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