This post was co-authored with Alan Septoff.
The most fundamental truth uncovered in Earthworks’ just-released report Breaking All the Rules: the Crisis in Oil & Gas Regulation, is that states are falling tragically short in enforcing their own oil and gas development rules.
It is good to see that John Hanger, ex-Secretary of the Pennsylvania Department of Environmental Protection (DEP), does not argue that truth.
As a result of this inadequate enforcement—a problem in all of the six states we reviewed—Breaking All the Rules concludes that so many problems with oil and gas development are left undiscovered, undocumented and unresolved, the public cannot have confidence that their health, air, and water are being protected.
Again, John Hanger does not argue against that conclusion. As a former regulator, he knows how complicated it is to oversee an industry based on a “drill and permit now, figure out how to oversee later” approach. Even with an increase in the number of inspectors and improved reporting and data protocols—facts that Earthworks acknowledges in the report.
John Hanger also argues that we should not have looked at all producing wells, since it is primarily shale gas wells “that are the focus of attention and concern.” However, all active wells require oversight. Production may be minimal, but potential contamination issues still exist from produced water and leaks, especially since the older equipment at these sites may be more prone to corrosion and failure. And when the DEP wrote its recommended inspection policy—still the basis for current activities—shale gas wells did not even exist.
John Hanger’s response to the report is also based on the idea that because DEP increased its enforcement efforts from 2010 to 2011, our use of 2010 data skews the results so much that the report isn’t useful.
As we stated on on page 23 of the full report, because 2011 data were not available for all states—and Earthworks wanted to do a comparable analysis across six states—we relied primarily on 2010 data. (For example, DEP’s 2011 data on wells, permits, and other aspects were not completely available to the public until July 2012.) Nonetheless, we did include 2011 data where available — in the full report within table A6-1 and in the Pennsylvania-specific report prominently on page 2:
“In 2010 DEP failed to inspect more than 82,000 or 91 percent of active wells. In 2011, more than 66,000 active wells (86 percent) did not receive DEP oversight.”
But even if the numbers shift a bit in some months, the key question that was the impetus to this research remains:
“Can the public have confidence that their health, air and water are being protected?”
Citing different numbers does not even begin to answer this question because the Pennsylvania DEP addressed its enforcement inadequacies in the same manner that allowed the problem to develop in the first place: DEP looked at the amount of drilling as something outside their control, and defined their ability to govern that drilling in terms of the limited resources available to them.
We hope that anyone who reads Breaking All the Rules—including regulators and policymakers—takes away the core lesson learned from an in-depth analysis of regulatory agencies’ own data:
Right now, states take the amount of drilling as given, and then figure out how they can best do their jobs with scarce resources available.
That equation must be reversed. The amount of drilling that takes place should be contingent upon what resource strapped state agencies can safely regulate — ensuring that public health and the environment are fully protected as top priority.
If a state enforcement agency can't guarantee that the next proposal for a well, compressor station, or other facility will not cause harm (and that it will be properly overseen during construction and operation), they shouldn't permit it. Plain and simple.
In the end, protecting communities isn't a numbers game, and solutions to very real and very serious problems in the gas patches of the United States won’t be found comparing one year’s marginally improved inspection and enforcement performance to another. (Though any meaningful improvement would be welcome.)
What it will require from regulatory agencies is that they revisit their rules in a public and transparent manner to determine what constitutes enforcement that credibly protects the public and the environment—and then allow only the amount of development that meets that strong enforcement standard. And no more.
A continued rush to drill without such change will continue to harm communities and result in even more violations and problems on the ground—a scenario that the regulatory agencies themselves should want to avoid.
