Should Fracking be Regulated at the State Level? (H.R. 928)

What is H.R. 928?

(Updated January 18, 2021)

This bill — known as the Fracturing Regulations are Effective in State Hands (FRESH) Act — would give states the sole authority to issue or enforce any regulation, guidance, or permit requirement regarding hydraulic fracturing (also known as “fracking”) on or under any land within their boundaries. It would also exempt hydraulic fracturing from federal environmental laws, such as the National Environmental Policy Act (NEPA) and Endangered Species Act (ESA).

Hydraulic fracturing on federal land must comply with the law of the state in which the land is located. Federal land is defined as:

• Public land as defined in the Federal Land Policy and Management Act (such as land under the jurisdiction of the Bureau of Land Management);

• National Forests;

• Land under the jurisdiction of the Bureau of Reclamation; and

• Land under the jurisdiction of the US Army Corps of Engineers.

Argument in favor

States are already regulating fracking on their own, and each state’s regulators have better context and local understanding to know how they should regulate fracking activities on their state’s lands. Reducing barriers to fracking at the state level will help local economies.

Argument opposed

There are numerous cross-border environmental issues involved in fracking that should be addressed by the federal government. Existing federal policies already cover some of the potential impacts of fracking, and should lead to federal oversight of fracking.

Impact

States with oil and natural gas; oil and gas industry; hydraulic fracturing; public land under the Federal Land Policy and Management Act; National Forests; Bureau of Reclamation; US Army Corps of Engineers; National Environmental Policy Act; and Endangered Species Act.

Cost of H.R. 928

A CBO cost estimate for this bill is unavailable.

Additional Info

In-Depth: Rep. Louie Gohmert (R-TX) introduced this bill to give states the right to regulate hydraulic fracturing on all land within their boundaries and force companies with hydraulic fracturing operations on federal lands to comply with current state laws:

“In the wake of the overreaching and unaccountable Obama Administration, the need to ensure that states have sole authority to regulate hydraulic fracturing is more apparent than ever. Texas agencies are routinely much more accountable, more knowledgeable of the fracturing and production procedures used in Texas, and much less indiscriminate, while being focused like a laser on the very air, water, environment that the Texas agency members have to breathe, drink, and live in, much more so than DC-entrenched bureaucrats... States such as Texas have the intricate knowledge and first-hand expertise necessary to properly regulate this energy without the need for a federal, one-size-fits-all approach that has been destructive and costly to our nation’s energy interests. For these reasons, it is time to put people to work producing our own energy, which sends less money to countries that do not like us, all while lowering the cost of living.”

Sen. Jim Inhole (R-OK), who introduced this bill’s Senate companion, emphasized hydraulic fracturing’s importance to U.S. economic competitiveness and national security:

“Hydraulic fracturing is critical to our domestic energy production, supporting economic competitiveness and national security. Unfortunately, the federal government has been seeking to burden the industry with red tape, duplicating state regulations, making our energy production more expensive and preventing the United States from achieving greater energy independence. I am proud to introduce the FRESH Act which explicitly gives states the sole authority to regulate hydraulic fracturing operations within their states borders.”

Sue Tierney, a former assistant secretary for policy at the Department of Energy under President Clinton and a state cabinet officer for environmental affairs for Massachusetts, points out that competing state regulations make it very difficult to regulate hydraulic fracturing today:

“There’s such a history of states’ rights on this.  Much of the regulation we see over oil and gas production evolved from the foundation of states’ use of their police powers, rather than federal environmental regulation.  That creates a very varied playground in terms of states’ policies and enforcement. There’s been resistance to a more standardized process across the states. I do think that there are some things associated with air quality and associated with clean water issues where there are larger spillover effects on different communities.”

Michael Greenstone, a professor at the University of Chicago, has found that shale development and hydraulic fracturing has positive economic impacts on communities. In one study, Professor Greenstone and his coauthor found that development increases economic activity, employment, income, and housing prices, with the average household benefitting by about $2,000 a year net of social costs.

However, Professor Greenstone and his coauthors also found that infants born to mothers living up to about 2 miles from a hydraulic fracturing site suffer from poorer health. Babies born within about a half mile of a site were 25% more likely to be born at a low birth weight.

Jeff Holmstead, a partner at Bracewell, LLP who represents oil and gas companies, contends that while the federal government should lead on cross-border issues posed by fracking, such as air quality and methane emissions, states should lead on environmental issues in oil and gas development and addressing localized issues:

“When it comes to oil and gas development, it’s not true that Texas[, for example,] doesn’t care about environmental issues. They actually have regulators who know a lot about the industry, that are involved in addressing environmental concerns, so I think a lot of it can be done [at the state level].”

Of Note: Hydraulic fracturing, or fracking, is a process to extract underground resources such as oil or gas from a geologic formation by injecting water, a propping agent (e.g., sand), and chemical additives into a well under enough pressure to fracture the geological formation.

The federal government already regulates other activities related to hydraulic fracturing, such as surface discharges, wastewater disposal, and air emissions, under a variety of environmental statutes, including: the Federal Water Pollution Control Act, also known as the Clean Water Act (CWA), which makes it unlawful to discharge any pollutant from a point source into navigable waters unless a permit is obtained; the Safe Drinking Water Act (SDWA), which focuses on protection of all waters actually or potentially designated for drinking use, whether from surface or underground sources; and the Clean Air Act (CAA), which is the comprehensive federal law regulating air emissions from stationary and mobile sources.

On several occasion,s Congress has chosen not to include hydraulic fracturing in the underground injection control program under the SDWA.

Proponents of fracking call it a “commercially viable practice” that has been used for over 60 years. The Ground Water Protection Council (GWPC), a nonprofit organization with members consisting of state groundwater regulatory agencies that work toward the protection of the United States’ groundwater supply, released a report in 2009 stating that the “current State regulation of oil and gas activities is environmentally proactive and preventive” and concluding that “[a]ll oil and gas producing States have regulations which are designed to provide protection for water resources.” The GWPC’s 2009 study also contended that there’s a lack of evidence that fracking conducted in deep and shallow formations presents a risk to groundwater.

Media:

• Sponsoring Rep. Louie Gohmert (R-TX) Press Release