Federal Regulation of Hydraulic Fracturing Spurned by Senate

Stoel Rives LLP

[co-author: Shannon Morrissey - Law Clerk]

On Wednesday, January 28, the Senate voted against Amendment 48 which would allow the federal Environmental Protection Agency (“EPA”) to regulate hydraulic fracturing (“fracking”) on state and private lands.  The measure was presented by Senator Kirsten Gillibrand (D-NY) as a negotiated amendment to the Keystone XL Pipeline Act.  The amendment would have repealed sections of the Energy Policy Act of 2005 which exempt fracking from the underground injection control (UIC) provisions of the Safe Drinking Water Act (“SDWA”).  (SDWA § 1421(d).)  Environmental organizations refer to this provision as the “Halliburton loophole.”  Other attempted amendments to the Keystone XL Pipeline Act have focused on reducing fossil fuel use and regulation of carbon (climate change regulation).

The final vote tallied at 35 for the amendment and 63 against it – a significant defeat.  This is noteworthy because it is the first time the Senate has voted on this issue in several years.  The Senate vote also portrays tensions between the White House and Congress.  It presents a “clear message from the U.S. Senate of broad bipartisan support to keep regulation of hydraulic fracturing in the capable hands of the states and out of the grasp of the Obama Administration,” stated Senator James Inhofe (R-OK).

To date, fracking has only been regulated by the states, not the federal government.  For example, California’s Senate Bill 4 (“SB 4”) represents the most comprehensive state regulatory scheme for well stimulation treatments, which includes fracking.  (For more information about SB 4, view our SB 4 blog posts.)  A similar federal bill, Fracturing Responsibility and Awareness of Chemicals Act (H.R.1921, 113th Congress) also failed in the House of Representatives in 2013.  It seems that hydraulic fracturing regulating will remain firmly in the states purview for the foreseeable future.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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