Not a Lexis Advance subscriber? Try it out for free.
LexisNexis® CLE On-Demand features premium content from partners like American Law Institute Continuing Legal Education and Pozner & Dodd. Choose from a broad listing of topics suited for law firms, corporate legal departments, and government entities. Individual courses and subscriptions available.
By Rich Ehisen
Arkansas has embraced it. So has Illinois. West Virginia and Colorado have too. Maryland is strongly considering it. And now California has become the latest state led by a Democratic governor to sign off on the controversial oil and natural gas drilling practice known as hydraulic fracturing, or fracking. With that, all eyes are again focused on New York Gov. Andrew Cuomo (D), who is under intense pressure from both drilling opponents and supporters to act on his state's five-year-old fracking moratorium. Fracking involves injecting a mix of water, sand and chemicals thousands of feet deep into the ground to break up shale formations that trap natural gas and oil deposits. While very effective at getting to those deposits — and potentially creating billions of dollars in new tax revenues and millions of jobs — opponents contend the process comes with an environmental and social price tag even those haughty figures can't cover. This includes possible contamination of irreplaceable underground wells and aquifers that supply millions of people with drinking water. Above-ground rivers and streams might also be at risk. Fracking also uses excessive amounts of water on the front end and creates copious waste water on the back end. The U.S. Environmental Protection Agency, for instance, says the nation's 35,000-plus oil and natural gas fracking wells use as much as 140 billion gallons of water each year. That's about the same as the cities of Chicago and Houston combined. Although environmental groups like the Sierra Club and others normally in the Democratic fold opposed California's fracking bill (SB 4), Gov. Jerry Brown (D) signed it into law on Sept. 20. Brown said the bill created "strong environmental protections and transparency requirements" for drillers using the fracking process. Under the law, drillers must now obtain permits for new wells, provide neighbors with at least 30 days notice of their intent to use the fracking process, regularly test groundwater supplies in the area and conduct studies of fracking's impact on the environment. Those requirements constitute what supporters of the measure like Catherine Reheis-Boyd, president of the Western States Petroleum Association, called "the toughest regulations of hydraulic fracturing and other energy production technologies in the country." In a statement, Reheis-Boyd said that while SB 4 went "significantly farther" than the industry had hoped it would, it gave the state "an environmental platform on which California can look toward the opportunity to responsibly develop the enormous potential energy resource contained in the Monterey Shale formation." How enormous? According to a study conducted by the University of Southern California earlier this year, fully exploiting California's massive shale formation could produce as much as $25 billion in tax revenue and create up to 2.8 million jobs by 2020. Even so, SB 4 was only one of several bills introduced in California this session that would have either greatly restricted or banned fracking altogether. None of the others made it to Brown's desk. Only one state, Vermont, has banned fracking. That ban is symbolic as the Green Mountain State sits on no major deposits of natural gas or oil. California's new regulations are very similar to those signed into law by Illinois Gov. Pat Quinn (D) in June. In addition to enacting a permitting process and requiring water testing, SB 1715 also made the Prairie State the first to require drillers to disclose the chemicals they use throughout the fracking process. Many states have previously required some disclosure on either end, but not from start to finish. In all, more than 30 states now have some kind of fracking operations in place. But with so much on the line, bills continue to pour forth. According to State Net, 26 states introduced 176 bills this year. An astounding 49 of those came in New York, where all but one remain pending. Another 16 came in Pennsylvania, with 15 still alive. Pennsylvania Gov. Tom Corbett (R) signed the 16th, SB 259, a measure that allows drillers to use fracking "to pool and jointly develop contiguous leased acreage" even if the companies do not have specific permission to do so from landowners, in July. Whether New York will join California and Illinois in allowing fracking with enhanced regulation or continue the moratorium it started under then-Gov. David Paterson (D) in 2008 has been one of the most closely watched issues of the year. To date, Gov. Cuomo has offered precious little hint of what he might do, and he has repeatedly avoided making a decision in favor of doing more study about fracking's pros and cons. He insists his decision, whenever he makes it, will be driven by "facts and science" and not the highly charged emotions that surround the issue. Polls in New York have generally split fairly evenly, although a new Siena College survey released last week showed opponents with a growing edge. According to that study, 45 percent of residents now oppose fracking, with 37 percent in favor. The gap is larger upstate, where fracking would take place, with 52 percent against it and only 34 percent in favor. That marks a major shift just since August, when the variation was only 1 percent (42 in opposition to 41 percent opposed). That slim differential has been the norm, according to Siena pollster Steve Greenberg, who told the Binghamton Press and Sun-Bulletin the college has been surveying attitudes on fracking for two years. "What we have seen this month is the largest opposition to fracking we have seen so far," he said. Seth Gladstone, a spokesperson for the group Food and Water Watch, which opposes fracking, says that change is due to a "swelling grassroots movement" that is dedicated to making sure "not a single well" is drilled in New York. "We've done an outstanding job of educating and mobilizing folks from throughout the state on a very simple message: that no amount of regulation will make this process safe," he said in an interview with SNCJ. "This is an inherently dangerous and polluting process that cannot be regulated safely." The divisive nature of the issue is particularly sensitive for Cuomo, whom many observers expect to run for president in 2016. Endorsing new drilling and fracking would clearly bolster his bona fides with those who point to the process's economic potential; one new report from the Manhattan Institute for Policy Research says lifting the moratorium in the 28 counties where new fracking would occur would expand the incomes of residents in those communities by as much as 15 percent. But doing so would also undoubtedly push away fracking opponents. The issue is so touchy that in August Cuomo avoided appearing with President Obama, who supports greater use of fracking, during the president's tour of upstate New York to promote his education policies. Maryland Gov. Martin O'Malley (D) may soon encounter the same problem. Like New York, Maryland has been studying fracking for years. But while Cuomo's intentions remain anyone's guess, O'Malley appears close to endorsing increased fracking in the Old Line State. His administration recently began using parts of an as-yet unfinished "best management practices" report from the state's Fracking Safety Commission to begin drafting fracking regulations, a move that has drawn waves of protest from a coalition of anti-fracking groups. That could prove dicey for his future, as O'Malley is also thought to be weighing a campaign to seek the 2016 Democratic presidential nomination. The issue is already becoming a point of contention between candidates seeking to succeed him in Annapolis, with Republican candidates in favor of allowing the process and Democrats opposed. Cuomo, meanwhile, continues to play his cards close to the vest. But Gladstone says anything less than a total rejection of fracking is likely to be met with serious protests. "If he proceeds with even a single well, I think it would be a tough road for him to travel anywhere in this state given the level of constant protest and negative energy that would surround him every step of the way," he says. "That could be pretty hard on a man with higher political aspirations."
The above article is provided by the State Net Capitol Journal. State Net is the nation's leading source of state legislative and regulatory content for all states within the United States. State Net daily monitors every bill in all 50 states, the District of Columbia and the United States Congress - as well as every state agency regulation. Virtually all of the information about individual bills and their progress through legislatures is online within 24 hours of public availability.
If you are a lexis.com subscriber, you can access State Net Bill Tracking, State Net Full Text of Bills and State Net Regulatory Text . If you are interested in learning more about State Net, contact us.
To subscribe to the Capitol Journal and access archived issue go to the State Net Capitol Journal.
For more information about LexisNexis products and solutions, connect with us through our corporate site.