The Facts on Fracking Chemical Disclosure

Q: Are the chemicals in fracking solution protected from being made public by a law passed while Dick Cheney was vice president?

A: Yes. A 2005 law bans the federal government from requiring companies to disclose fracking chemicals. But 28 states do require disclosure of some fracking fluids.

FULL QUESTION

Is it true that the chemicals in fracking solution are protected from being made public by a law or bill passed by Congress while Dick Cheney was in President Bush’s cabinet? Is it true that Cheney strong-armed members in Congress to pass the bill? Is it true that the fracking companies don’t have to reveal the chemicals in fracking solution?

FULL ANSWER

Hydraulic fracturing, or fracking, is a method used to obtain natural gas and oil from rock formations underground. The process involves injecting water, sand and various chemicals into drilling wells at high pressure, releasing oil and gas that would otherwise be difficult to retrieve.

Fracking gained public attention after the technique led to a boom in U.S. oil and gas production. In 2000, around 26,000 fracked wells produced 3.6 billion cubic feet per day of natural gas. In 2015, 300,000 fracked wells produced more than 53 billion cubic feet per day, according to the Energy Information Administration. The EIA also shows a similar increase for crude oil production over that time period.

Signed into law by President George W. Bush, the Energy Policy Act of 2005 leaves the regulation of fracking to the states, most of which do require some, but not all, chemical disclosure.

As for Vice President Dick Cheney’s role in passing the law, he chaired the National Energy Policy Development Group, which advocated the expanded use of fracking in its 2001 final report, and he lobbied Congress to pass the 2005 law. Critics may believe that Cheney “strong-armed” Congress to pass the law, but the fact is that the bill easily passed both the House and the Senate with bipartisan support.

Why the Feds Can’t Regulate Fracking

The jurisdiction to regulate fracking didn’t always lie only in the hands of the states.

The Safe Drinking Water Act of 1974 did allow for the federal regulation of fracking, or more generally all “underground injection.” The act defines this term as “the subsurface emplacement of fluids by well injection.”

Yet the U.S. Environmental Protection Agency didn’t see fracking as within its jurisdiction under the Safe Drinking Water Act for nearly 20 years after the act’s passage. The EPA reasoned the term only applied to wells whose “principal function” is the emplacement of fluids — i.e., it wouldn’t apply to natural gas wells.

But in 1997 an 11th Circuit Court judge ruled that fracking did fall “within the plain language of the statutory definition of ‘underground injection’” in a case between the Legal Environmental Assistance Foundation and the EPA.

Then in 2005 the Energy Policy Act amended the Safe Drinking Water Act’s definition of “underground injection” to specifically exclude “fluids or propping agents (other than diesel fuels)” used during fracking operations related to oil, gas, or geothermal production.

President Bush signed the bill, which passed the Senate, 74-26, and the House, 275-156, with bipartisan support. Then-Sen. Barack Obama supported the bill, for example.

However, Obama tried, unsuccessfully, to regulate fracking through the Interior Department when he became president.

In March 2015, the department, through the Bureau of Land Management, released a final rule that aimed to “help protect groundwater by updating requirements for well-bore integrity, wastewater disposal and public disclosure of chemicals” related to fracking activities specifically on federal and tribal lands.

In other words, the BLM rule would have made companies report some of the chemicals they use during fracking operations on federal and tribal lands in all 50 states. It would have also regulated how companies construct wells and dispose of fracking fluids, among other provisions.

But the BLM fracking rule was struck down in June 2016 by U.S. District Judge Scott Skavdahl, who Obama appointed to the court in 2011. Skavdahl specifically pointed to the Energy Policy Act of 2005 in his ruling.

“The issue before this Court” is not to determine whether fracking is “good or bad for the environment or the citizens of the United States,” but to evaluate whether Congress has given the Interior Department authority to regulate fracking, he wrote in his ruling. “Given Congress’ enactment of the EP Act of 2005,” to conclude that it has delegated BLM authority to regulate fracking “lacks common sense,” he concluded.

The Cheney Connection

In his second week in office, Bush created the National Energy Policy Development Group, which was headed by Cheney. In its final May 2001 report, the group recommended that the “President direct the Secretaries of Energy and the Interior to promote enhanced oil and gas recovery from existing wells through new technology,” specifically fracking.

Congress then moved to pass an energy plan that incorporated the task force’s recommendations. But the Energy Policy Act of 2002 and the Energy Policy Act of 2003 both failed in Bush’s first term. It wasn’t until his second term that the Energy Policy Act of 2005 passed.

The 2002 bill, as first introduced in the House, initially didn’t address fracking. But the bill as amended by the Senate did address it in section 610. Specifically, it imposed a three-year freeze on regulation of fracking until a study could be done on its impact on water quality. The amendment was inserted by Sen. Jeff Bingaman of New Mexico, a Democrat.

Similar to the 2005 act, the 2003 House bill, as introduced, then included language (section 12201) that excluded “the underground injection of fluids or propping agents pursuant to hydraulic fracturing operations related to oil or gas production activities” from the Safe Drinking Water Act.  

The Bush administration supported the Energy Policy Act of 2005, and Cheney lobbied for it. The vice president met with Rep. Joe Barton, sponsor of the bill, on April 5, 2005. A press release about that meeting said, “Cheney and Barton both agreed to work in their respective branches of the government to pass the bill into law and help meet America’s changing energy needs.”

