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BLM Must Reverse Course on Weak Fracking Rule

Matthew McFeeley

Posted August 21, 2013

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This Friday, the Bureau of Land Management (BLM) will close the official comment period for its proposed rule to govern fracking on public and Indian lands across the US.  The BLM is faced with a choice: whether to capitulate to the oil and gas industry’s demands and finalize the current weak rules, or to heed the call of hundreds of thousands of Americans who have written in to ask the Bureau to institute stronger protections for our health and environment. 

We are hopeful that the BLM will choose to protect the public lands, the people who visit them, and those who live, work and go to school nearby.  Unfortunately, however, the BLM has not instilled confidence that it will make the right choice.  Since February of last year, the public has seen four drafts of the proposed rules (two of them leaked by agency insiders) and each draft has been weaker than the one before. 

Here is just a taste of the ways the proposal has been weakened since the public first saw it last February:  (For more information on these and other problems with the current proposal, see these blogs from my colleagues: Amy Mall with an overview of our concerns and Briana Mordick, who covers problems #4 & 5 in detail.)

  1. Disclosure only after fracking:  The first proposal would have required disclosure of the chemicals to be used in advance, while the current draft requires disclosure only after-the-fact.  Prior disclosure allows BLM and other agencies to evaluate and manage the risks that the particular chemicals pose.  It also allows locals to conduct appropriate baseline testing and is a basis for future monitoring of water quality.  Finally, emergency personnel need to know what chemicals are present at the well site to allow them to prepare for and adequately respond to accidents. 
  2. Companies can withhold information they deem confidential without evidence or oversight: Under previous versions of the rule, BLM would have required companies to submit chemical information they claimed was a “trade secret” to the agency along with factual justification demonstrating that the information was legitimately confidential.  But in the newest draft, the BLM proposes to allow companies to unilaterally determine what information they can keep confidential without even providing any evidence.  If the BLM adopts these rules, they would be much weaker than the rules in states like Wyoming and Pennsylvania and would fly in the face of unanimous recommendations of President Obama’s advisory panel on fracking which stated that there should be a “very high” barrier to claiming trade secrets.       
  3. Statewide exemptions: The new proposal allows BLM discretion to exempt whole states from the already-limited provisions of the rules if the BLM determines that a state’s rules meet the same objective.  However, BLM has not provided any indication of how this decision will be made and has made no assurances that the public will be given an opportunity to give input.  Unfortunately, many states have poor records of enforcing their rules on oil and gas drilling and fracking, so even if the rules on the books are strong, an exemption may reduce the protections that are effectively in place for human health and the environment.
  4. Narrowed scope of the rule: The proposed rule would exempt well stimulation techniques other than fracking: see Briana Mordick’s blog for more information. 
  5. Generic cement tests allowed after fracking: The new proposal would allow cement tests from other wells to be used as a proxy, and allow submission after-the-fact, unlike earlier versions: see Briana Mordick’s blog for more information. 

In the next few days, NRDC and partner organizations will submit detailed technical comments to the BLM demonstrating the need for improving the proposed rules and the feasibility of doing so.  As the BLM itself has noted, the current rules for fracking and other well stimulation are outdated, having been last updated more than thirty years ago.  We cannot afford to wait another thirty years before our public lands, air, and water are protected.  

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