Despite the practice of hydraulic fracturing having gone on for over fifty years, there are few federal laws directly regulating it (Joskow 2013). In fact, many important environmental laws actually specifically exempt hydraulic fracturing from their regulation (Torrez et al. 2013). There are seven main environmental policies that specifically exempt hydraulic fracturing from their regulation: including the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, Superfund law, the Resource Conservation and Recovery Act, the Emergency Planning and Community Right-to-Know Act, and the National Environmental Policy Act. The Safe Drinking Water Act and Clean Water Act directly regulate water and these will be discussed below.
The Safe Drinking Water Act
The Safe Drinking Water Act (SDWA) was passed in 1974 and helps prevent any possible contamination by “underground injection” of drinking water (SDWA 1974). However, the EPA did not define injections for hydraulic fracturing under this definition until it was ruled they must do so in 1997 by the U.S. Court of Appeals (Torrez et al. 2013). After this, the the EPA conducted a study that concluded in 2004 with the findings that hydraulic fracturing poses “little to no threat” to drinking water. However, since its release the study has been highly criticized for its poor methodology and questionable review board (Howarth 2011; Torrez et al. 2013). Based on this questionable study, the National Energy Policy Act was passed in 2005 and created the “Halliburton loophole,” which specifically exempted hydraulic fracturing operations from being regulated by the Safe Drinking Water Act (Torrez et al. 2013).
After methane and benzene (a carcinogen) were found in the drinking water of homes in the Barnett Shale region in 2010, the EPA decided to conduct another, more comprehensive study on the impact of hydraulic fracturing on drinking and groundwater sources. This research included analysis of existing data in literature as well as databases (some of which were provided by oil and gas operators at the EPA’s requests), the development of case studies and select field work in these areas (including two locations in the Marcellus Shale region), laboratory studies, evaluations of different scenarios using computer modeling, and toxicity studies. They released a draft assessment of this study in June 2015; research is still ongoing (Natural Gas Extraction – Hydraulic Fracturing n.d.).
Clean Water Act
The Clean Water Act (as it came to be known in 1972) regulates pollutants and runoff; however, based on an amendment in 1987, oil, gas and mining operations were all exempt from requiring a permit to discharge runoff and possible pollutants (Summary of the Clean Water Act 2011). In order to get around this exemption, the EPA regulated runoff and pollution from oil and gas company construction site until the passing of the National Energy Policy Act in 2005 included construction activities under oil and gas production operations. However, this was challenged by the Natural Resources Defense Council and in 2008 it was ruled that oil and gas construction facilities and (in some cases) industry discharges in waters must be regulated with permitting requirements (Torrez et al. 2013).
Howarth, R. W., Ingraffea, A., & Engelder, T. (2011). Natural gas: Should fracking stop? Nature, 477(7364), 271-275. doi:10.1038/477271a
Joskow, P. L. (2013). Natural Gas: From Shortages to Abundance in the United States. American Economic Review, 103(3), 338-343. doi:10.1257/aer.103.3.338.
Safe Drinking Water Act of 1974, Pub. L. No. 93-523, § 1421(d)(1), 88 Stat. 1660, 1676 (1974).
Torrez, M., Brady, W. J., Crannell, J. P., Smith, J., Belzil, D., & Knodel, M. S. (2013). Hydraulic Fracturing Regulation in the United States: The Laissez-Faire Approach of the Federal Government and Varying State Regulations. Vermont Journal of Environmental Law.