Illinois poised to lead the nation in strong fracking standards

Six months ago, the notion that Illinois could step forward as a national leader in regulating the risky and problematic process of horizontal hydraulic fracturing would have provoked deep skepticism.  And the idea that this could be done by bipartisan consensus, with industry and the environmental community working together, would have sounded like a pipe dream.  

Yet today, with the introduction of the negotiated bill HB2615, our state is poised to do just that.  This legislation is the product of an unprecedented stakeholder process that brought together representatives from all of the concerned state agencies, the drilling industry, and the environmental community, as well as legislators from both sides of the aisle.  No compromise is ever perfect, and this bill is certainly no exception.  But in its current form, it would represent the strongest and most comprehensive law governing hydraulic fracturing – or “fracking” – in the nation.   While some other states have put in place bits and pieces of the kinds of protections that are essential to protect the public, no state has yet put together as many of the essential elements of a strong regulatory scheme.   In most other states where this problematic process has taken off, regulators have been swamped by a gold rush mentality, convinced by the extortionist rhetoric of industry lobbyists that even modest attempts to protect the public will drive away their chance of prosperity. 

The result, in states like Pennsylvania, Ohio, Colorado, and North Dakota, has been a documented steady onslaught of devastating but predictable consequences of under-regulation.   Horizontal fracking, a relatively new process for getting oil and gas trapped in layers of shale out of the ground, generally involves injecting more than a million gallons of water laced with chemicals – often toxic – at high pressure as far as 10,000 feet below the surface, to crack and hold open the shale so oil or natural gas can flow out.  Not terribly surprisingly, this process has led to surface and ground water contamination, methane leaking into the water supply and people’s homes, and occasionally earthquakes when the vast volumes of wastewater are injected underground for disposal. 

Industry is now eager to start horizontal fracking in Illinois, which sits on top of the oil-and-gas-rich New Albany Shale, and right now has nothing preventing it from doing so, except the regulatory uncertainty created by pending legislative efforts.  As NRDC has made clear previously, we would have strongly preferred that the General Assembly place a moratorium on the whole deeply dicey business of horizontal fracking until its public health risks can be fully studied and addressed.  Last fall, our coalition of Illinois environmental organizations made significant headway toward that end, racking up co-sponsors for a 2-year moratorium.  However, it has since become evident that the political winds are strongly blowing toward a regulatory regime -- and that the current negotiation process is largely equivalent to what the moratorium bill would have mandated.   Given that reality, and the need to take immediate steps to protect Illinoisans, NRDC chose to embrace Plan B, stepping into the stakeholder negotiation to seek the most stringent science-based regulation possible at this juncture.

The result is a bill that, for all of its imperfections, is the strongest around.  It pulls together a suite of safeguards that go a long way toward holding the industry accountable for the risks inherent in horizontal fracking and requiring that they be minimized.  Among other things, HB 2615 provides for:

• Extensive regulation of the drilling process, mandating numerous best practices.
• A requirement that all waste – which includes “flowback” of all the chemical-laced water pumped into the ground – be stored in closed tanks, rather than the pits that chronically leak and overflow elsewhere.
• Restrictions on venting and flaring of natural gas (which contains the potent greenhouse gas methane, as well as other harmful constituents, and turns to smog).
• A ban on the dangerous practice of injecting diesel (which contains carcinogenic hydrocarbons).
• Required disclosure of all fracking chemicals to the public before operations commence (and limits on industry’s ability to claim that this information is a trade secret).
• Citizen rights to public hearings concerning proposed permits, and to appeal permits that are granted.
• Citizen enforcement against violations of law or permits.
• Provisions to protect the state’s water supply, including authority to deny permits as necessary during drought conditions.
• Baseline and post-frack testing of potentially affected waters to help identify instances in which contamination may be associated with fracking.
• A presumption of liability for contamination that appears post-fracking in proximity to operations.
• A detailed application, containing information about planned operations, that must be posted on a state web site.
• Setbacks (albeit not always as large as we believe are necessary) from population centers – including schools, residences, and nursing homes – as well as water resources and nature preserves.
• Mandatory plugging of nearby abandoned wells that can serve as pathways for contamination.
• Regulatory authority to address the problem of earthquakes induced by underground waste injection.
• Bonding and insurance requirements to enhance financial accountability.

Despite this relatively strong suite of protections, the bill leaves unsolved a number of issues that the state will need to address as fracking moves forward.  For one, the bill does nothing to provide local communities with power to more stringently regulate fracking if the residents see fit.  For another, it does nothing to limit the practice of “forced pooling,” a creature of the existing state Oil and Gas Act that allows landowners to be forced to lease their mineral rights when they share a “pool” of oil or gas with neighbors who wish to tap it.  Moreover, the federal exemptions the oil and gas industry enjoys need to be closed, like the loopholes in the Clean Air Act, Clean Water Act, and the federal loophole that exempts drilling and fracking waste from being treated as hazardous.   Generally speaking, many of the protections in the bill (especially with respect to air pollution) could be further strengthened.  While HB 2615 is strong and many aspects are unprecedented elsewhere, it is important that states – including Illinois, for that matter – treat it as a floor, not a ceiling, a fundamental set of protections that can be built upon and improved over time. 

And, of course, there is the continuing risk that notwithstanding our negotiated agreement, industry lobbyists may work in the days ahead to strip away the protections we have fought so hard for.  If they succeeded even in part, we would unfortunately be back to square one, fighting for a moratorium until adequate protective legislation is in place.

But for now, this bill represents a positive step forward for Illinois and the nation.  Thanks are owed to all who helped make this unlikely result possible, including most notably Assistant Majority Leader Representative John Bradley (D-Marion), the downstate legislator from the heart of potential fracking territory who ably facilitated the negotiations; House Speaker Michael Madigan’s office, which managed the complex drafting; Attorney General Lisa Madigan, whose office worked relentlessly to ensure that environmental protection and citizens’ rights where at the center of any fracking proposal ; and House Majority Leader Barbara Flynn Currie (D-Chicago) and Representatives Ann Williams (D-Chicago) and Naomi Jakobsson (D-Champaign), who fought hard for the most protective environmental provisions now in this bill.  And we would be remiss if we did  not also praise the work of Representatives Mike Bost (R-Carbondale) and David Reis (R-Onley) who prioritized the lengthy and at times testy stakeholder meetings, but showed commitment to engage on shared principles.    

There is a long road between introduction of a bill and it becoming law, but Illinois has at least gotten off to a very good start toward taking on a much-needed leadership role.   NRDC will continue our work in the days ahead to ensure the strongest fracking safeguards possible for Illinois.