Illinois fracking rules update 2: state scraps public process in secret backroom deal with industry
The long process of developing regulations implementing the Illinois fracking legislation is finally over. The Joint Committee on Administrative Rules on Thursday voted 11-1 to approve a revised version of the rules.
We would love to show you exactly what’s in this official new version, which was approved in a committee process you would have missed if you blinked. But unfortunately, we can’t, because we – like everyone else in this state except JCAR, Illinois DNR, and some unidentified industry representatives – don’t have it to give you. That’s right. After a year-long legally mandated open and transparent rulemaking process, in which DNR considered a record number of public comments in developing a revised draft; that draft has been hacked up in a backroom deal making party to which the public was decidedly not invited. It’s Illinois politics at its finest – still wondering why people are so pessimistic and cynical about our government?
Sadly, this is not just about a bad process, but about a bad process on which Illinois communities’ health and quality of life depend. It’s the process behind a set of rules governing an activity that has been causing extensive air and water pollution and earthquakes in other states; that releases large volumes of methane, a potent greenhouse gas; and that has been correlated in scientific studies with cancer and birth defects. And it’s a process that the public has heretofore been deeply and vocally involved in. Citizens flooded DNR with tens of thousands of comments expressing concern and strong interest in all aspects of these rules, but our government responded in the end by giving them the mushroom treatment.
What happened today is an excellent illustration of why we have maintained from the beginning that the sensible course of action would have been to put in place a moratorium on fracking, allowing the state time to think through carefully and deliberatively the risks involved and the extent to which they might be mitigated through regulation. Instead, the General Assembly decided to feed the problem into the Springfield sausage making machine. The environmental coalition, recognizing that fracking was proceeding virtually unregulated at that time, made the best of it. We were able to secure some significant protections to address a number of the more egregious problems being caused by fracking around the nation: controls on air pollution more stringent than federal law, requirements to store contaminated flowback water in tanks and not open pits, broad chemical disclosure requirements, pre-and post-frack water testing, a presumption of legal liability for fracking operators, and rigorous public involvement requirements including permit hearings and a citizen suit provision.
The rulemaking process that followed passage of the statute was rocky, but ultimately functioned as it was supposed to. When DNR’s initial draft undercut the statute’s protections in various ways, citizens turned that situation around using the democratic, participatory, and more or less transparent notice and comment rulemaking process required by Illinois law. The revised draft of the rules was far from perfect, but DNR’s public response was thoughtful and well documented, and fixed many of the problems the public comments had identified.
And thus, the democratic process largely worked – until it walked into a smoke-filled room and slammed the door. We knocked on that door pretty persistently, reaching out to staff and submitting extensive comments to JCAR about our priorities and industry’s rumored concerns. In the spirit of the notice and comment rulemaking process, we were transparent about our communications with JCAR, posting our comment letters in this space. No one else involved, unfortunately, saw fit to do the same, and the door remained resolutely shut.
While we don’t know much at this point, we know that industry and DNR officials sat down at JCAR together over the past few weeks to hammer out rollbacks to the revised draft. We have been told unofficially of some significant rollbacks that are likely. We know that some industry lobbyists – who somehow seem to know a darn sight more than we do right now – are doing an end zone dance. We also know we will be able to definitively assess the extent of the damage within the next week or so, as the final version is anticipated to be published in the state register sometime before November 15, the statutory deadline.
Fortunately, the statute remains a firm limit on how much actual damage can be done in the regulatory process. The state can serve up its signature dish of sausage with a side of mushroom treatment all it likes, but the protections we fought for and succeeded in getting into the statute are not going to go away. And fortunately as well, the statute and regulations contain the extensive public participation requirements we insisted upon, which will serve as the essential tools of continuing public oversight in the days ahead.
We will be following closely as events unfold at DNR and around the state. Our coalition will track as best we can the implementation of the statute and regulations, and take what steps we can to ensure the public is protected to the maximum possible extent. DNR is now faced with a formidable challenge as it prepares to field a possible slew of permit applications to which it has only 60 days to respond, likely in tandem with the transition to the Rauner administration. We can hope that all involved in the transition will work cooperatively and effectively, and that the new administration will employ all measures available to protect the public. But one way or the other, the public will be watching.