New Fracking Lawsuit Already Nailed By Koch Bros

May 9th, 2016 by Tina Casey

So, that didn’t take long. Last Wednesday, a group of prominent environmental organizations filed a major new lawsuit accusing the US Environmental Protection Agency of failing to regulate fracking as a hazardous waste for the past 30 years. Just two days later, the Koch-backed Washington Legal Foundation issued a scathing op-ed accusing the EPA of colluding with the groups to establish new regulations through “orchestrated settlements.”

The op-ed is an obvious attempt to undermine the legitimacy of any future regulation of fracking by EPA, regardless of how the lawsuit shakes out.

The New Fracking Lawsuit

For those of you new to the topic, fracking is short for hydraulic fracturing, a drilling method that involves shooting massive amounts of chemical brine underground. It is typically used to jar oil and gas deposits loose from shale formations. To a lesser extent it is also used in other geological formations.

When fracking technology was first modernized in the 1970’s, the practice was considered “unconventional.” It was used infrequently, mainly in thinly populated areas in the western US. That changed in 2005, when the Bush Administration created a mile-wide loophole in federal water quality regulations. The loophole left regulation up to the states, resulting in the rapid expansion of fracking into more areas, including populous regions in the northeast.

Soon after President Obama took office in 2009, the EPA began testing out different avenues for establishing an alternate federal regulatory structure. However, the loophole made it virtually impossible to confirm the source of suspected fracking-related contamination. In at least one instance where the EPA gathered enough evidence to begin corrective action, the threat of industry lawsuits shut it down [notably, the EPA has continued to exercise its authority where established law is clear, for example to seek redress for ordinary construction violations at fracking sites].

Quantifying impacts on a national level has also run into an informational brick wall because of the loophole. The EPA’s most recent effort was a tepid draft report on fracking impacts issued last year, which the oil and gas industry welcomed as vindication. However, on close reading, the report was really a cry for help. The authors noted “a significant data gap for hazard identification” — attributable to the 2005 loophole — making it impossible to reach any broad conclusions about risks and impacts on the nation’s water resources.

That brings us to the new fracking lawsuit. If you don’t have time to read the filing, our friends over at Think Progress offer the following rundown of the main issue:

A coalition of environmental organizations is suing the Environmental Protection Agency, claiming federal regulators have for three decades failed to update rules for disposing of fracking and drilling wastes that may threaten public health and the environment.

[snip]

The EPA has not reviewed regulations for oil and gas wastes since July of 1988, the lawsuit notes, even though the use of hydraulic fracturing and drilling waste production has grown dramatically in the United States…

Hedging On Fracking Hazards

The new lawsuit is heading into some choppy waters. It’s based on the Resource Conservation and Recovery Act, which provides the EPA with cradle-to-grave authority over hazardous wastes. However, it it’s not clear how fracking brine or fracking wastewater would fit into the current federal framework since neither is currently classified as hazardous for the purpose of transportation or handling.

The 2005 loophole would make re-classifying those substances a long, hard legal slog, subjecting the EPA to yet another round of court challenges.

Source Watch further notes that the Bush loophole also exempts fracking wastewater from federal oversight entirely — hazardous or not — if it is reclaimed and reused for other fracking operations.

In addition, although the lawsuit’s 30-year framework of neglect is dramatic, fracking was relatively rare before 2005 (somewhat ironically, the technology was originally developed to help kickstart the US geothermal energy industry). On a priority basis, the EPA would have had a hard time justifying the resources to keep its rules up to date before then.

It’s also helpful to keep in mind that the lawsuit does not seek to ban fracking or significantly limit its application, at least not directly. It outlines the case for tighter regulation of disposal options. In the off chance that the lawsuit succeeds, the industry will adapt and fracking will continue.

So, Who’s Gonna Stop Fracking?

If anything, the lawsuit demonstrates the need for new federal legislation that provides the EPA with clear cradle-to-grave authority over fracking. The agency’s ability to manage the fracking boom has been crippled by the 2005 loophole, and a lawsuit will not change that.

Realistically, though, new federal legislation will not come about as long as Congress is dominated by legislators who receive significant assistance from the Koch-funded lobbying network and other fossil fuel supporters.

Congress gets to pass the bills, and the President can either sign them into law or veto them, so the current state of affairs will continue unless the 2016 elections sweep a Democratic president into office with an anti-fracking majority in Congress.

That’s not likely, but it’s not impossible either.

In the meantime, fracking continues apace. As the chart at the top of this article demonstrates, this once-unusual method of resource recovery is now outpacing “conventional” drilling.

To Ban Or Not To Ban

Even with a cooperative Congress, a complete, nationwide ban is not even necessarily consistent or desirable in the context of the emerging clean tech industry. Clean technology — solar cells, wind turbines, and EV batteries — requires rare earths and other materials that involve industrial, extractive operations. As with fracking, the clean tech supply chain involves risks and impacts, but no-one is talking about banning clean technology. The point is to reduce impacts and eliminate harm.

Somewhat more realistic is the creation of a stronger legislative framework for community control over industrial operations within their own borders, as part of a broader environmental justice agenda.

The recent decision to establish a statewide ban in New York illustrates a best-case scenario for fracking bans. The decision follows a years-long moratorium and it was preceded by local fracking bans established by scores of communities. These local bans were upheld in state court because they pivoted on the established principle of local control over zoning issues, paving the way for broader action.

Without a federal platform for supporting local bans, success is not guaranteed. In Pennsylvania, for example, local fracking opponents who used the zoning strategy had to push back against former Governor Tom Corbett’s fracking-friendly administration, which attempted to override local zoning standards with new, more permissive statewide regulations.

In Colorado, two local governments recently lost their fracking bans when the state Supreme Court ruled against them.

While local control sounds good on paper, clean tech fans should be wary of throwing the baby out with the bathwater. If taken to an extreme, local bans could effectively prevent the siting of major new clean tech projects such wind farms and wind energy transmission.

Conniving To Capitulate

As for the Washington Legal Foundation, you can find the organization’s statement on the new lawsuit in Forbes under the headline “EPA Poised To Attempt Fracking Ban Through Orchestrated Settlements?“

Here’s the money quote (break added for readability):

Anytime an agency like EPA connives to capitulate to a lawsuit in order to end-run the cumbersome rulemaking process, it violates the rule of law.

But if it does so in the face of uncontroverted evidence opposing the plaintiffs’ claims it would also sully the agency’s reputation beyond repair and surrender any claim to moral legitimacy.

If that “moral legitimacy” thing makes you think of the Bundy family, you’re not crazy. The now-notorious Cliven Bundy and his son Ammon have been front and center in the movement to open up more federal land to extractive industries, and if you sort through their oddball legal theories what you get is the claim that the federal government has no moral authority over anything.

Look for more of the same coordinated framing from the Koch lobbying network as the new lawsuit winds through the courts.

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Image: US Energy Information Agency.









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