Leftover on the Next EPA Administrator’s Plate: Supersized Portions of Fracking Regulation?

natural gasAs several news reports surrounding the resignation of Environmental Protection Agency Administrator Lisa Jackson noted (such as this Reuters story), the federal agency’s role in regulating hydraulic fracturing is one of many high stakes issues her replacement must address this year.

One fracking item left unaddressed is a petition filed by a coalition of activist groups with EPA last October.  The activists want fracking-related emissions reported to the government’s “toxic release inventory” (TRI) under the Emergency Planning and Community Right to Know Act.

Activist groups like the Environmental Integrity Project (EIP), which leads the petitioning coalition, want us to believe that fracking is an unregulated activity desperately in need of federal control.  In reality, the states have been actively regulating the industry for decades and continue to modify their rules to reflect recent developments.

In seeking to impose the Right to Know Act, the petitioners faced a major complication: the emissions from many of the fracking facilities would fall well below the Act’s reporting thresholds.  The TRI initiative applies to facilities processing more than 25,000 pounds or using more than 10,000 pounds of one of the listed chemicals. 

To overcome this hurdle, the petitioning activists urge EPA to engage in an environmental version of “creative accounting.”  EPA should aggregate multiple “adjacent” wells and their supporting infrastructure in order to exceed the 10,000 pound usage threshold.  EIP and its allies helpfully suggest that factors such as the “nature of the relationship between the facilities” and the “degree of interdependence between them” can delineate two facilities as adjacent.

What’s wrong with more disclosure, you might ask?  Generally, what EIP demands is already being accomplished at the state level and voluntarily by industry.  More specifically, the information sought would create public confusion and require EPA to ignore a recent federal appeals court ruling.

The Fracking Insider blog elaborated on the consequence of public confusion:

Aggregation, particularly on a basin-level, has the potential to create significant public confusion.  TRI reports are primarily intended to inform communities about the emissions profile of their industrial neighbors. Improperly lumping emissions from disparate and sometimes distant sources until the number is high enough to meet reporting thresholds does not provide useful information to local communities.”

Not only would EIP’s strategy for aggregating numbers confuse the public, it has been soundly rejected by the Sixth Circuit.  On August 7, 2012, the Sixth Circuit concluded that the plain meaning of the word “adjacent” is unambiguous and leaves no room for discussion of factors such as “the nature of the relationship” or the “degree of interdependence”.  Rather, the Sixth Circuit found no support for EIP’s position and held that “two entities are adjacent when they are ‘[c]lose to; lying near… [n]ext to, adjoining.’”  You can read more about the Sixth Circuit’s decision in this WLF Legal Backgrounder.

Let’s hope the new EPA Administrator takes all of this into consideration when he or she reviews the agency’s response.

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