On Friday, the Department of the Interior officially repealed rules created by the Obama administration to regulate the use of hydraulic fracturing on federal lands, signaling an end to a contentious process that has drawn legal challenges from the oil and gas industry.
Hydraulic fracturing — or fracking — is a kind of oil and gas extraction that requires companies to inject large volumes of chemical and sand-laced water into rock formations at high pressure, breaking the rocks and exposing oil and gas within. It’s a controversial process that has been found to increase the likelihood of earthquakes around drill and injection sites, and can pose a threat to groundwater. Babies born near fracking sites are also more likely to have significantly low birth weights, which could lead to health problems later in life.
The Obama-era rules, which were finalized in 2015 but never went into effect due to pending litigation, would have required companies to disclose the chemicals used in fracking, as well as forced them to cover storage ponds where companies keep fracking fluids. The rules also would have set more stringent standards on the construction of fracking wells and wastewater management.
The Department of the Interior said that repealing the rules would save “up to $9,690 per well or approximately $14 million to $34 million per year” in industry compliance costs while doing away with duplicative federal regulations. Opponents of the rules argued that state and tribal regulations already did enough to protect the environment and public health from any dangers associated with fracking, and that the federal rules simply added more regulatory burden for the oil and gas industry.
“It was clear from the start that the federal rule was redundant with state regulation and politically motivated, as the prior administration could not point to one incident or regulatory gap that justified the rule,” said Kathleen Sgamma, president of Western Energy Alliance — one of two industry groups that successfully challenged the rule in 2015 — in a press statement. “Western Energy Alliance appreciates that BLM under Interior Secretary Ryan Zinke understands this rule was duplicative and has rescinded it.”
The department also claims that the disclosure of chemicals used by fracking companies is “more prevalent than it was in 2015 and, therefore, there is no continuing need for a Federal chemical disclosure requirement, since companies are already making those disclosures on most operations, either to comply with state law or voluntarily.”
In 2015, the EPA found that fracking companies disclosed just 10 percent of the chemicals used in their operations. Between January 2011 and February 2013, 428 operators in 20 states filed with FracFocus, an industry-backed web portal that allows oil and gas companies to voluntarily register the chemicals used in their operations. According to the Interior Department’s repeal of the Obama-era fracking rules, 25 states now use FracFocus for chemical disclosures.
But proponents of the rules argue that they represented meaningful, common sense updates to a regulatory framework that was created before the advent of fracking some ten years ago.
“Arguing that states have rules that talk about the subject of hydraulic fracturing doesn’t tell you much at all,” Michael Freeman, a staff attorney with EarthJustice, told ThinkProgress. “If you want to look at the value of a rule you have to look at what it is actually doing on a number of issues. The rule eliminates pits to store fracking waste in most cases; most states don’t require that.”
In 2016, after delaying the rules for a year, a Wyoming district court found that the Interior Department does not have the authority to regulate fracking on federal lands. The Interior Department, along with a number of environmental groups, initially appealed the decision, though the department changed its position after Trump took office in 2017. In September, a federal appeals court overturned the 2016 decision — which opens up the possibility for another administration to issue similar regulations at some point in the future.
It’s unlikely that the issue has seen the last of its legal challenges, however. Environmental groups are almost certain to challenge the repeal in court, most likely arguing that the repeal violates the Administrative Procedures Act, which holds that agencies cannot make decisions that are “arbitrary and capricious.”
“What the Trump administration has done here is to abdicate its responsibility to protect public lands from the very real risks posed by modern fracking,” Freeman said. “It’s completely arbitrary. Instead, it simply amounts to a favor for Trump’s friends in the oil and gas industry.”
Freeman said that EarthJustice was planning to legally challenge the administration’s repeal in the coming weeks.
Repealing the rules has been a top priority for the Trump administration’s deregulatory agenda since taking control of the White House last year. In March, Trump specifically named the rules as targets for repeal in his executive order on energy independence (the same executive order that kicked off the official the repeal of the Clean Power Plan). But Freeman notes that repealing the fracking rules will hardly usher in an energy boom on federal lands — according to the Bureau of Land Management’s own assessment, the impact of repealing the rules would be “positive but seldom significant.”
“While there could be a small positive impact on the development of Federal and Indian oil and gas leases, the proposed rule is unlikely to substantially alter the investment decisions of firms and is unlikely to affect the supply, distribution, or use of energy,” the BLM concluded in July.