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Illinois poised to lead the nation in strong fracking standards

Ann Alexander

Posted February 21, 2013

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Six months ago, the notion that Illinois could step forward as a national leader in regulating the risky and problematic process of horizontal hydraulic fracturing would have provoked deep skepticism.  And the idea that this could be done by bipartisan consensus, with industry and the environmental community working together, would have sounded like a pipe dream.  

Yet today, with the introduction of the negotiated bill HB2615, our state is poised to do just that.  This legislation is the product of an unprecedented stakeholder process that brought together representatives from all of the concerned state agencies, the drilling industry, and the environmental community, as well as legislators from both sides of the aisle.  No compromise is ever perfect, and this bill is certainly no exception.  But in its current form, it would represent the strongest and most comprehensive law governing hydraulic fracturing – or “fracking” – in the nation.   While some other states have put in place bits and pieces of the kinds of protections that are essential to protect the public, no state has yet put together as many of the essential elements of a strong regulatory scheme.   In most other states where this problematic process has taken off, regulators have been swamped by a gold rush mentality, convinced by the extortionist rhetoric of industry lobbyists that even modest attempts to protect the public will drive away their chance of prosperity. 

The result, in states like Pennsylvania, Ohio, Colorado, and North Dakota, has been a documented steady onslaught of devastating but predictable consequences of under-regulation.   Horizontal fracking, a relatively new process for getting oil and gas trapped in layers of shale out of the ground, generally involves injecting more than a million gallons of water laced with chemicals – often toxic – at high pressure as far as 10,000 feet below the surface, to crack and hold open the shale so oil or natural gas can flow out.  Not terribly surprisingly, this process has led to surface and ground water contamination, methane leaking into the water supply and people’s homes, and occasionally earthquakes when the vast volumes of wastewater are injected underground for disposal. 

Industry is now eager to start horizontal fracking in Illinois, which sits on top of the oil-and-gas-rich New Albany Shale, and right now has nothing preventing it from doing so, except the regulatory uncertainty created by pending legislative efforts.  As NRDC has made clear previously, we would have strongly preferred that the General Assembly place a moratorium on the whole deeply dicey business of horizontal fracking until its public health risks can be fully studied and addressed.  Last fall, our coalition of Illinois environmental organizations made significant headway toward that end, racking up co-sponsors for a 2-year moratorium.  However, it has since become evident that the political winds are strongly blowing toward a regulatory regime -- and that the current negotiation process is largely equivalent to what the moratorium bill would have mandated.   Given that reality, and the need to take immediate steps to protect Illinoisans, NRDC chose to embrace Plan B, stepping into the stakeholder negotiation to seek the most stringent science-based regulation possible at this juncture.

The result is a bill that, for all of its imperfections, is the strongest around.  It pulls together a suite of safeguards that go a long way toward holding the industry accountable for the risks inherent in horizontal fracking and requiring that they be minimized.  Among other things, HB 2615 provides for:

  • Extensive regulation of the drilling process, mandating numerous best practices.
  • A requirement that all waste – which includes “flowback” of all the chemical-laced water pumped into the ground – be stored in closed tanks, rather than the pits that chronically leak and overflow elsewhere.
  • Restrictions on venting and flaring of natural gas (which contains the potent greenhouse gas methane, as well as other harmful constituents, and turns to smog).
  • A ban on the dangerous practice of injecting diesel (which contains carcinogenic hydrocarbons).
  • Required disclosure of all fracking chemicals to the public before operations commence (and limits on industry’s ability to claim that this information is a trade secret).
  • Citizen rights to public hearings concerning proposed permits, and to appeal permits that are granted.
  • Citizen enforcement against violations of law or permits.
  • Provisions to protect the state’s water supply, including authority to deny permits as necessary during drought conditions.
  • Baseline and post-frack testing of potentially affected waters to help identify instances in which contamination may be associated with fracking.
  • A presumption of liability for contamination that appears post-fracking in proximity to operations.
  • A detailed application, containing information about planned operations, that must be posted on a state web site.
  • Setbacks (albeit not always as large as we believe are necessary) from population centers – including schools, residences, and nursing homes – as well as water resources and nature preserves.
  • Mandatory plugging of nearby abandoned wells that can serve as pathways for contamination.
  • Regulatory authority to address the problem of earthquakes induced by underground waste injection.
  • Bonding and insurance requirements to enhance financial accountability.

