Energy Policy Act of 2005 – Fracking and Drinking Water

The Energy Policy Act of 2005 puts the drinking water of millions of Americans at risk by exempting fracking fluids from part of the Safe Drinking Water Act.

Fracking Well and Wastewater Pits among Rural Homes - Photo: Kim Sorvig
Fracking Well and Wastewater Pits among Rural Homes – Photo: Kim Sorvig

The culprit is a tiny passage entitled Section 322 Hydraulic Fracturing on page 102 of the 551-page Energy Policy Act of 2005 (Public Law 109-58) signed by President George W. Bush on August 8, 2005:

In short, Section 322 exempts fracking fluids and underground storage of natural gas from complying with the underground injection well regulations established by the U.S. EPA to protect our underground drinking water sources, meaning our aquifers.

This post explores events and influences that led to the Energy Policy Act of 2005 and attempts to explain what Section 322 means in terms of the safety of our drinking water.

Fracking Fluids Endanger Drinking Water

There are over 1 million oil and gas wells spread across the United States. Thousands of more wells will join them as the oil and gas industry attempts to cash in on the current domestic oil and natural gas boom.

Fracking operators choose from hundreds of different chemicals to blend their proprietary (secret) fracking fluids, which may contain substances that are known carcinogens or that pose other significant dangers to human health. Just like any other structure, wells are subject to leaking or failure, fluid spills occur, and accidents happen. This can lead to contaminating the aquifers that millions of people rely on for their drinking water.

Oil and gas industry representatives claim there are no cases of water contamination caused by fracking, but this is a ridiculous statement. There are too many reports of polluted wells and contaminated public water systems near oil and gas fracking operations for it to be coincidental.

Marcellus Shale Fracking Site in Pennsylvania - Photo: Professor Robert Jackson
Marcellus Shale Fracking Site in Pennsylvania – Photo: Professor Robert Jackson

Safe Drinking Water Act of 1974

Let’s review the Safe Drinking Water Act and the section affected by the Energy Policy Act, the Underground Injection Control Program.

During the 1970’s, Americans fed up with pollution demanded the U.S. Congress take action to protect their health and wellbeing. Congress responded by passing several major pieces of environmental legislation including the Clean Air Act, Clean Water Act, and Safe Drinking Water Act.

These laws were necessary because businesses and industries of all types had demonstrated that they were either unwilling or incapable of operating in a manner that protected the public’s health and the environment. The federal government stepped in with laws and regulations.

The Clean Water Act of 1972 (CWA) gives the EPA authority to set effluent and wastewater standards and makes it unlawful to discharge any pollutant into U.S. waterways and water bodies unless a permit is obtained.

Building on the CWA, the Safe Drinking Water Act of 1974 (SDWA) authorizes the EPA to establish and enforce national drinking water standards and to establish and enforce regulations to protect underground drinking water sources.

Fracking at Beaver Run Reservoir in Westmoreland County, PA - Photo: Marcellus Protest
Fracking at Beaver Run Reservoir in Westmoreland County, PA – Photo: Marcellus Protest

Underground Injection Control Program

The intent of the Underground Injection Control Program is to prevent underground drinking water sources from being contaminated by fluids injected into underground wells.

The SDWA authorizes the EPA to establish regulations for underground injection wells and gives the states responsibility for issuing or denying injection well permits and enforcing regulations.

Injection wells are used to place fluids underground. These fluids include water, wastewater, non-hazardous liquids, hazardous wastes, brine (salt water), and water mixed with chemicals including those associated with mining, and oil and gas production. Well requirements vary depending on the fluid or fluids being injected.

The Underground Injection Control Program defines an injection well as:

  • A bored, drilled, or driven shaft, or a dug hole that is deeper than it is wide,
  • An improved sinkhole, or
  • A subsurface fluid distribution system.

Next, we will take a look at the task force that eventually led to the Energy Policy Act of 2005.

