A Brief History of Why the EPA (Currently) Does Not Regulate Hydraulic Fracturing

U.S. Senator Bob Casey (Democrat, Pennsylvania), recently re-introduced legislation he calls the FRAC Act—Fracturing Responsibility and Awareness of Chemicals. The legislation as proposed would do two things: (1) Put the industry practice of hydraulic fracturing, something that’s been happening for 60 years, under the oversight of the federal Environmental Protection Agency (“EPA”); and (2) require all drilling companies to publicly disclose all of the chemicals used in the process of hydraulic fracturing.

MDN has written about the ill-advised approach of having the federal government control oil and gas drilling by regulation, a right that belongs to the individual states. The purpose of this post is to provide the history of how and why the EPA is now not currently in charge of hydraulic fracturing.

A landmark 1995 Alabama case — Legal Environmental Assistance Foundation Inc. v. EPA — in which residents claimed that fracking had contaminated their water, went up to a federal appeals court.

An EPA filing in the case described the agency’s "long-standing interpretation" that fracking was not regulated under the law "because the wells at which the hydraulic fracturing is performed are principally focused on production, rather than disposal or other emplacement of fluids below ground."

In 1997, the 11th Circuit rejected the EPA’s narrow interpretation in favor of a broad one, ruling that the agency did indeed have jurisdiction over fracking.

The appellate decision led to another round of litigation between LEAF and the EPA and the agency’s 2004 fracking study.

It also prompted Congress in 2005 to amend the law, reinterpret its intent, and exempt fracking from EPA oversight, except in cases of diesel fuel being mixed with fracking fluid.

"EPA didn’t think the act regulated [fracking]. One court in Alabama, however, in 1997 decided it did. That created confusion. Congress then wanted to clarify that it didn’t and wouldn’t in the future," said Benjamin Grumbles, the EPA’s former assistant administrator for water.*

*Pittsburgh Post-Gazette (Apr 3, 2011) – Federal oversight of fracking in dispute

  • Otegogas

    This is precisely why the EPA needs to regulate oil and gas operations across the US – states are cash strapped and unable to adequately oversee and regulate (enforce laws) these activities which is the way the petroleum industry wants to keep it.

  • ari

    The FDA should absolutely regulate fracking!! They do such a wonderful job with drugs, foods, and coal, why not!!

  • Otegogas

    Ari, do you ever read the news headlines (or entire stories) that deal with gas drilling news?

    Here is a great link to use – but the question to you is, if the states are doing such a great job by themselves, then why are there so many complaints surfacing about contaminated wells from nearby gas drilling operations across the US?

    Another question for you is, “Why is Wyoming the “smog capitol” of the US?”


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  • Leo

    After they pa-lute most of our well water then we will do something right. Just maybe these people drilling these wells,regulators,EPA people will be affected by Fracking when it goes WRONG. You will be taking bathes in bottled water. Have a good day