Illinois fracking rules update: industry self-pity winds up while the clock winds down

On Tuesday, the General Assembly’s Joint Committee on Administrative Rules once again postponed its decision concerning the Illinois fracking rules, until November 6.   They are cutting things pretty daredevil close:  Illinois law provides that agencies have exactly one year to complete a rulemaking after issuing the first draft – making November 15 the drop-dead date for the fracking rule.  If JCAR recommends changes to the rules on the 6th (as opposed to outright prohibiting them), time will be pretty tight for the Department of Natural Resources to respond and issue the rule in final.

As we have said many times in the past and will say again, Illinois would be a saner place if that deadline – and the fracking legislation that led to it – could be replaced by a moratorium on fracking, whose risks are both significant and not fully understood.  But like it or not, the deadline is coming up, and the question is how the endgame can most sensibly play out.

One might think that the limited time available would inspire everyone to buckle down and get serious about wrapping the process up in a rational way.  What it seems to have inspired instead is a fast and furious onslaught of whining, denial, and litigation revenge fantasies on the part of the oil and gas industry, which has not taken kindly to the DNR’s revision of the rules to shrink some loopholes and better implement the statute’s protections, limited though they may be.   Apparently seizing hope from a passing reference to litigation at Tuesday’s JCAR hearing (essentially, DNR Director Marc Miller said that the Department would follow the law and not issue permits without rules in place unless a court told them otherwise), a group of landowners the next day ran to court with a hail-Mary class action lawsuit in Wayne County demanding just that.  And Tuesday evening, a newly-minted industry spokesgroup gathered at the White County fairgrounds to complain that the DNR is mean and unfair because it’s not like Indiana, which hands out drilling permits like candy at Halloween and doesn’t ask hard questions.   

So with the industry pity party winding up and the rulemaking clock winding down, it’s a good time to clarify a few things about the process and where it’s going.

First, there really is not an option of DNR issuing permits before the rulemaking is completed in any way that will meet the intent of the law.  Sorry, there just isn’t.   The reason we have rules is to define how the statute will be implemented in practice.  Without them, everyone is pretty much flying by the seat of their pants on some pretty critical questions that DNR was specifically told to write rules about.  Things like how to address earthquakes caused by underground waste disposal, how public hearings are going to be run, how permit modifications will be governed, how to get information about chemicals to doctors in an emergency, and how enforcement will go down if drillers violate the rules.  While we can understand why industry would prefer that such things remain murky and undefined, it’s not acceptable to the rest of us, and not consistent with the statutory directive to define essential procedures via rulemaking.  Industry may be having trouble letting go of its fond memories of the old Oil & Gas Act and the minimally regulated fracking free-for-all it allowed prior to the 2013 statute, but that train has left the station.

Second, getting JCAR to prohibit the rules will not make the statute go away.  It will simply delay its implementation.  Of course, as far as we’re concerned, delaying the start of fracking is a fine idea in principle – calling a halt to the state’s ill thought out fracking gold rush is, in the larger sense, exactly what we should be doing.  However, we’re also aware that sending DNR back to the drawing board to go through the entire rulemaking process over again, so it can reach a more or less similar result, is not a particularly sensible way to achieve that larger end.  By the same token, if industry is assuming it will get a result substantially more to its liking the second time around, it may be deluding itself.  For all their rhetoric about the revised draft rules being inconsistent with the statute, the truth is pretty much the opposite.  As we explained to JCAR in a set of supplemental comments, DNR’s revisions actually fixed a number of first draft provisions that badly undercut the statute’s public protections.   We have every reason to expect that if DNR ends up having to try again, it will continue to do its job and put forth rules that support rather than undermine the law.

And finally, if we’re wrong, and if a post-election DNR were to fold its cards on a second go-round and issue a set of rules that satisfies industry but not the statute’s requirements, citizens are not without recourse.  If a future iteration of the rules is incompatible with the statute, citizens can ask JCAR to address the problem.  And if worst comes to worst, they will have the option to take legal action.  While we would rather than no fracking be happening at all, we will do what’s necessary to ensure that what does happen is governed by the set of stringent rules that the statute requires. 

All in all, DNR has made the best of a bad situation:  it pulled its pretty awful first draft out of the fire, and went through a meticulously thorough process of considering public input, law, and science in coming up with the much improved draft pending before JCAR now.  Until such time as Illinois comes to its senses and calls a fracking time out entirely, sending the Department back to square one so it can do the same thing over again will achieve very little except further eroding public confidence in the process.