No News is Not Good News for BLM’s Proposed Rule on Hydraulic Fracking on Federal and Tribal Lands

Summary: The Bureau of Land Management’s (BLM) highly controversial proposed rule would establish baseline environmental safeguards for the hydraulic fracturing of natural gas on federal and Indian mineral lands. Although BLM’s proposed rule is a good first step in creating a uniform federal scheme for regulating hydraulic fracturing, after about a year of sifting through public comments, BLM has yet to publish a final rule.

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By Thea Graybill

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While growing up in Pennsylvania, I saw natural gas wells appear all around me on what were once open fields and forests. As soon as large trucks filled hotel parking lots, the local newspapers seemed to publish more news articles on natural gas development. Knowing that I was interested in the field of environmental law, family friends approached me with growing concern about the potential environmental consequences of hydraulic fracturing and natural gas drilling. It was difficult to look at them while explaining that hydraulic fracturing is federally unregulated and that states control the natural gas industry by regulating it in a piecemeal fashion.

Hydraulic fracturing is the controversial process in which well operators extract natural gas and petroleum from underground shale deposits. There are many potential benefits and issues associated with hydraulic fracturing of natural gas. Hydraulic fracturing is extremely controversial because it is economically advantageous for the United States’ energy industry. Yet, there are many associated inherent environmental risks associated with hydraulic fracturing, including impacts on air quality, and water quantity and quality.

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Within the last few years, several federal administrative agencies have stepped forward to do their part in regulating hydraulic fracturing. In 2012, the Bureau of Land Management (BLM), a bureau within the Department of Interior, published its initial proposed rule. BLM’s decision to update its regulations comes after twenty-five years of regulating the extraction of natural gas with regulations that did not take into account hydraulic fracturing. In 2013, after receiving criticism from numerous interest groups, BLM published the second iteration of the proposed rule. BLM extended the public comment period for the revised proposed rule until August 23, 2013, which was about a year ago.

BLM’s goal is that the proposed rule will assist the federal government in establishing baseline environmental safeguards for hydraulic fracturing on federal and Indian mineral lands. There are four major components of the proposed rule: chemical disclosure; well construction standards and reporting; fracture procedures and propagation monitoring; and flowback fluid and wastewater storage. First, well operators must disclose the chemicals used during the drilling process on FracFocus.org, BLM’s online database, or directly to BLM after the operation is complete. Second, well operators must run mechanical integrity tests (MITs) before hydraulic fracturing begins and must record Cement Evaluation Logs (CELs) during the hydraulic fracturing process. Third, well operators must generate topographical maps after the operation, which plot estimations of each site where natural gas drilling will take place with the direction, length, height, and propagation of the hydraulic fracturing process. Last, well operators must submit information to BLM regarding the volume of flowback fluids the operator may use during hydraulic fracturing and the methods by which the operator will handle, store, and dispose of the flowback fluids.

As one could infer, BLM’s proposed rule is highly controversial and unpopular among various interest groups. The industry sector generally believes that the proposed rule goes too far in impeding national energy development and oversteps states’ rights. Environmentalists think that the proposed rule does not go far enough in protecting public health and the environment. As evidence of the public’s interest and the controversial nature of BLM’s proposed rule, BLM received more than 1.3 million public comments regarding the proposed rule.

For such a contentious issue, BLM’s proposed rule is a good first step in creating a uniform federal scheme for the regulation of the natural gas industry and hydraulic fracturing practices. Obviously, there is a great need for federal hydraulic fracturing regulations due to the industry’s positive impact on the United States economy and the potential negative environmental and public health hazards. BLM’s proposed rule demonstrates that it is possible for the federal government to promulgate a comprehensive, uniform regulatory hydraulic fracturing scheme.

Unfortunately, I do not have any encouraging updates for my community in Pennsylvania. Even though BLM’s proposed rule public comment deadline was about a year ago, BLM continues to review the comments. BLM has not set a final rule release date.

Thea is a third-year Juris Doctor student at Vermont Law School. Prior to law school, she worked on various environmental policy issues at the Environmental Law Institute and the National Association of Clean Water Agencies. Thea is the Senior Managing Editor on the Vermont Journal of Environmental Law. After law school, she hopes to obtain a judicial clerkship and eventually enter the field of environmental and natural resources law. In her free time, Thea enjoys cooking, watching documentaries, kayaking with her Dad, traveling, and being very vocal during Steelers games.

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