Important and fractious debates over shale gas and oil continued to play out in watersheds and communities this past Fourth of July. As America searches for answers and assurances about scientific, legal and policy risks, here is my own personal take on some of the more interesting trends since my “Drill, Maybe Drill” blog in May 2011.
1. More Reporting & Disclosure
On the journalistic side: The ranks of thoughtful and probing reporters are growing. I attended a June 2014 national workshop of Society of Environmental Journalists in Pittsburgh, Pa., and was impressed by the reporters’ depth of knowledge on facts and policy disputes in shale plays throughout the country. They engaged with academic researchers, industry, environmental advocates and regulators, and visited some Marcellus shale operations outside of Pittsburgh. Carnegie Mellon University and its Scott Institute for Energy Innovation provided considerable expertise on the intersection of energy and environmental policy. On the regulatory side: The trend toward greater transparency on chemicals, mixtures and operations continues, although opponents and skeptics of hydraulic fracturing and shale development would be quick to proclaim “too little, too late.” State and industry efforts, such as FracFocus, the national registry established in April 2012, continue to expand with more coverage and traction among legislators and regulators.
Federal reporting and disclosure efforts are not completely stymied by the 2005 Energy Policy Act, which depending on your perspective, either clarified or exempted from regulation under The U.S. Environmental Protection Agency's (EPA) Underground Injection Control (UIC) program the practice of hydraulic fracturing (unless diesel fuels are used in the process). In February 2014, EPA’s Office of Water issued regulatory and policy guidance for UIC Class II permitting specific to oil and gas hydraulic fracturing activities using diesel fuels. Many of the guidance’s recommended practices are consistent with best practices for hydraulic fracturing in general, including those found in state regulations and model guidelines for hydraulic fracturing developed by industry and stakeholders. The guidance and the clarifications over the scope of permitting can be positive drivers towards improved stewardship, greater transparency and “greener” fracking fluids. In May 2014, in response to petitions relating to the Toxic Substances Control Act (TSCA), EPA’s Office of Chemical Safety and Pollution Prevention issued an advance notice of proposed rulemaking to seek comment on the information that should be reported or disclosed for hydraulic fracturing chemical substances and mixtures, and the mechanism for obtaining this information. This mechanism could be regulatory (under TSCA section 8(a) and/or section 8(d)), voluntary, or a combination of both, and could include best management practices, third-party certification and collection, and incentives for disclosure of information. Also, the agency is seeking comment on “ways of minimizing reporting burdens and costs, and of avoiding the duplication of state and other federal agency information collections, while at the same time maximizing data available for EPA risk characterization, external transparency and public understanding.” In addition, EPA is soliciting comments on incentives and recognition programs that could be used to support the development and use of safer chemicals in hydraulic fracturing.
2. More Concern About Air Emissions & Leaks
Initially, and understandably, the public eye focused on flaming faucets from methane migration underground with the debate centered on the cause of the private well contamination. That is still a priority concern (leading to more action on well construction, such as improved casing and concrete materials to protect drinking water supplies) but a growing amount of attention and action is focusing above ground on localized air pollution and greenhouse gas emissions. EPA issued significant national regulations in April 2012 and August 2013 to combat smog and bad air quality associated with shale gas and oil drilling. During the first phase, until January 2015, owners and operators must either flare their emissions or use emissions reduction technology called “green completions.” In 2015, all new fractured wells will be required to use green completions. An estimated 13,000 new and existing natural gas wells are fractured or re-fractured each year. As those wells are being prepared for production, they emit volatile organic compounds (VOCs), which contribute to smog formation, and air toxics, including benzene and hexane, which can cause cancer and other serious health effects. Greenhouse gas emissions are also getting serious attention and policy focus. Cornell University professors released a controversial study in April 2011 concluding that unconventional (“natural”) gas, procured through hydraulic fracturing, likely emits more greenhouse gases into the atmosphere during its life cycle than does coal. There is no consensus on the exact percentage of methane leaking from drilling, fracking and piping operations but the numbers are higher than many expect or are willing to accept. Federal and state methane reduction strategies are well underway.
3. More Regulation & Legislation at the State Level
States from coast to coast, north and south, are getting into the act. That can be very good news. As Fred Krupp of the Environmental Defense Fund and former New York City Mayor Michael Bloomberg described in an April 30, 2014 op-ed to the New York Times (The Right Way to Develop Shale Gas): “Strong rules and enforcement are critical … States are beginning to take action. Texas has imposed tough standards for well integrity, a key to groundwater protection. Wyoming has set strong requirements for water testing before drilling begins. Ohio is emerging as a leader in reducing air pollution from leaky oil and gas equipment. And in February, Colorado became the first state to directly regulate methane emissions from oil and gas operations—a huge step forward.” Other state actions may not be good in some instances, depending on one’s perspective and the particulars of a particular state effort. Organizations such as the Environmental Council of the States, the National Council of State Legislatures, and the Environmental Law Institute, as well as university-supported environmental institutes can all help inform policy choices among our 50 states, as well as the thousands of local governmental bodies engaging or potentially engaging in some aspect of the challenge, from broad bans to time and space limited moratoria.
4. More Collaborative Governance, Beyond Government
Thought-leaders and key stakeholders can step up, particularly when government, at various levels, is incapable or unable to respond. One of the most impressive examples of collaboration is the Center for Sustainable Shale Development, which has developed a set of voluntary standards. Not everyone is celebrating, but, as the Washington Post pointed out in an editorial, it is a breakthrough in collaboration to address some of the most important and difficult aspects.
The center, with Susan Packard LeGros as its executive director, works with “environmental organizations, philanthropic foundations, energy companies and other stakeholders committed to safe, environmentally responsible shale resource development.” Their membership includes Environmental Defense Fund, the Clean Air Task Force and other environmental groups, as well as Chevron, Shell and other energy companies. The nonbinding standards, which would apply to actions in Pennsylvania, Ohio and West Virginia, follow many of the recommendations from the Shale Gas Task Force reporting to the Secretary of Energy in 2011, covering such topics as pre-drilling environmental assessments and continual monitoring, disclosure of fracking fluid contents, recycling of fracking fluids and control of methane air emissions. The center uses third party certification of compliance for those companies adopting and following the standards.
All in all, recent scientific, legal and policy developments are fast-moving and wide-ranging. The diversity underscores the uniqueness of America’s communities, watersheds and shale plays. Still, a common lesson seems to be this: Upfront grilling and probing are the best ways to earn and keep the public’s trust.
Ben Grumbles is president of the U.S. Water Alliance, a not-for-profit educational organization based in Washington, D.C., committed to uniting people and policies for water sustainability throughout the country. Grumbles has a long career in water and environmental policy, serving the public and teaching law students and environmental professionals, over the past 25 years. He can be reached at [email protected].