By Brian Bayne

To nobody’s surprise, this year’s presidential campaign has largely focused on the economy and unemployment, and thus has either pushed other issues aside entirely or has approached them from an economic or job creating point of view.  This has been especially true of each candidate’s energy policy, which stress energy independence as a way to build the economy and create jobs.  While the candidates have different positions on promoting renewable energy, each candidate wants to increase domestic oil production through a variety of methods including the use of the controversial technique of hydraulic fracturing (fracking).  However, the candidates differ in how they would regulate the practice.  Obama’s Energy plan proposes the creation of federal regulations, while Romney’s Energy plan proposes that regulations be left up to the states.

Fracking is the process of drilling for otherwise unobtainable natural gas or oil by firing a mixture of water and chemicals down a well at high pressure in order to fracture rocks that are preventing natural gas or oil to flow to the surface.  While the practice has existed for over fifty years, it was not widely used until more recently because it has become more economical.  The practice is controversial because it not only releases greenhouse gases and other pollutants into the air, but there are also reports of the chemicals poisoning the drinking water through absorption into the ground water and reports of fracking causing earthquakes. These negative side effects are more than just a threat to the environment; they are public safety concerns.  Therefore, if the United States is going to go forward with an energy plan that uses this controversial practice as one of the cornerstones, as both Obama and Romney Energy plans suggest, it will be important for the practice to be properly regulated.

Unfortunately, while there are long established federal regulations on drilling in general, there are currently very few federal regulations that address fracking specifically.  In fact, the Environmental Protection Agency (EPA) did not publish its first rule addressing fracking until this past August and the rule did not go into effect until this October.  Under the new rule, the EPA uses its authority under the Clean Air Act to require that companies use “green completions” to capture the gas that is released when the well is first tapped.  The EPA gives companies until 2015 to purchase and install “green completions” and requires companies that do not yet utilize that technology to use a “completion combustion device” to burn off gas before it can be released into the atmosphere.  While this rule is an important step in regulating fracking, it is very limited and only addresses air pollution.  In order to ensure public safety, it will be important to have fracking regulations that address the other environmental concerns, such as water contamination.

The EPA has not created any rules specifically addressing water pollution caused by fracking, and in fact has been largely barred from doing so by the Energy Policy Act of 2005, which exempts chemicals used in fracking, other than diesel fuel additives, from the Safe Drinking Water Act.  This means that chemicals used by energy companies in fracking cannot be regulated by the EPA.  Democrats in Congress tried to remove this exemption with the Fracturing Responsibility and Awareness of Chemicals Act of 2011, sponsored by Diana DeGette (D-CO 1) in the House and Robert Casey Jr. (D-PA) in the Senate.  Unfortunately, the bill has been stalled in committee and no congressional action has been taken in either the House or the Senate since April of 2011.  If fracking continues to be largely unregulated at the federal level it will be important for the states where fracking takes place to take the lead in regulating the practice.

Currently many states where fracking takes place impose regulations on the practice to help ensure public safety.  However, one problem with relying on states to regulate their fracking practices, as opposed to having federal regulations, is that some states have many fracking regulations and others have very few.  For instance, Pennsylvania has many regulations on fracking while California has no regulations that directly address fracking, but rather treats the practice as any other drilling technique.  While some may argue that this would be okay in a state where very little, or no fracking, takes place, California houses what many believe to be the largest oil shale formation in the United States, an oil reserve that the industry believes can be best accessed through fracking.  Therefore, it is important for California to either pass fracking regulations to make sure the practice is preformed safely, or attempt to regulate fracking under Californian laws that are already on the books.

Currently under California law, a state agency must produce an environmental impact report for “any project which they propose to carry out or approve that may have a significant effect on the environment.”  (California Environmental Quality Act §21100).  The only way to get around issuing an environmental impact report is if the project falls within one of the categorical exemptions within the California Environmental Quality Act (CEQA) or if the agency writes a “negative declaration” which explains that there is no evidence that the project may have a significant effect on the environment.  While one would think that under this law fracking would require an environmental impact report, California Department of Conservation, Division of Oil, Gas, and Geothermal Resources (DOGGR), the state agency that reviews oil well drilling petitions, has been allowing companies to frack without issuing environmental impact reports.  The DOGGR claims that fracking falls under the “minor alterations to land” or “existing facilities” exemptions within the CEQA, and in cases where these exemptions doen’t apply the DOGGR has filed negative declarations claiming that if procedures are properly followed there will be no environmental impact.  On October 16, 2012, Earthjustice, on behalf of several environmental groups, filed a lawsuit in California State court to challenge the DOGGR practice of not issuing environmental impact reports when authorizing fracking.  If Earthjustice is successful in this suit it will be an important step in limiting the environmental damages caused by fracking.  However, if they are unsuccessful it will be important for either the state, or local government to pass regulations to ensure public health.


Blueprint For A Secure Energy Future, The White House, available at

The Romney Plan For A Stronger Middle Class:  Energy Independence, available at