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.
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.
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.
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.
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
(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.’
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.
- Clean Water Laws – Prior to Safe Drinking Water Act of 1974
- Gasland – The Movies
- March For Real Climate Leadership – Don’t Frack California
- Safe Drinking Water Act of 1974 and Beyond
- Safe Drinking Water – What Can We Do?
- What the Heck is Fracking?
- Climate Central – Fracking the USA: New Map Shows 1 Million Oil, Gas Wells, 2014-03-27, by Bobby Magill
- Congressional Research Service – Hydraulic Fracturing: Selected Legal Issues, 2014-09-06, by Adam Vann, Brandon J. Murrill, and Mary Tiemann
- Congressional Research Service – Safe Drinking Water Act (SDWA): A Summary of the Act and Its Major Requirements, 2014-02-05, by Mary Tiemann
- Environmental Working Group – Toxic Stew: What’s in Fracking Wastewater, 2015-03-10, by Tasha Stoiber and Bill Walker
- Mother Jones – Some Fracking Companies Illegally Use Diesel Fuel, In Violation of the Safe Drinking Water Act, 2014-08-14, by Naveena Sadasivam
- The American Presidency Project – George W. Bush Remarks Prior to a Meeting With the National Energy Policy Development Group and an Exchange With Reporters, 2001-01-29
- The Hill – We need leadership from Obama on fracking or history will repeat itself, 2015-03-05, by Lois Marie Gibbs
- The Washington Post – Papers Detail Industry’s Role in Cheney’s Energy Report, 2007-07-18, by Michael Abramowitz and Steven Mufson
- U.S. EPA – Underground Injection Control Program
- U.S. Library of Congress – H.R.6 Energy Policy Act of 2005
- U.S. Government Printing Office – Energy Policy Act of 2005
- U.S. Government Printing Office – George W. Bush Message to the Congress Transmitting National Energy Policy Legislative Initiatives, 2001-06-28
- U.S. Government Printing Office – Safe Drinking Water Act of 1974
- Wikipedia – Energy Task Force
- Wikipedia – Hydraulic Fracturing in the United States