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You ran four anti-fracking letters on Aug. 6. All of them directly or indirectly asserted that the oil and gas industry is exempt from one or more major federal environmental statutes. Though very commonly heard these days, these claims sit somewhere between being just plain wrong and completely misleading.
In fact, if there was any journalistic fact-checking applied before publication, a lot of this stuff would have to get deleted on grounds of being unhinged from reality. I know this may be hard for your readers to believe, but I assert that these letter writers have been very successfully, and very intentionally, misled by anti-fracking propagandists. In an effort to win the debate over applying hydraulic fracturing technology to black shales in the Northeast, these activists have orchestrated a virally contagious chorus of spin, distortion, and untruth.
The debate is fine. But I don’t like the lying — from either side. Let’s just take two seconds and check out this one small part of it.
I’m going to have to leave aside the preposterous claims that the oil and gas industry is exempt from the Clean Water Act, the Clean Air Act, the Superfund law, and so on. Yes, there are industry-specific exemptions from relatively minor provisions — such as stormwater management on drilling sites under the Clean Water Act — but there is no such wholesale industry exemption from the meat and potatoes of these landmark statutes. For instance, under federal or state law, this industry cannot just set up an outflow pipe and start spewing drilling wastewater into a river.
The history of the Safe Drinking Water Act, on the other hand, carries a slightly more interesting “kernel of truth,” from which the activists have sprouted their claims. In terms of “command and control,” SDWA actually calls for regulation of really only two areas of activity: public water systems, and fluid waste disposal through underground injection (a practice with which very few people in the Northeast are familiar).
For more than two decades since passage in 1974, no one in authority on any state or federal level interpreted underground injection control as encompassing oil and gas well “stimulation,” or fracturing, as had long been routinely deployed during development of these resources. Then in the late 1990s there was a very effective lawsuit brought by an environmental group having to do with hydraulic fracturing for coalbed methane in Alabama. This environmental challenger won a series of rulings on the question of whether hydraulic fracture for exploration purposes shouldn’t be treated as essentially equivalent to underground injection for disposal purposes. That judge agreed with the environmentalists, and this ultimately compelled creation of an ad hoc federal regulatory program overseeing hydraulic fracture — but it only had jurisdiction in Alabama.
The Energy Policy Act of 2005, among many other things, rendered this Alabama legal decision ineffective by clarifying congressional intent within SDWA. It said clearly that hydraulic fracturing was not meant, and was never meant, by Congress to be covered under the federal underground injection control program. So that’s the exemption, the so-called “Halliburton loophole.” It just confirmed the status quo, which is that the states remain the primary regulators of oil and gas exploration activity.
I would not have any objection if your letter writers honestly stated that hydraulic fracturing has never been historically regulated under the SDWA’s underground injection control provisions, and that Congress in 2005 specifically laid down language confirming that intention.
But that’s not how the anti-fracking propagandists phrase it. Instead, they spin it this way: The industry got itself a special exemption from SDWA in 2005.
To me, it is fundamentally dishonest to leave readers with the impression that the practice of hydraulic fracturing was at one time under federal oversight, but then in 2005 the industry succeeded in winning for itself this sort of exemption. It is equally dishonest to take advantage of readers’ ignorance in order to leave them assuming that SDWA serves up blanket regulation over many enterprises — agriculture, manufacturing, recreation, and so forth — but that the oil and gas industry has won for itself special treatment.
That’s not how it goes, that’s not how it’s been. I just really wish we could have an honest debate here, if possible.