Regulate Like it’s 1988: Senate Committee’s Plan to “Modernize” Oil and Gas Industry Calls for a Return to 1980’s Standards

Despite technological advances and increasing use of techniques like hydraulic fracturing in the past few decades, the oil and gas industry is subject to regulations enacted in the 1980’s. In March, the Bureau of Land Management (BLM) released a much-needed complement to the existing rules, which have not been updated since 1988. In response to growing public concern about fracking, the BLM’s final rule, Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands, provides minimum standards for all states to follow, including: best practice requirements in construction of wells, protecting water supplies, managing flow back in environmentally responsible ways, and providing public disclosure of the chemicals used in the processes. The BLM’s fracking rule is a definite step in the right direction, but it’s not sufficient to protect our public lands or the communities that rely on them.

On June 9, the Senate Committee on Energy and Natural Resources met to discuss Senator Murkowski’s broad energy bill that will, according to her, “modernize our energy policies.” However, the BLM’s minimal rule is apparently too modern for members of the Committee, because — under the guise of “reform”— two proposed bills that would return the new regulations back to 1988 standards have been introduced.

First, Senator Hatch of Utah proposed Senate bill 15, “Protecting States' Rights to Promote American Energy Security Act,” which would grant individual states complete control over oil and gas industry regulations. Then, Senator Murkowski sponsored Senate bill 1230, which would require the BLM to enter into a memorandum of understanding (MOU) with a state if the Governor of the state requests. The MOU’s would allow the state to have control over the regulations, negotiating and compromising the minimum federal standards, rather than strictly following the BLM requirements.

At the hearing, Senator Murkowski said, “I think the states have done good jobs… and we need to recognize that.” Unfortunately, this belief fails to acknowledge numerous fracking-related accidents, groundwater contamination, and other damage that has occurred due to State's lack of proper—or any at all—regulations. The inadequacy of state regulations is clear: contaminated freshwater sources in West Virginia; dangerous levels of methane in drinking water in Texas; earthquakes in Ohio, Illinois, Kansas, Texas, Oklahoma and others; air quality and stench complaints in Texas; petroleum hydrocarbons in Wyoming’s groundwater; more than 600 spills in Colorado—involving more than 674,000 gallons of produced water and more than 102,000 gallons of oil, causing benzene contamination in water sources; employee deaths at drilling sites in North Dakota; and public health risks throughout the country due to inadequately constructed drilling sites. These are just some examples of the ways states have suffered due to poor regulations.

The Committee’s support for returning to state control over fracking complements the industry’s lawsuits filed against the BLM, seeking to block the rule. The same day the final rule was released, industry groups and affected states filed separate complaints against the U.S. Department of the Interior and the BLM, arguing that the Safe Drinking Water Act and Energy Policy Act remove fracking from BLM's jurisdiction, and alleging the agency failed to consider the compliance cost of the rule. Earthworks, and our friends, have intervened in the lawsuit to support BLM. The state and industry challenges are not likely to succeed in court because the BLM does have statutory jurisdiction over fracking, and the industry compliance costs are negligible.

The long-awaited BLM rule will take effect June 24, 2015. It provides coordinated standards between states to improve efficiency, reduce spills and contamination of our freshwater resources. It will also provide BLM and the public with better informational tools to protect public health and the environment. Instead of embracing the BLM’s modern updates, the committee’s plans to “reform” the 30-year-old regulations are merely plans to regulate like it’s 1988.