Regulating Fracking Under State Law

Even though fracking can’t be regulated by the federal government, it can under state law.

Along with other regulations related to the practice, as of January 2016, 28 states require the disclosure of some, but not all, chemicals used during fracking. Twenty-three states use a registry called FracFocus, which is the most comprehensive database on fracking chemicals.

But fracking operators don’t have to report all the chemicals they use in part because of trade secrets laws, which also protect Coca-Cola’s recipe, for example. So what proportion of fracking chemicals do companies reveal in states with disclosure laws?

According to the EPA, fracking operators withheld 11 percent of the chemicals they reported to FracFocus between January 2011 and February 2013. As a reason for not disclosing information, companies said the information was “confidential,” a “trade secret” or “proprietary.” The EPA also found that 70 percent of disclosures withheld one chemical or more.

But the rate of withheld chemicals may have increased since then, according to researchers at Harvard University.

Kate Konschnik, the policy director at Harvard’s Environment Law Program, and a colleague found that 18.9 percent of fracking chemicals reported on over 53,000 forms filed to FracFocus between November 2012 and April 2015 “were intentionally withheld from public disclosure.” And 92.3 percent of these forms included “at least one withheld ingredient,” the researchers reported in their paper published in the journal Energy Policy in January 2016.

Like the EPA, the researchers found that companies didn’t always specifically cite “trade secret” as the reason for withholding chemical information: Companies also cited “proprietary,” “confidential” and “n/a” as reasons.

Trade secrets have the “clearest and most rigorous legal standards,” as they’re “limited to information about a production method, process or formula … which the owner has taken steps to protect,” the researchers pointed out.

The term “confidential,” on the other hand, is mentioned in some state disclosure requirements, but it’s often not defined. And there are “virtually no definitions or standards” for citing “proprietary” or “n/a” as reasons for withholding information, the researchers said.

The study found that fracking companies withheld chemicals citing “confidential” or “proprietary” grounds in states that only accept “trade secret” as an acceptable justification. For this reason, the researchers reasoned that “some companies are unaware of state-specific rules or do not expect enforcement.”

Overall, “the less rigorous the standard” for justification (i.e., proprietary instead of trade secret), “the more likely it has been used to justify withholding information in FracFocus,” the researchers concluded.

Fracking Chemicals and the Environment

But are the chemicals associated with fracking hazardous to human health and the environment in the first place? And are they reaching sources of drinking water?

The EPA attempted to answer these questions in its final report on the relationship between fracking and drinking water resources that was released in December 2016.

Here’s what the agency found: There are select cases where evidence suggests that fracking chemicals have reached drinking water resources and impacted human health and the environment. But limited data prevents the agency from making general conclusions.

For example, the EPA report cites studies that have linked fracking and the contamination of drinking water resources in instances where companies spilled fracking fluids, experienced equipment failure or fracked wells too close in depth to drinking water resources (i.e., shallow fracking), for example.

The report also notes studies that found associations between the proximity of pregnant mothers living next to natural gas wells and increased cases of congenital heart defects and lower birth weights. Other studies cited in the report found an association between living closer to natural gas wells and an increase in the number of reported respiratory and skin issues. And another study found evidence to support a link between the contamination of streams by fracking fluids and the death of fish and other aquatic animals.

Overall, “while combined evidence suggests hydraulic fracturing has the potential to impact human health via contamination of drinking water resources, the actual public health impacts are not well understood and not well documented,” the EPA concluded.

At least three factors prevented the agency from making definitive conclusions.

First, scientists haven’t evaluated the potential human health and environmental toxicity of the majority of chemicals known to be used in fracking. But this dearth of data isn’t specific to fracking – researchers have estimated that “tens of thousands of chemicals in commercial use” have “not undergone significant toxicological evaluation,” the EPA report notes.

The “potential hazards” associated with chronic ingestion of the chemicals with toxicological profiles include cancer, immune system effects, changes in body weight and changes in blood chemistry. Other fracking chemicals also are known to be specifically toxic to the heart, nervous system, liver, kidneys, reproduction and development.

Second, scientists don’t have comprehensive, national data on when, where and how much of these chemicals are reaching drinking water resources and being ingested by people.

In select cases, fracking fluids have reached drinking water resources through spills, leaks and inadequate disposal, as mentioned previously. Fracking chemicals have also been detected in drinking water resources at levels that could impact human health. Still, “there is a lack of systematic studies examining actual human exposures to these chemicals in drinking water as a result of hydraulic fracturing activity,” the report said.

Third, companies don’t reveal all the chemicals they use, for the reasons described above. “Having a better understanding of the chemicals and formulations, including those that are [deemed confidential business information], along with their frequency of use and volumes, would greatly benefit risk assessment and risk management decisions,” the EPA report concluded.

To sum up, the federal government can’t regulate fracking, including chemical disclosure, because of a provision in the Energy Policy Act of 2005. This act was preceded by a 2001 energy policy report that advocated for the expanded use of fracking and was released by a group chaired by Cheney. While 28 states do have chemical disclosure laws on the books, companies do not disclose all the chemicals they use and sometimes do not fully comply with the laws. In order to make a definitive conclusion about the impact of these chemicals on human health and the environment nationally, scientists need to conduct more research. However, there is evidence to support their impact in select cases.

Editor’s Note: SciCheck is made possible by a grant from the Stanton Foundation.

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