Federal Fracking Waste Regulatory Commission, or Nah?

Summary: Wastewater from hydraulic fracturing (“fracking”) is not well-regulated in the United States, even though regulations exist at federal and state/local levels. This author recently published an article in which he argues the need for a federal commission, similar to the Nuclear Regulatory Commission, to regulate fracking wastewater (link provided in the text below). The following is a taste of the author’s arguments from his article.

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By Curtis Morrison

Federal agencies have failed to effectively regulate the clandestine fracking waste disposal industry. Some state and local fracking regulation exists, but much of that regulation has not proven effective at protecting communities from fracking waste. And sometimes, local fracking regulation has not survived the scrutiny of courts and state legislatures.

Last week, the Whittier Law Review published an article I authored: Fracker in the Rye: The Necessity of Federal Fracking Waste Regulation and a Fracking Waste Regulatory Commission. The article surveys the giant loopholes and shortcomings within the shockingly scarce regulatory regime regulating fracking waste disposal. Through examples of wastewater disposal in places you might not expect, the potential hazards to human health and the environment are examined. The article proposes comprehensive federal regulation of fracking wastewater disposal and the fracking waste management industry through the creation of a new federal commission to enforce it. Finally, it calls on members of Congress to pass federal fracking waste disposal regulation, and create a federal fracking waste regulatory commission modeled off the Nuclear Regulatory Commission.

Wait . . . there’s a fracking waste disposal industry? And it’s unregulated? Yes and yes, but let’s backup for the newbies. Fracking is the process of pumping water and chemicals underground at high pressure to force out oil or natural gas that would have otherwise stayed in the ground for time immemorial. Once these fluids return to the surface, they can also contain metals, dissolved solids, salts, and naturally occurring radioactive material. Although the industry prefers the term “produced water,” these fluids are more accurately coined fracking wastewater.

“You’re destroying public trust resources . . . [l]iterally destroying water,” explained Helen Slottje, New York attorney and founder of Community Environmental Defense Council at a 2015 environmental law conference. “It would be better to take the water that they use for fracking and put it on a rocket ship and send it to the Moon than to [re-] use it for fracking because that water is then available to pollute more water.”

hot water

Fracking fluid and other drilling wastes are dumped into an unlined pit located along the Petroleum Highway. Nets were installed on these pits to keep birds from dying in the toxic water. Photo Credit: Sarah Craig/Faces of Fracking

While some larger oil and gas companies handle their own fracking wastewater disposal, typically a wastewater disposal contractor relocates the waste far from the fracking site via pipes, trucks, trains and even barges. Then where does that all that fracking waste go? That’s a good question, with no comforting answers. In Kern County, California, for example, wastewater is left to evaporate in unlined pits where it invariably infiltrates groundwater. Elsewhere, wastewater is injected into abandoned Class-II wells where it also threatens to infiltrate groundwater.

Would a federal ban on fracking be better? Of course. Will that be politically feasible in the near future? Before you answer, consider that a SuperPac supporting Sec. Hillary Clinton’s bid for the presidency, credits her for “channeling the domestic energy boom into a geopolitical tool to advance American interests around the world.”

In the meantime, under the existing legal regime, fracking wastewater continues to irreversibly pollute sacred groundwater and aquifers across the nation. Shouldn’t Congress do something?

curtis morrison
Curtis Morrison is a Whittier Law School J.D. candidate expecting to graduate with an environmental law concentration next month. He volunteers as a law clerk with Our Children’s Trust, the Oregon-based non-profit devoted to atmospheric trust litigation. When time permits, he also writes about the environment, government, and politics