National Energy Policy Development Group

In January 2001, just days after being sworn in as the 43rd President of the United States, George W. Bush appointed his new Vice President Dick Cheney to lead the National Energy Policy Development Group. The president charged the task force with developing a national energy policy.

At the time, California was in the midst of an energy crisis with rolling blackouts affecting hundreds of thousands of people and thousands of businesses across the state. Governor Gray Davis had declared a state of emergency. President Bush referred to the crisis numerous times in his public remarks as he reinforced the need for a national energy policy.

The task force presented its 170-page National Energy Policy Report to the president in May 2001. President Bush forwarded the report to Congress on June 28, 2001 and requested Congress address the items requiring legislative action. Several years later, a national energy policy emerged in the form of the Energy Policy Act of 2005.

Fracking Well and Wastewater Pit in Cotulla, TX - Photo: Al Braden
Fracking Well and Wastewater Pit in Cotulla, TX – Photo: Al Braden

Energy Policy Act of 2005

The Energy Policy Act of 2005 is a far-reaching law intended “To ensure jobs for our future with secure, affordable, and reliable energy.” It addresses a wide range of topics including energy efficiency, renewable energy, coal, oil, natural gas, nuclear, vehicle fuels, hydrogen, tax incentives, federal land access, and research studies.

We will concern ourselves with Section 322 Hydraulic Fracturing that endangers our drinking water by amending Paragraph (1) of section 1421(d) of the Safe Drinking Water Act (42 U.S.C. 300h (d)) .

This is how it appears in the current United State Code (the red text shows the words that were added by the Energy Policy Act).

Title 42 – The Public Health and Welfare

Chapter 6A – Public Health Service

Subchapter XII – Safety of Public Water Systems

Part C – Protection of Underground Sources of Drinking Water

Section 300h – Regulations for State Programs

(d) “Underground injection” defined; underground injection endangerment of drinking water sources

For purposes of this part:

(1) Underground injection.— The term “underground injection”—

(A) means the subsurface emplacement of fluids by well injection; and

(B) excludes—

(i) the underground injection of natural gas for purposes of storage; and

(ii) the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities.

The Halliburton Loophole

From the beginning, there were questions about the suitability of having Dick Cheney head up the National Energy Policy Development Group and possible conflicts of interest due to his relationship with the oil and gas industry.

From 1995 to 2000, just prior to becoming the 46th Vice President of the United States, Dick Cheney was the CEO and Chairman of the Board of Halliburton, one of the world’s largest service providers to the oil and gas industry and currently ranking 103 on the Fortune 500 list with revenue of over $29.4 billion.

Fast forward to 2005, Cheney’s involvement in creating the national energy policy resulted in Section 322 of the Energy Policy Act being dubbed the ‘Halliburton loophole.’

People Carrying "We Cant' Drink Money" Banner during Protest March in Pittsburgh, PA - Photo: Marcellus Protest
People Carrying Banner during Protest March in Pittsburgh, PA – Photo: Marcellus Protest

There is no plausible explanation for exempting fracking fluids from regulation, except that this is what the oil and gas industry wanted. In this instance, apparently the President, Vice President, and Congress forgot whom they are supposed to serve.

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Gasland – The Movies

If you have ever used natural gas to heat your home or water, cook your food, or dry your clothes, the Gasland movies by Josh Fox are a must see. Gasland and Gasland Part II portray the human and environmental cost associated with the U.S. natural gas boom and President Obama’s all-of-the-above energy strategy.

Welcome to Gasland Map - Image: Gasland the Movie
Welcome to Gasland Map – Image: Gasland the Movie

The Movies

In 2008, filmmaker Josh Fox received a letter informing him that his home and 19 acres on the Delaware River in Pennsylvania sit atop the Marcellus Shale Formation (which holds the largest natural gas reserve in the U.S.). The letter stated the natural gas exploration company would pay him around $100,000 if he would allow them to set up shop on his land and drill beneath it using the process of hydraulic fracturing (fracking).

Fox grabbed his camera, hit the road, and began filming Gasland.

