Obama Administration to Industry: Frac-As-Usual on Public Lands

With the release of its revised draft rules for hydraulic fracturing, BLM signaled to industry that it’s business-as-usual when it comes to oil and gas drilling and fracking on public lands.

And it also signaled to the people who live, go to school, get their drinking water from, and work on or near public lands that they’ll be protected by the same outdated, inadequate rules that have been on the books for more than 30 years. Which is to say, they won’t really be protected at all.

The impacts are far-reaching. The rules would not only be used to oversee fracking in many of the country’s last remaining wild places, but also in places that supply drinking water for millions of Americans, including private wells (when the federal government owns mineral rights below private property) and watersheds that supply drinking water for Washington, D.C., Denver, and parts of California’s Monterey, Ventura and Santa Barbara Counties. And oil and gas companies have already leased an area of public land larger than the entire state of Florida.

This new proposed draft rule is largely unchanged from a version that was leaked earlier this year. As I and my colleague, Matt McFeeley, blogged then, the leaked draft was even weaker than the proposal released in 2012. The changes between the 2012 proposal and today’s release include:

• Limiting the scope of the rule, so that it applies only to hydraulic fracturing and not to other forms of well stimulation, like acidizing – which can pose similar risks.
• Not requiring operators to submit the results of tools that are used to tell how effectively the steel casing and cement are isolating drinking water, called cement evaluation logs (CELs), until *after* the well is drilled and fractured, or in some cases not requiring them to even use these tools in the first place. This defeats the purpose of CELs, which are used to identify and fix any problems with the well that may endanger drinking water *before* fracturing begins.
• Allowing operators to submit generic, rather than well-specific, information to receive multiple permits to frac. This means that regulators will be making decisions to issue permits without critical information about drilling and fracturing operations, and therefore without a complete understanding of the environmental risks.
• Gutting chemical disclosure requirements by allowing industry to continue to keep the identity of some fracturing chemicals a secret from both regulators and the public, thereby preventing them from fully understanding the risks to the environment and human health.

However, this new draft also contains some potentially problematic changes that didn’t appear in the leaked draft. One such change is a significantly revised “variance” provision, through which big chunks of State or Tribal lands that overlie federal minerals could be exempt from parts or all of these new rules, as long as the State or Tribe has or proposes rules that the BLM claims, “meets or exceeds the objectives” of the BLM rules. This could mean that not all public lands are provided the same level of environmental protection.

Finally, as we feared, the scope of the draft rules remains unchanged, meaning that entire categories of regulation critical to reducing environmental risk, like well design and construction and waste water handling, will likely not be updated at all.

We will continue to analyze these new changes and the possible implications in the coming weeks.

But one thing is clear: It’s business-as-usual on public lands, both for the oil and gas industry and for the American people who must live with its impacts.