Despite this relatively strong suite of protections, the bill leaves unsolved a number of issues that the state will need to address as fracking moves forward.  For one, the bill does nothing to provide local communities with power to more stringently regulate fracking if the residents see fit.  For another, it does nothing to limit the practice of “forced pooling,” a creature of the existing state Oil and Gas Act that allows landowners to be forced to lease their mineral rights when they share a “pool” of oil or gas with neighbors who wish to tap it.  Moreover, the federal exemptions the oil and gas industry enjoys need to be closed, like the loopholes in the Clean Air Act, Clean Water Act, and the federal loophole that exempts drilling and fracking waste from being treated as hazardous.   Generally speaking, many of the protections in the bill (especially with respect to air pollution) could be further strengthened.  While HB 2615 is strong and many aspects are unprecedented elsewhere, it is important that states – including Illinois, for that matter – treat it as a floor, not a ceiling, a fundamental set of protections that can be built upon and improved over time. 

And, of course, there is the continuing risk that notwithstanding our negotiated agreement, industry lobbyists may work in the days ahead to strip away the protections we have fought so hard for.  If they succeeded even in part, we would unfortunately be back to square one, fighting for a moratorium until adequate protective legislation is in place.

But for now, this bill represents a positive step forward for Illinois and the nation.  Thanks are owed to all who helped make this unlikely result possible, including most notably Assistant Majority Leader Representative John Bradley (D-Marion), the downstate legislator from the heart of potential fracking territory who ably facilitated the negotiations; House Speaker Michael Madigan’s office, which managed the complex drafting; Attorney General Lisa Madigan, whose office worked relentlessly to ensure that environmental protection and citizens’ rights where at the center of any fracking proposal ; and House Majority Leader Barbara Flynn Currie (D-Chicago) and Representatives Ann Williams (D-Chicago) and Naomi Jakobsson (D-Champaign), who fought hard for the most protective environmental provisions now in this bill.  And we would be remiss if we did  not also praise the work of Representatives Mike Bost (R-Carbondale) and David Reis (R-Onley) who prioritized the lengthy and at times testy stakeholder meetings, but showed commitment to engage on shared principles.    

There is a long road between introduction of a bill and it becoming law, but Illinois has at least gotten off to a very good start toward taking on a much-needed leadership role.   NRDC will continue our work in the days ahead to ensure the strongest fracking safeguards possible for Illinois.

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Dawn DannenbringFeb 22 2013 10:21 AM

Pennsylvania actually had quite strong regulations. They just haven't been enforced. The industry regularly violates the regulations (over 3000 violations in PA since 2009) and pays the fines as part of standard operating procedure. We will face that here in Illinois too. THIS INDUSTRY CAN'T BE REGULATED.“New York Governor Cuomo just extended their state moratorium on fracking because more scientific research is needed. Is science different in Illinois?” We need a ban on fracking in Illinois.

Ann AlexanderFeb 22 2013 06:06 PM

Dawn, thanks for your comment. NRDC pushed hard for a moratorium last fall., However, it became very clear that a regulatory bill had overwhelming support,. Our choice was no longer between a regulatory bil and a moratorium, but between a strong regulatory bill and a weak one. Accordingly, a large cross-section of the environmental community decided to enter the negotiations and push as hard as we could for strong protections, because we felt it would be irresponsible not to. In short, the difference between New York and Illinois is their respective political realities.

I would point out in addition that the bill introduced yesterday contains many protections that Pennsylvania doesn't have. It requires that all fracking wastewater be stored in tanks, where Pennsylvania allows pits (which leak and spill). It requires pre-fracking disclosure of chemicals, and allows citizens to challenge trade secret claims, unlike Pennsylvania;s rules. And regarding enforcement, not only is Illinois' AG Lisa Madigan very committed to strong enforcement, but unlike Pennsylvania's scheme the Illinois bill allows for citizen suits, so that any person adversely affected by a fracking operation can sue for legal violations. Although the bill is far from perfect, we think those are all important steps forward.

Environmental EngineerFeb 23 2013 09:05 AM

In the version I downloaded, in Section 35 (a) (3) and elswhere the insurance coverage is stated as $5,000,0000 (sic). Do you know whether that's proposed at five or fifty million?

Patty RykhusFeb 25 2013 11:41 AM

I am tortured by the 2 Bills, the moratorium bill and the regulation bill. I realize a lot of work has gone into both. I really want a moratorium, but I am not sure politically if it is possible or not. The regulation bill is good, but I see some glaring omissions in it and fear that its enforcement will be at issue (as in the other states). The history of local damages run far and wide... who is there to protect the people? it seems there are lots who want to protect the industry.

And for the life of me, with fracking and with coal... shouldn't new permits somehow be tied to enforcement and compliance?

Should a company be able to get a new permit if they are out of compliance with others?

That should be addressed, especially in this case.

Just my opinion.

A. McMichaelFeb 25 2013 01:23 PM

There are many, many areas not covered in this bill. There is no local control over water usage, truck traffic/road usage, storage of frack sand. There is no provision for training of local responders--accidents will happen. How will local medical services be trained and financed? Flowback can be stored in 'temporary' pits. Why allow that? It's a disaster waiting to happen and releases toxic fumes. The national EPA now says more studies are needed. 'With limited data human health risks are uncertain, states may design incorrect or ineffective emission control strategies, and EPA’s decisions about regulating industry may be misinformed.’ (Arthur Elkins—EPA Inspector General—2/21/13) IL HB1418 in support of a moratorium is the only answer.

