In a draft of a new rule governing hydraulic fracturing on all federal and Indian lands published in the Federal Register (43 CFR Part 3160), the BLM acknowledges that “the rapid expansion of [fracking] has caused public concern,” and concludes that the increased adoption of hydraulic fracturing demands a careful scrutiny by the federal government regarding whether or not it should be allowed on public lands. But this language is nothing more than a smokescreen to disguise the real purpose of the new rule. After all, 90 percent of all wells drilled on federal and Indian land, and administered by the BLM, already use fracking methods. And so the new rule sets out to find a “consistent, predictable regulatory framework” for future fracking. In other words, the BLM is not out to force changes to existing practices, not interested in banning the use of toxic chemicals, and, most importantly, not even inclined to admit there’s a problem at all. The proposed rule is not about protecting the groundwater we drink, it is about protecting the investment-backed expectations of oil and gas firms and their continued and unfettered access to federal and Indian land.
In the rule the BLM takes pains to define fracking as inherently safe: fracking is, according to the rule, “a common and accepted practice, and has been in oil and gas production for decades.” Moreover, as with nearly all federal regulations regarding resource extraction, it is written in the interests of industry (if not actually written by industry lawyers and lobbyist). Indeed the new rule is, admits its authors, “generally consistent with the American Petroleum Institute’s (API) guidelines.” The API is an oil and gas trade association with an average annual lobbying budget of nearly $10 million. It has spent millions of dollars spreading lies in support of the Keystone XL pipeline and, apparently, its employees moonlight as rule writers for the BLM.
Despite the fact that the BLM last updated its regulations regarding fracking in the late 1980s – before hydraulic fracturing existed as a commercially viable practice – it today “seeks to create less of an administrative burden” for industry with its new rule.
And so there’s little in the rule that actually transforms fracking practices in any meaningful way, nothing that limits the overuse of local water reserves, no ban on toxic chemicals, no independent monitoring or third-party oversight, and of course it goes without saying that no mention is made of the implications of the new rule for climate change. Indeed, the BLM is careful to ignore altogether the terminal absurdity of increasing the rate of hydrocarbon extraction on hundreds of millions of acres of federal land. Global greenhouse gas emissions have nearly doubled since 1990, and the U.S. has been the largest contributor to this increase. The proposed BLM rule, if made permanent, guarantees that the bonanza of fracking will mean a dramatic increase in the rate of greenhouse gas emissions. Don’t bother looking for any discussion of these issues in the proposed rule.
But it is only a proposed rule. What are the chances that an overwhelming public outcry in opposition to this industry-written rule could scuttle the plan? It’s unlikely. The BLM refuses to admit that fracking poisons groundwater, and thus is content to consider as equally legitimate comments for and against fracking.
A clue regarding what the final rule will look like is found under a section in the proposed rule that discusses comments the BLM has already been received. In it the BLM crudely summarizes negative comments in the most general and toothless way, and is careful to ignore any references to scientific studies of the proven environmental problems inherent to fracking. Instead negative comments are reframed as in fact actually supportive – negative commentors, according to the BLM, are actually supportive of BLM regulations as the best way to “protect groundwater.” In contrast the BLM gives the comments of industry-paid lobbyists the imprimatur of science: “BLM regulation of hydraulic fracturing is unnecessary and… no scientific basis exists that hydraulic fracturing causes groundwater contamination and… it is a low-risk operation.”
So the BLM just bides its time, waiting for the comment period to end, so it can get back to its real work – developing new industry-friendly regulation that won’t “[introduce] unnecessary new procedures or delays in the process of developing oil and gas resources on public and Indian lands.”
The BLM’s stated mission is “to sustain the health, diversity and productivity of the public lands for the use and enjoyment of present and future generations.” but this surely needs revision now. Perhaps, “No Trespassing: these poisoned, waterless wastelands belong to ExxonMobil” might better reflect the real mission of the agency.
David Correia is an Assistant Professor in the Department of American Studies at the University of New Mexico and the author of “Properties of Violence: Law and Land Grant Struggle in Northern New Mexico.”