Hydraulic Fracturing – Regulatory Summary

February 3, 2014

FrackingThe issue of “hydraulic fracturing” or “fracking” has been a frequently mentioned topic in the news for the past couple of years. The recent oil and gas boom has been attributed to this practice which is “a mechanical method of increasing the permeability of rock to increase the amount of oil and gas produced from the rock”, N.D. Cent. Code § 38-08-25. Fracking has also been criticized as being damaging to the environment, see VT. Stat. Ann. tit. 29, § 571. Given the controversy, regulation of fracking is likely to heat up.

The phrase “hydraulic fracturing” appears in the statutes of 17 states, see Cal. Pub. Res. §3152 (“hydraulic fracturing” defined), and in the administrative codes of 29 states, see N.Y. Comp. Codes R & Regs. tit. 9, §7.41 (requiring further environmental review of high-volume hydraulic fracturing in the Marcellus Shale). Only one section of the United States Code refers to “hydraulic fracturing”, see 42 U.S.C.A. § 300h (protection of underground sources of drinking water, regulations for state programs), and 13 sections of the Code of Federal Regulations have such a reference, see 40 C.F.R. § 98.233 (calculating GHG emissions).

In 2012, Vermont prohibited hydraulic fracturing, see VT. Stat. Ann. tit. 29, § 571, and New Jersey declared a moratorium on the practice, see 2012 N.J. Sess. Law Serv. 194 (West). However, this is in contrast to the majority of statutes and regulations relating to hydraulic fracturing that appear to allow the practice, see, for example N.D. Cent. Code § 38-08-25 (hydraulic fracturing designated as acceptable recovery process), IDAPA (hydraulic fracturing).

As of the beginning of February 2014, there are bills in 9 states that substantively relate to the practice of hydraulic fracturing. Here is a summary of the proposals so far:

  • Hawaii H.B. 2359 and S.B. 2940 propose a prohibition of hydraulic fracturing.
  • Indiana H.B. 1299 proposes to prohibit municipal regulation of hydraulic fracturing.
  • Maryland H.B. 409 proposes certain prohibited acts relating to hydraulic fracturing wastewater.
  • Maryland S.B. 360 and H.B. 292 propose to prohibit hydraulic fracturing for natural gas.
  • Nebraska L.B. 856 proposes to require well metering related to hydraulic fracturing.
  • New Hampshire H.B. 1608 proposes to prohibit hydraulic fracturing for natural gas.
  • New Jersey A.B. 1136 proposes a moratorium on hydraulic fracturing.
  • New Jersey A.B. 2108 proposes the prohibition treatment, discharge, disposal, or storage of wastewater, wastewater solids, sludge, drill cuttings or other byproducts from natural gas exploration or production using hydraulic fracturing.
  • New Jersey A.B. 2151 proposes the prohibition of the drilling technique of hydraulic fracturing.
  • New York S.B. 1201 proposes to suspend hydraulic fracturing for natural gas or oil.
  • Virginia H.B. 915 proposes that permits for the lease for oil or gas exploration on state-owned uplands allow the use of hydraulic fracturing.
  • West Virginia H.B. 2137 proposes specific authorization for local zoning ordinances that regulate drilling and hydraulic fracturing.

You can keep track of future legislative or administrative action relating to hydraulic fracturing on Westlaw by using the Capitol Watch service.