On the one-year anniversary of becoming California’s attorney general, Xavier Becerra (D) did something he had done 25 times in the previous year — he filed an environmental lawsuit against the Trump administration.
The challenge was to the Trump administration’s recent rollback of federal regulations on fracking — a method of oil and gas drilling that requires companies to inject large volumes of chemical and sand-laced water into rock formations below ground in order to expose oil and gas trapped within. The regulations, finalized under the Obama administration, would have required companies that frack on federal lands to, among other things, disclose the chemicals used in their operations.
But the rule was immediately challenged by the oil and gas industry, which called it “politically motivated” and “duplicative.” In his March executive order on energy independence, President Donald Trump ordered Interior Secretary Ryan Zinke to review and repeal the fracking regulations. That process was finalized in late 2017.
But California — as well as a coalition of six environmental groups, which separately filed a lawsuit challenging the repeal on Wednesday — argue that the Bureau of Land Management and Zinke violated federal law by failing to provide sufficient justification for repealing the rule.
“We seek an order invalidating Bureau of Land Management’s unlawful repeal, which would in turn reinstate the fracking rule,” Becerra said during a press conference on Wednesday. “We take this action…to insist that the rule of law be followed by everyone, including the occupant of the White House.”
There are a few things in the Trump administration’s repeal of the fracking rule that groups will likely seize on. To start, the Bureau of Land Management’s (BLM) own assessment of the rule found that it would likely have an incredibly small impact on fracking companies’ bottom line.
“While there could be a small positive impact on the development of Federal and Indian oil and gas leases, the proposed rule is unlikely to substantially alter the investment decisions of firms and is unlikely to affect the supply, distribution, or use of energy,” the BLM concluded in July.
In repealing the rule, however, the BLM argued that leaving the regulations in place would “[impose] burdensome reporting requirements and other unjustified costs on the oil and gas industry.”
Groups challenging the repeal say that the BLM failed to provide any evidence that would support their assumption that the rule would impose overly burdensome costs on the industry.
“We’re not aware of any new data they found to show that,” Nathan Matthews, a staff attorney with Sierra Club, told ThinkProgress. “It’s another assertion that there simply isn’t evidence to back up — in fact, there is evidence showing it is wrong.”
Both environmental groups and California hope that a judge will ultimately invalidate the administration’s repeal, finally allowing federal regulations on fracking on federal and tribal lands to go into place (the original rules finalized by the Obama administration were put on hold by litigation). But while the cases work their way through the judicial system, Matthews cautions that communities living near fracking sites on federal or tribal lands will still be at risk from operations that are regulated under a framework that hasn’t been updated since the 1980s.
“The Trump administration’s decision to repeal the rule is depriving communities that live near federal lands of these protections, without any major benefit,” Matthews said. “The administration’s refusal to even let these rules take effect is unfortunately not surprising, but represents this administration’s general approach to their obligation to protect the environment and our public lands.”
The regulation, for instance, would have prohibited drilling operations from storing fracking wastewater — the combination of chemical-laced fluid and sand that returns to the surface after fracking — in pits, requiring instead that the waste be stored in tanks. Environmental groups have long been concerned that, when stored in pits, fracking wastewater could contaminate ground or surface water, either through spills or by leeching into the soil. In 2012, for instance, a wastewater holding pond in Pennsylvania breached while workers were transferring the water from one storage container to another, releasing 63,000 gallons of fluid into a nearby creek. And in Wyoming, scientists found elevated levels of chemicals in groundwater near unlined wastewater pits.
Companies also won’t be required to disclose the chemicals used in their fracking operations, unless state regulations explicitly require it. Currently, 28 states require operators to disclose at least some of the chemicals used, though only eight states require operators to disclose additives as well as chemical products.
Matthews points to both the storage tank requirement, and chemical disclosure requirements, as places where the federal regulation went further than state regulation. Despite criticism from industry that the rules were “duplicative,” Matthews said, the federal regulation helped fill gaps that left communities and the environmental vulnerable.
“In terms of practical consequences, repealing this rule means that people who live near federal lands are going to be exposed to risks that their states are not adequately protecting them from,” Matthews said. “At the end of the day, this is a relaxation of protections.”
