SENATE VOTED AGAINST AMENDMENT 48 WHICH WOULD ALLOW THE FEDERAL ENVIRONMENTAL PROTECTION AGENCY (“EPA”) TO REGULATE HYDRAULIC FRACTURING (“FRACKING”) ON STATE AND PRIVATE LANDS
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 The amendment would have repealed sections of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. 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.