The Latest Fracas over Fracking: Legislation Aims to Ban Fracking

Akin Gump Strauss Hauer & Feld LLP

Last week, a subset of the Democratic Senators and Representatives who previously led the introduction of the “Green New Deal” proposed legislation that, while a longshot, would alter dramatically the U.S. energy industry. Sen. Bernie Sanders (I-VT) and cosponsor Sen. Jeff Merkley (D-OR) have proposed the Fracking Ban Act (S. 3247), which would end all U.S. onshore and offshore hydraulic fracturing activities, or “fracking,” by January 2025. Reps. Alexandria Ocasio-Cortez (D-NY) and Darren Soto (D-FL) are expected to propose similar legislation in the U.S. House of Representatives.

The Fracking Ban Act would impose an immediate prohibition on federal agencies’ authority to grant permits to expand fracking infrastructure. Subsequently, by the end of January 2021, the bill would require the U.S. Environmental Protection Agency to identify all current and former fracking wells in the United States to tee up a nationwide revocation of federal permits for those wells located within 2,500 feet of homes, schools and other inhabited structures. During this time, a federal interagency working group, called the Just Transition Committee, would make recommendations to Congress to ensure the health and safety of communities impacted by the fracking phase out.

While most of the Democratic candidates in the 2020 presidential campaign have called for some limitation of fracking, such proposals are limited by the constraints of executive authority. This legislation, the first of its kind, represents a sweeping effort that would both stop the expanded use of and, ultimately, rescind previously approved fracking permits. While not likely to advance or attract more than a handful of Democratic supporters in the current Congress, the Fracking Ban Act represents a dramatic approach that would reshape the oil and gas sector and the American economy.

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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