Ann AlexanderFeb 25 2013 04:03 PM

Thanks everyone for your comments.

Environmental engineer. It is $5 million. We would like for it to have been higher. But it's important to note that only a small handful of states even have any insurance requirement at all, and generally the dollar amounts are considerably lower (except for Ohio which is also $5M). Bear in mind that most states' bonding requirements, to the extent they exist at all, are also much lower (e.g, $100K in Colorado for 100 or more wells, $200K in Alaska).
Patty Rykus -- tortured is a good word for how this whole situation has made many of us feel. As we have made clear in our public statements (including this blog), we think the better course of action is to hold off on fracking altogether until the practice is studied more thoroughly. But politically, we simply did not have that option in the General Assembly as key leaders lined up behind a regulatory bill. Our choice became not one between a moratorium and a regulatory bill, but between a (reasonably) good regulatory bill and a bad one. Re your specific concerns, the bill does in fact prohibit issuance of a permit if an operator has unaddressed violations. I have listed in the blog what I think the other major omissions are, and our intent to remain active to remedy them. I would be interested to know if there are others that specifically concern you.
A. McMichael -- you are correct that the bill does not cover all potential indirect consequences of fracking. It was not the place of this particular bill regulating the activity of fracking itself to address separate subject matter. The reason for the temporary pit is that the alternative, in the event flowback volumes are larger than anticipated, is for the excess flowback to simply spill onto the ground. It is much better in our view to have it go into a well-constructed lined pit, where it may only remain for a few days. Regarding local control, we fought very hard for that and lost due to overwhelming political opposition -- and we will continue to pursue that in the future. Bear in mind though that the bill provides a package of tools for local citizen involvement that other states for the most part do not have: citizen suits, the right to challenge permits, full evidentiary public hearings, and the ability to challenge trade secret determinations.

Joe ToigoFeb 26 2013 03:04 PM

I own an Illinois Land and Water Reserve ( which is one step below a nature preserve). Is there any protection for such property, and if so what is the setback proposed?

Jack OssontFeb 28 2013 01:53 PM

Ms. Anderson:

Your article is a gasman’s apologist’s dream. Not only do you play the role of a “stakeholder”; (read one of the elitist to sit at a table and bargain for people who will bear the burden of corporate usurpation of their rights), but you as a representative of NRDC don’t mention your organization’s failure to actively organize grassroots resistance to the industry with who you sit down in “learned council.” Thus your stakeholder generated, publicized, resulting law turns out to not represent the interests and the protections for the people in affected communities, but rather for the permitting of the offensive practice under much less protection than the people need. If you want proof of the last point look no further than any of the 30+ states that have accepted the position for which you apologize. Please look in your mirror and ask yourself “Does this result reflect what people want or what my employer and the industry thinks is possible?” NRDC has been a handmaiden to industry’s wants for a long time and I am not surprised by the results, just your cheekiness in not admitting it; to whit:

“Despite this relatively strong suite of protections, the bill leaves unsolved a number of issues that the state will need to address as fracking moves forward. For one, the bill does nothing to provide local communities with power to more stringently regulate fracking if the residents see fit. For another, it does nothing to limit the practice of “forced pooling,” a creature of the existing state Oil and Gas Act that allows landowners to be forced to lease their mineral rights when they share a “pool” of oil or gas with neighbors who wish to tap it. Moreover, the federal exemptions the oil and gas industry enjoys need to be closed, like the loopholes in the Clean Air Act, Clean Water Act, and the federal loophole that exempts drilling and fracking waste from being treated as hazardous”.

Ann AlexanderFeb 28 2013 08:48 PM

Joe Toigo -- although I'd need to know more details about your property, the bill does state that there are 750 foot setbacks from any "site on the register of land and water reserves."

Jack Ossont -- I won't attempt to respond to your comment point by point because its tenor suggests that I'm not likely to change your views. However, I will cop to one of your accusations, which is that our approach here reflects "what my employer. . .thinks is possible" -- or, put another way, that generally at NRDC we engage in reality-based advocacy, and consider that to be a good thing. I would like to think that, like the Red Queen, I could do six impossible things before breakfast, especially if one of them had to do with getting a perfect fracking bill through the Illinois General Assembly, or banning fracking in Illinois altogether. However, since I can't, we took the approach that we thought would get at least some protections immediately in place given that the status quo alternative is virtually no regulation at all to governing the fracking industry, which is coming here whether we like it or not.

And, by the may, my name is Ms. Alexander, not Ms. Anderson as you called me, which I am hoping does not reflect the care with which you read my post.

Comments are closed for this post.


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