He traveled around the country talking with and filming people who were already living with natural gas fracking operations on their land, under it, across the street, upstream, or in the neighborhood.

Gasland viewers will see and hear real-life accounts of contaminated drinking water, toxic fumes, explosions, illnesses, and destroyed property values. The movie follows the attempts of these people to get help from the corporations doing the fracking and the government agencies responsible for protecting their health and the environment.

Five years later, Fox hit the road again to film Gasland Part II in which he revisited some of the people he met during the first movie, interviewed then EPA Administrator Lisa Jackson, and was arrested while attempting to film a Congressional hearing.

The Bottom Line

Josh Fox is the founder and producing artistic director of the International WOW Company. He has written, directed, and produced pieces for the stage and screen. Fox garnered media attention and accolades with the release of Gasland in 2010. The film won several awards and received a 2011 Academy Award nomination for Best Documentary. The follow up movie, Gasland Part II was released in 2013.

The Gasland movies show real people in real settings. They are informative, occasionally shocking, and often heartrending.

The stories of the people shown in Gasland and Gasland Part II could be anyone’s stories. Imagine your life without safe water for drinking, bathing, washing dishes, doing laundry, or filling your pet’s water bowl. How would you feel if you were powerless to stop a corporation from building a natural gas drilling rig next to your child’s school? What would you do if your home was now worthless and you could not afford to abandon it and move away?

I pose these questions not to dissuade potential viewers from watching the Gasland movies but to encourage you to learn about how natural gas production affects people and the environment. Ignorance is not bliss; awareness of a problem is the first step towards solving it.

Gasland and Gasland Part II should be required viewing for all corporate executives and government officials.

I think I will ask President Obama if he has seen the movies yet.

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Greening the U.S. Federal Government – Executive Order 13514

Starting with George Washington, U.S. Presidents have issued over 15,000 executive orders to date. Do U.S. federal agencies actually fulfill these directives?

I pondered this question while writing the previous post, Green Legislation – Obama Administration, which included a summary of Executive Order 13514 – Federal Leadership in Environmental, Energy, and Economic Performance.

President Obama Participating in Signing Executive Order 13514 on October 5, 2009 - Photo: Peta Souza, White House
President Obama Participating in Signing Executive Order 13514 on October 5, 2009 – Photo: Peta Souza, White House

Some readers may be able to relate to CEOs, executives, and managers handing down the private sector version of executive orders in the form of company-wide or department-wide edicts, directives, or mandates. In my experience, sometimes we followed directives to the letter, other times half-heartedly, and sometimes not at all.

Does the President garner more cooperation than a corporate CEO does? The answer is probably “It depends,” but the President as the Chief Executive of the United States does have the backing of the U.S. Constitution.

I thought it would be fun and informative to find out what actions federal agencies have taken to comply with the directives of EO 13514. Below is a summary of what I learned during a brief investigation.

Executive Order 13514 – Overview

The U.S. federal government occupies over half a million buildings, operates more than 600,000 vehicles, and purchases over $500 billion in goods and services each year 1, which enables federal agencies to make enormous reductions in carbon emissions, water use, and fossil fuel consumption, while using their considerable buying power to influence greening the government supply chain.

President Obama issued Executive Order 13514 – Federal Leadership in Environmental, Energy, and Economic Performance on October 5, 2009, directing federal agencies to lead the country towards a clean energy economy and reduce greenhouse gases by greening their own operations.

The actions and targets outlined in EO 13514 cover a wide range of measures including reducing greenhouse gas emissions, increasing energy efficiency, using renewable energy, conserving water, diverting waste from landfills, improving building performance, and buying environmentally preferable goods and services.

Graywater System at U.S. Airforce Hurlburt Field, FL - Photo: U.S. Air Force
Graywater System at U.S. Airforce Hurlburt Field, FL – Photo: U.S. Air Force

Federal departments and agencies affected by EO 13514 include the Departments of Agriculture, Defense, Energy, Homeland Security, Interior, the Environmental Protection Agency, NASA, the Social Security Administration, U.S. Army Corps of Engineers, and others.

