Cry me a polluted river: industry complains the revised Illinois fracking regulations are too clear about public protections

Well that was inevitable.  Now that the Illinois Department of Natural Resources has fixed some of the grossest deficiencies in the proposed fracking rules, the ones that gutted the statute’s protections, industry is not happy at all.   They are complaining loudly to the media that the Department’s regulations are now too specific and detailed about how to implement the statute’s protections, and issuing veiled threats that if they don’t get their way, they will take their marbles and go home. 

It’s a little hard to know where to begin responding to such industrial-strength brass.  We are hearing this from an industry that is being allowed to rake in enormous profits from fracking despite a steady drumbeat of scientific studies linking it to severe public health risks.  It’s an industry that by all rights should have been ordered to hold off altogether pending further risk evaluation, but instead is being allowed to expand full throttle – and is now complaining that the application process has too much paperwork.   And we’re hearing it from the exact same people who have been railing for months on end about how they need more “regulatory certainty” in order to move forward.  Apparently, they meant regulatory certainty only about stuff they like, but murky vagueness and loophole opportunities when it comes to the statute’s public protections.  As to the marbles threat – if they’re serious (and unfortunately, we don’t believe for a second they are), then they should go ahead and let the door hit them on the way out.  Any industry that cannot manage to operate under a ground level set of public protections and transparency requirements has no business operating at all.

But a full appreciation of the depths of wrongheadedness at work here requires a look at the specifics.  An industry coalition has provided to the General Assembly’s Joint Committee on Administrative Rules, which is currently evaluating the revised draft, a laundry list of more than 60 provisions it takes issue with.   We submitted comments as well, listing problems with the revised draft but also identifying specific instances where the Department fixed portions of the initial draft that eviscerated statutory protections.  In an apparent attempt to turn the tables on environmental organizations’ well-documented concern that the initial draft conflicted with the statute, industry is now claiming exactly the same thing about the revised draft.  

Turnabout, however, is fair play only when the facts back it up.  Industry’s contentions regarding supposed inconsistency between the revised rules and the statute serve only to demonstrate a remarkably deficient understanding of the function of administrative rules, and the nature of statutory interpretation.  

The industry coalition’s complaints fall into roughly three somewhat overlapping categories.  The first category concerns places where the regulations provide a level of specificity not found in the more general requirements of the statute.  For example, the statute allows the Department to issue a permit only when it finds that operations will be conducted “in a manner that will protect the public health and safety and prevent pollution or diminution of any water source.”  Industry is unhappy that the draft regulations specify a set of eight kinds of information the Department will consider when deciding whether the public and its water resources are sufficiently protected.  Industry is also upset that the draft regulations define a number of important terms left undefined in the statute – explaining what is meant by “economically unreasonable” gas capture measures, water sources that are “wholly contained” on one property and hence exempt from setbacks, and so forth .  The second category of industry complaints has to do with requirements to provide various types of information to the Department in aid of its permit review and oversight – for example, plans describing how it will manage its air emissions and radioactive hazards – which are not expressly enumerated in the statute.  And third, industry complains that some regulatory provisions address subject matter discussed during legislative negotiations two years ago, and that those provisions conflict with their lobbyists’ recollection of what was said. 

Of first order, industry’s complaints that the regulations are more specific than the statute fail to recognize that the very purpose of administrative regulations is to be more specific than the statute.  Regulations define the way in which the statute’s provisions will be implemented on a day to day basis – how exactly decisions will be made, what terms mean on a practical level, and how general requirements will play out in specific situations.   If all regulations did was parrot the statute, we could write them with a Xerox machine rather than a notice and comment process; and they would be useless.

The provisions that industry is complaining about, in fact, are good case studies in why added regulatory specificity is necessary.  For example, the statutory requirement that the Department ensure that operations will be conducted “in a manner that will protect the public health and safety” says nothing about how specifically regulators will actually go about making that decision.  What information should be considered, and what factors should the decision by judged by if the permit ends up in court?  Industry is particularly in a knot about the revised regulations specifying that cumulative impacts of other fracking operations in the vicinity should be taken into account – thus demonstrating exactly why it was essential for the Department to make that clear.   Of course industry wants regulators to evaluate the public health impacts of its permits in a vacuum, because available evidence shows that cumulative impacts are where a lot of the problem lies.  In rural Wyoming, for example, where little is going on except an abundance of fracking, ozone spikes worse than any in Los Angeles are sending people to the hospital with asthma attacks.  One fracking well all by itself isn’t causing that problem, it’s the cumulative impact of the wells collectively.  

The same goes for the definitions of undefined terms.  “Economically unreasonable” is a really important term, because it defines when industry can waste gas by flaring it rather than capturing the gas and using it; but the only statutory definition of “economically unreasonable” consists of yet more undefined terms (“are not cost effective based on a site-specific analysis”).   So if regulations don’t clearly define the term, it can become a huge loophole – industry could use it like a magic incantation to make the gas capture requirement go away, without actually proving anything.  The Department has appropriately put some meat on the bones by defining what operators actually have to show to get an exemption.

The other principle that industry conveniently ignores is that regulatory agencies like the Department are allowed to develop whatever rules are necessary to enable them to do their job effectively and carry out the statute’s purpose.   In fact, that’s why the statute specifically says, “The Department shall have the authority to adopt rules as may be necessary to accomplish the purposes of this Act.”  In view of that pretty clear grant of authority, industry is on shaky ground claiming that the Department can’t specify by regulation the particular types of information it needs, like plans concerning management of air pollution and radioactive material, and what happens when they don’t get it. 

Finally, industry’s notion that the scope of the Department’s authority is circumscribed by lobbyists’ recollection of legislative sausage-making that happened two years ago would be laughed out of any first year law school classroom.   It’s pretty basic law that where the words of a statute are not ambiguous, they govern regardless of “legislative history” about how those words were developed.  When there’s ambiguity, you can sometimes look at official legislative documents, such as floor speeches and committee reports, to try to understand what legislators intended.  But self-serving recollections by one side’s lobbyists about who said what to whom and why?  Not so much. 

None of this is to say that we think the revised draft is perfect, or perfectly consistent with the statute, not by any means.  We have identified a fairly significant list of deficiencies as well, which we hope JCAR will turn its attention to in the days ahead.  And for that matter, we would love if it were possible to show that the real intent of the statute was to impose a moratorium on fracking, which from our perspective is the only sensible path forward.  But we recognize both the limits inherent in the words of the statute, and the scope of the Department’s authority to implement them through regulation.  We only wish industry would do the same.