You Really Fracked Up This Time, Feds

That hissing noise you heard on Friday was the sound of thousands of environmentalists sighing in disappointment. The Bureau of Land Management released new rules last week to govern fracking on federal lands (which accounts for about a tenth of the country's natural-gas drilling). The general view among health and environmental advocates is that the standards don’t go far enough.

“The BLM should have taken the highest standards from each state’s rules, but it didn’t do that,” says Amy Mall, senior policy analyst in NRDC’s land and wildlife program. (Disclosure.) “It’s significant that the administration acknowledged the dangers of fracking, but it’s a missed opportunity.”

As it has fueled the natural gas boom of the last decade, fracking has become one of the country’s most contentious environmental issues. Unlike starving polar bears, drilling in the Arctic National Wildlife Refuge, or clear-cutting the rainforest, hydraulic fracturing for oil and gas is happening right in our communities.

As of 2013, more than 15.3 million Americans lived within a mile of an active fracking well. Adults lease their property to drilling companies, while children play in yards as truckloads of fracking fluid rumble past. With reports of fracking contaminating drinking water, polluting air, and increasing earthquake activity, getting these rules right is important. Here are three ways in which the BLM didn’t.

What’s going down that hole?

At a typical fracking site, drillers pump tens of thousands of gallons of chemicals into the ground. If that ground is on your property, in your neighborhood, or on federal land, you should have the right to know what’s in all that fracking fluid. The new rules give you that right—almost. Drillers can still evade the disclosure requirement by claiming that the composition of their special frack sauce is a trade secret.

Drilling recipes are a little like those “natural flavors” in a can of Coke—the government lets the company keep them a mystery. In this case, however, the secret ingredients are toxic or carcinogenic, like benzene and formaldehyde. These chemicals are brought through neighborhoods in trucks, stored on-site, and sometimes spilled on adjacent property.

The trade-secret exception isn’t just a general transparency issue—it makes it harder to catch polluters. A worried landowner or local official can’t test for the presence of fracking fluid in the water supply if they don’t know what they’re looking for.

Emergency responders are kept in the dark, too. In 2008, an oil worker stumbled into the emergency room at Mercy Regional Medical Center in Durango, Colorado, covered in a fracking fluid called ZetaFlow. The nurse who treated him inhaled the fumes, suffered multiple organ failures, and nearly died. During the course of her treatment, Weatherford, the manufacturer of ZetaFlow, refused to tell doctors what was in the fluid, because it was a trade secret. Colorado has since amended its laws to prevent a repeat of the incident. The federal government should do the same.

Who’s the boss?

The Bureau of Land Management can exempt an area—or even an entire state—from some of the rules if the state has existing laws that “satisfy the objectives” of those regulations. The BLM’s goal is to avoid the duplication of regulatory efforts, but there’s a big problem here.

Imagine you’re a federal inspector. You’re poking around a fracking site on federal land, and you notice something is wrong with the well. Maybe the concrete wasn’t poured properly, or the piping isn’t secure enough to prevent fluid from leaking into the groundwater. Before you cite the well operator or notify your superiors, however, you remember that this area has been exempted from federal regulation because state laws “satisfy the objectives.” What do you do? The regulations don’t really say. Can you charge the operator under the state’s law? Should you simply notify state authorities of the problem? Good luck with that.

State authorities are notoriously unwilling to enforce their fracking laws. According to an investigative report by Greenwire, 96 percent of fracking violations in Texas go unpunished. West Virginia, where an enormous amount of fracking activity occurs, issued only 19 penalties in an entire year. In many cases, unfortunately, state enforcement means no enforcement.

Is nothing sacred?

Government officials create management plans for federal lands every 10 to 15 years, designating areas that will or won’t be open to drilling. That doesn’t stop oil and gas companies from asking to drill every year, though. When the feds say no, the company often waits a year or two and asks again, and again, and again. Every time a request comes in, it kicks off a fight between industry, the government, and environmentalists. There is little in our federal laws and regulations to guide officials in their decision-making, and every potential drilling site is examined on a nearly ad hoc basis. And drilling companies only need one “yes” to destroy sensitive lands forever.

The BLM could have used its new rules as an opportunity either to permanently ban drilling in certain locations or, at least, to provide clear principles to guide agency officials in their decisions. Sensitive wildlife habitat, for example, or areas near groundwater supplies or recreation sites could have been made off-limits to drillers.

The question now is whether these rules are the beginning of an era of increased oversight or the federal government’s last word on fracking. One thing is for certain: Americans will continue to have lots to say on the matter.