Politics & Policy

Pump the Brakes on Fracking Regulations

In yet another Obama-administration Friday-afternoon news dump, the Bureau of Land Management announced that it is issuing broad and cumbrous new regulations on certain techniques of drilling for natural gas and oil — hydraulic fracturing, a.k.a. “fracking” — on land under its control.

The rules will mandate disclosure of fracking fluids, insert Washington into the well-design process, and add a new layer of regulation to wastewater-disposal procedures.

The BLM announcement originally had been scheduled for the latter half of 2012 but something (we can’t imagine what) caused the BLM to back off and then back off again at the end of 2014. The Obama administration, now facing the largest Republican majority in Congress since Teapot Dome was in the headlines, apparently calculates that it has not much to lose.

There are a few things that every American should know about fracking but most don’t:

1) That flaming-sink scene from Gasland is a documented fraud. 2) There are real environmental challenges associated with fracking, but it is, on balance, probably safer than traditional drilling methods. 3) It is already heavily regulated.

It is item No. 3 that really bugs the Left: Fracking, like most petroleum production that takes place on non-federal real estate, is regulated by state and local governments.

And that, really, is what this fight is about.

For the Left, regulation that does not come from Washington is substandard. Politico cites environmentalists who dismiss the current arrangement as a “patchwork.” Vox calls current regulation “patchy and inconsistent” and frets that rules “vary from state to state.” Vox, which boasts that it is guided by evidence and empiricism, never even bothers to ask whether it might in fact be preferable to have rules that vary from locality to locality since — this also apparently is beneath consideration — the underlying geology varies from locality to locality, too. West Texas is not very much like Pennsylvania or the southern tier of New York, a petroleum-rich and economically depressed area in which modern techniques of gas extraction are categorically banned by edict of Governor Andrew Cuomo, another Democrat willing to hamstring the economy in the service of courting ill-informed environmentalists.

Experience has shown — in Texas, in Pennsylvania, in South Dakota, and beyond — that state regulators are very much up to the task, and that they are much better positioned to take account of local conditions than are bureaucrats at the BLM or the EPA, who are mainly interested in local conditions in the District of Columbia. Experience has also shown that Washington-based regulators are susceptible to political manipulation.

And that is especially worrisome in this case, because these new regulations have one very odd and worrisome feature: Rather than issuing standards and rules to which new wells must conform, the BLM instead has invested itself with the power to either sign off on or block each individual well, operating on a case-by-case basis. (Based on what statutory authority? Are we still even asking that question?)

Which is to say, satisfying the letter of the law will not be enough — BLM bureaucrats still will have the final say, employing whatever whimsical standards leap into their perverse little minds. This is a recipe for outright corruption — especially for an administration that already has shown itself willing to use regulatory powers of the IRS and the ATF as a political weapon.

If for no other reason than this expansion of bureaucratic ad-hocracy, Congress should step in and block these rules.

The gas industry has complaints with individual aspects of these new rules, including the forced disclosure of trade secrets and, especially, the case-by-case well reviews. But the truly worrisome development is not so much the content of the regulations as the source of them: There is good reason to believe that the Obama administration is taking the first steps toward replacing state regulation of gas exploration with a fly-by-wire model operating out of Washington, for the benefit of officeholders in Washington. Governors and state legislators can be held to account in a much more direct and robust way than can presidents, EPA administrators, and congressional subcommittee staffers. Given that oil and gas is one of the sectors of the American economy that are thriving, prudence counsels very strongly against introducing more invasive federal intervention.

On a dozen fronts ranging from illegal immigration to health care, President Obama is at this point essentially booby-trapping the executive branch, ruthlessly expanding and abusing executive-branch power so that the next Republican in the White House will have to choose between spending a great deal of political capital undoing Obama’s damage or acquiescing to a radical expansion of the federal government and presidential power.

Rather than wait for that day to come, Congress can and should act now to pump the brakes. Anything it does now seems unlikely to survive Obama’s veto, but energy is an issue on which a significant number of Democrats may be willing to break from the president.


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