Note: EO 13514 uses the federal government’s fiscal year (FY) calendar, which begins on October 1 of one year and ends on September 30 of the next.

Executive Order 13514 – Oversight and Information

The Council on Environmental Quality and Office of Management and Budget jointly oversee EO 13514 implementation and compliance.

U.S. Department of Homeland Security January 2014 Sustainability / Energy ScorecardThe Federal Facilities Environmental Stewardship and Compliance Assistance Center is a one-stop-shopping website providing information, tools, data, status reports, and guidance to assist federal agencies in addressing and fulfilling EO 13514 requirements.

Individual agency scorecards and strategic sustainability performance plans were relatively easy to locate, but I could not find a dashboard or report summarizing progress made to date on a federal government-wide basis, except for energy-related goals.

Executive Order 13514 – Interagency Collaboration

EO 13514 designated various agencies to work together to develop tools and guidelines to assist all agencies. A few examples are below.

  • The DOE led the development of a GHG emission accounting tool and procedure for measuring and reporting progress.
  • The GSA and DOE prepared guidelines to aid agencies in improving fleet energy performance.
  • The EPA led the effort to create guidelines for working with vendors on greening the supply chain.

Executive Order 13514 – Strategic Sustainability Performance Plans

Each agency created a sustainability plan outlining the actions it is taking and intends to take to achieve its goals and comply with EO 13514. Agencies publish scorecards and updated sustainability plans annually.

Progress on Energy Goals

The federal government is the largest energy consumer in the U.S, therefore, reducing fossil fuel use, increasing energy efficiency, and increasing renewable energy use will not only reduce greenhouse gas (GHG) emissions it will save taxpayers billions of dollars.

Greenhouse Gas Emissions Reduction Goals

EO 13514 requires each federal agency to establish a GHG emission reduction goal based on 2008 estimated emissions and achieve the goal by 2020.

The GHG emissions reduction goal consists of three categories:

  • Scope 1 – direct GHG emissions from federally owned or controlled sources, including fuels, burned on site and vehicle emissions.
  • Scope 2 – indirect GHG emissions from the offsite generation of electricity, heat, or steam purchased by federal agencies.
  • Scope 3 – indirect GHG emissions related to agency activities including vendor supply chains, delivery services, and employee travel.

Federal agencies established their 2020 targets in early January 2010.

On January 29, 2010, President Obama announced the aggregated federal agency goals are to reduce direct GHG emissions by 28% and indirect GHG emissions by 13% by 2020.

As of September 30, 2013, the federal government had reduced direct GHG emissions by 17.2% seemingly on track to meet the 28% goal by 2020 and had exceeded the 13% goal for indirect GHG emissions with a 19.8% reduction.

U.S. National Renewable Energy Laboratory South Table Mountain Campus, Golden, CO - Photo: Dennis Schroeder / NREL
U.S. National Renewable Energy Laboratory South Table Mountain Campus, Golden, CO – Photo: Dennis Schroeder / NREL
Petroleum Product Use Reduction Goal

Agencies operating a fleet of least 20 motor vehicles are required to reduce consumption of petroleum products by 2% annually through 2020. I could not locate a government-wide progress report on petroleum use.

Renewable Energy Goal

President Obama raised the bar on renewable energy on December 5, 2013, by issuing his Memorandum on Federal Leadership on Energy Management, which requires each agency to obtain 20% of their electricity from renewable energy sources by 2020, beginning with 10% in 2015.

Federal agency renewal energy use was at 9.2% of total energy use in September 2013.

My research indicates that at least in the case of EO 13514 federal agencies do take presidential executive orders seriously.

Greening the U.S. federal government is good for the planet, people, and taxpayer wallets.

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References

  1. Congressional Research Service – Executive Order 13514: Sustainability and Greenhouse Gas Emissions Reduction, by Richard J. Campbell and Anthony Andrews, December 3, 2009

Resources