Conservation Division. Earthworks' OGAP proposed meaningful disclosure rules, which both industry and OCD opposed. Interestingly, the OCD opposed OGAP's disclosure proposal stating it was too much work.
New Mexico state government probably believes they’re doing the oil and gas industry a favor by allowing it to hide its toxics from the public. But they’re wrong.
The oil and gas industry has justifiably lost the public’s trust on fracking and its community and environmental impacts — a fact which industry acknowledges explicitly and implicitly.
So they’re trying to regain that trust. And although they’re capable of talking a good game regarding the need for transparency, they seem constitutionally incapable of translating talk into meaningful action.
Government and industry need to remember that disclosure is not for the industry. And it's not for the regulators. Disclosure is for the public. It's for Americans who live with oil and gas and the communities that are bearing the impact of energy development.
Unless rules require companies to fully disclose chemicals and notify landowners and communities in advance of fracking operations it will be difficult, if not impossible, to establish the baseline water quality of their drinking water. Without that, landowners can’t prove that drilling toxics polluted their water.
In other words, industry opposition to complete public disclosure is about avoiding blame when drilling degrades water quality.
In times past, this sort of flimflammery might fly. And maybe it will here too, at least in the short term. But what’s changed, what has caused an increasingly nervous gas industry to even discuss “transparency”, is growing national opposition to fracking. All fracking.
And so while drilling toxics disclosure is now New Mexico’s decision — thanks to a loophole in the federal Safe Drinking Water Act inserted at the behest of ex-Halliburton CEO Dick Cheney — it might not be for long as public outcry against industry irresponsibility grows.
The New Mexico Oil and Gas Conservation Commission adopted a draft final rule yesterday. There will be some i-dotting and t-crossing and then the final rule will be officially posted in January.