by James A. Pardo and Brandon H. Barnes
Speaking about upcoming Bureau of Land Management/Department of Interior (DOI) rules for hydraulic fracturing (fracing) on federal land, DOI Secretary Salazar recently opined that state regulation of fracing was insufficient and suggested that more stringent federal regulations may be required. This is a sea change for Salazar, who previously made clear his endorsement of state fracing regulation. While it is possible that Salazar’s comments were meant only to defend the Obama Administration’s issuance of rules for fracing on federal land, that is not the way the comments have been interpreted. Salazar’s criticism of state fracing efforts as being "not good enough for" him was unambiguous. The DOI Secretary’s comments came on the same day that DOI extended the period for public comment on the DOI rules by 60 days to September 10, 2012.
The issue of state versus federal fracing regulation has been debated since the process first began garnering significant media attention in the late-2000s. With some exceptions, the U.S. Environmental Protection Agency (EPA) and other federal agencies cannot regulate the fracing process themselves unless and until Congress reverses its 2005 exemption of fracing from the Underground Injection Control rules of the Safe Drinking Water Act. Predictably, Salazar’s comments have been seized on by many national non-governmental organizations (NGOs) that have long advocated for federal control over what has always been a state regulated process. His comments reinvigorate a debate that state regulation advocates appeared to have largely won last year, when Salazar and several members of President Obama’s Department of Energy Task Force on Fracturing openly and clearly expressed their support for state regulatory efforts. Fracing stakeholders need to be keeping a close eye on the federal-versus-state regulatory debate, as it is certain to gain increased media coverage and political attention in this election year.