The Illinois State General Assembly is moving a bill through the legislature that sets the framework under which hydraulic fracturing (“fracking”) in that state will be regulated. While many jurisdictions have or are in the process of establishing similar regulations, few (if any) can claim to have the participation and support of large environmental groups in developing their regulations and their support for their passage into law.

Bill HB2615, the Illinois Hydraulic Fracturing Regulatory Act, is at the Committee stage in the Illinois legislative process and is expected to pass later this year. It is gaining widespread attention not so much for its substance, but for the fact that at least two major environmental groups, the Sierra Club and the Natural Resources Defense Council, have publically endorsed the bill; a move that has prompted a vocal backlash from other groups.

The bill establishes standards on fracking operators that are largely new to the State; however, they are standards that are commonly found in other jurisdictions. The bill includes:

  • a ban on open pits for wastewater (all fracking wastewater must be stored in tanks);
  • mandatory disclosure of the composition of fracking fluids (with some exception for trade secrets);
  • enhancement of public participation in the approval process;
  • a presumption of liability on operators where contamination arises after fracking operations begin; and
  • setbacks from residences, schools, hospitals, waterways and water sources.

While the imposition of these standards represents a significant change to the current fracking landscape in Illinois, the endorsement of two multinational environmental groups that have long held the position that fracking should be banned raises questions about whether at least parts of the environmental lobby may be changing its approach.

Neither the Sierra Club nor the Natural Resources Defense Council have gone so far as to endorse fracking; however each appear to acknowledge that it is a practice that will be employed for the foreseeable future and that their interests might be better served by participating in the legislative process and ensuring that regulations address as many of their concerns as possible, rather than demanding what is likely impossible to achieve – an outright permanent ban.

Press releases issued by each organization seem to concede this point. In announcing its support for the bill, the Natural Resources Defense Council stated:

Whether it is today or a few years from now, the regulatory process will move forward. We felt it essential to engage in the process to fight for robust, scientifically-based standards to protect our communities, and to preserve the public’s voice in the permitting and enforcement process.

The endorsement of the bill by environmental organizations has not been universal, and several have criticized the Sierra Club and Natural Resources Defense Council for “selling out” the environment. For example, the anti-fracking group New Yorkers Against Fracking called the Sierra Club’s endorsement “unconscionable”, SAFE (Southern Illinoisans Against Fracturing Our Environment) called the bill “insufficient and unenforceable” and the Illinois People’s Action shouted “shame on you” to the supportive environmental groups at a recent rally.

Though consensus amongst all environmental groups is unlikely where regulation does anything less than impose a permanent ban, the current cooperation between industry and the Sierra Club and the National Resources Defence Council suggests that in at least some circumstances the momentum may be shifting toward a more measured environmental response, where rather than advocating for an absolute ban, they may achieve more direct input into the regulatory process. It will be interesting to see whether this shift begins to be reflected in other jurisdictions or whether this was simply a pragmatic response to the current circumstances in Illinois.