United States Congress weighs the "Frack Pack"

Currently, the United States Congress is considering a group of bills aimed at extending the ability of the federal government to regulate hydraulic fracturing. The bills, commonly referred to as the “Frack Pack,” have been sponsored by Democrats in the Senate and House of Representatives. In response, Republicans in the Senate and House of Representatives have proposed legislation that would limit the federal government’s authority to regulate hydraulic fracturing.

One of the bills, the Fracturing Responsibility and Awareness of Chemicals Act of 2015 (FRAC), would empower the United States Environmental Protection Agency (EPA) to regulate hydraulic fracturing. Specifically, FRAC would remove the hydraulic fracturing exclusion from the Safe Drinking Water Act (SDWA). Currently, the SDWA does not apply to hydraulic fracturing unless the fluids used in the fracking process include diesel fuels. Additionally, FRAC would impose heightened disclosure requirements. For instance, FRAC would require companies to disclose the types of chemicals used in their fracking process. That said, FRAC contains a provision that would provide the companies with trade secret protection.

Yet another bill currently before Congress is the Safe Hydration is an American Right in Energy Development Act of 2015 (SHARED). This bill would add a provision to the SDWA, mandating that oil and gas operators implement groundwater testing before drilling operations begin. Additionally, SHARED would require operators to conduct monitoring throughout drilling operations. Under SHARED, the test results would be listed on the internet.

Additionally, Congress is considering the Focused Reduction of Effluence and Stormwater runoff through Hydrofracking Environmental Regulation Act of 2015 (FRESR). Under FRESR, oil and gas operations would no longer be exempt from the Clean Water Act’s (CWA) stormwater permitting requirements. If enacted, oil and gas operators would be required to obtain a permit permitting stormwater run-off through each stage of the fracking process.

Congress is also evaluating the Bringing Reductions to Energy’s Airborne Toxic Health Effects (BREATHE) Act of 2015. BREATHE is directed at the Clean Air Act (CAA) and would add hydrogen sulfide as a hazardous air pollutant (HAP). In addition, the bill would add oil and gas wells as a major source of hydrogen sulfide. If oil and gas wells are listed as a major source of hydrogen sulfide, the EPA would have the ability to establish thresholds for the amount of hydrogen sulfide that could be emitted from the wells. Moreover, BREATHE would also repeal the provision of the CAA that prohibits the aggregation of oil and gas wells and compressor stations when determining whether an activity constitutes a major source.

Democrats in the House of Representatives have also sponsored the Protect Our Public Lands Act (POPLA). If enacted, POPLA would ban any hydraulic fracturing operations on land leased by the federal government. However, drilling operations in operation when the bill is enacted would be permitted to continue until the lease expired or was adjusted.

On the other end of the spectrum lies the Fracturing Regulations are Effective in State Hands Act of 2015 (FRESH) and the Protecting States Rights to Promote American Energy Security Act of 2015 (PSRPAES). Under FRESH, states would have sole authority to regulate hydraulic fracturing. In fact, FRESH would authorize states to regulate hydraulic fracturing on federal lands. PSRPAES targets the Mineral Leasing Act and would bar the Department of Interior from regulating hydraulic fracturing if the state in which the drilling operations will occur already has regulates hydraulic fracturing. Indeed, PSRPAES directs the Secretary of the Interior to defer to state regulations irrespective of whether the regulations are less restrictive than federal rules or differ from federal regulations.

This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Johnjerica Hodge (johnjerica.hodge@nortonrosefulbright.com or 713 651 5698) from Norton Rose Fulbright's Energy Practice Group.