The Department of the Interior (DOI) has circulated proposed rules that would regulate hydraulic fracking on federally owned lands. The proposed rules would impose requirements on companies extracting natural gas on such lands, including mandating disclosure of chemicals used in fracking operations.
The DOI’s proposed rules would only cover fracking on federal lands, meaning that the majority of natural gas wells in the US would not be immediately impacted (since only thirteen percent of US natural gas production comes from public lands). However, the current administration has expressed its desire that the proposed rules would serve as a blueprint for future federal regulation of fracking outside federally owned lands. Moreover, the DOI’s Bureau of Land Management (BLM) has indicated that it intends to work with states in implementing the new rules in order to minimize conflicts with already existing state fracking laws. According to DOI’s summary, the rule “adds a provision allowing the BLM to approve a variance that would apply to all lands within the boundaries of a State, a tribe, or described as field-wide or basin-wide, that is commensurate with the state or tribal regulatory scheme,” if the “State or tribal law…meets or exceeds the effectiveness of the proposed [federal] rule.” Taken together, this means that the proposed regulations should be evaluated now, as they are likely to form the basis of a future federal proposal on fracking standards.
In doing so, the most significant aspect of the DOI’s proposed regulations is the requirement that companies disclose a wide range of the chemicals used in drilling. Although, disclosure of proprietary information will probably not be required, firms drilling on federal lands will be forced to spend time and resources reporting on the substances injected during fracking operations. These reports will be available to the public. In effect, this portion of the regulation will result in the disclosure of a company’s fracking chemicals since chemicals used in public land wells are likely to be similar to the chemicals used in other private land wells. If the rules are finalized, a company with just one well on federal land will, for all intents and purposes, be compelled to disclose the chemical constituents of its fracking operations at any similar wells on nearby private lands.
Some disclosure is already being required at the State level. Currently, over a dozen states require some form of disclosure of the chemicals used in the hydraulic fracturing process. However, according to a study by an environmental group, laws from state to state are not uniform, and many states with disclosure requirements do not require the level of detail that the proposed federal rule mandates. The federal rule would, for example, require disclosure, for each chemical used (including base fluid), the trade name, supplier, purpose, ingredients, Chemical Abstract Service Number (CAS #), maximum ingredient concentration in additive (% by mass), and maximum ingredient concentration in hydraulic fracturing fluid (% by mass).
In addition to setting disclosure requirements, the proposed regulations will impose construction standards on wells and add a requirement that operators put appropriate plans in place for managing flowback waters from fracturing operations. Comments on the proposed rules are due by June 24.
While fracking has been a subject of state regulation for years, the recent statements from the current administration and the DOI Bureau of Land Management seem to herald a new federal direction is on the horizon. Not everyone agrees this is the right approach. Indeed, Tony Clark, a member of the Federal Energy Regulatory Commission, is reported recently to have said federal regulation of fracking is “not needed and will probably do more harm than good.” Nevertheless, it still appears to be coming.