Illinois: A Collaborative Model for Fracking?

ar 7, 6:28 PM EST

Two articles summarizing t
he agreement between pro-fracking corporate interests and anti-fracking environmental groups in Illinois. Some observers say that the deal could lead to a national model. (See also the Page Compromise: Agreement on Fracking Standards: Can Fracking Be Made Safe?)

See connections to New York State in boldface italics (RL edits)

Associated Press

CHICAGO (AP) — After years of clashing over the drilling method known as hydraulic fracturing, or “fracking,” the oil industry and environmentalists have achieved something extraordinary in Illinois: They sat down together to draft regulations both sides could live with.

If approved by lawmakers, participants say, the rules would be the nation’s strictest. The Illinois model might also offer a template to other states seeking to carve out a middle ground between energy companies that would like free rein and environmental groups that want to ban the practice entirely.

“The fact that Illinois got there,” was significant, said Brian Petty, executive vice president of governmental and regulatory affairs at the International Association of Drilling Contractors. “Anytime you can bring the lion and lamb to the table, it’s a good thing. But it’s so highly politicized in lot of places” that compromise could be difficult.

The industry insists that [fracking] is safe and would create thousands of jobs – possibly 40,000 in the poorest area of Illinois, according to one study. Opponents say it causes water and air pollution and permanently depletes freshwater resources.

In New York, where a fracking moratorium is in effect until a health study is completed, one activist said Illinois environmentalists caved in when they should have pushed harder to block fracking.

“I was just appalled at this collaboration … to create these regulations based on the false premise that fracking is inevitable,” said Sandra Steingraber, an Illinois native and founder of New Yorkers Against Fracking, a group whose champions include actor Mark Ruffalo and singer Natalie Merchant. “It was not their job to help pave the way for fracking to move into Illinois. It was to protect the environment.”

But Michigan’s largest environmental coalition might be willing to take a cue from Illinois if lawmakers decide that fracking should be part of Michigan’s energy mix.

“We would love to see that kind of bipartisan cooperation,” said Hugh McDiarmid, spokesman for the Michigan Environmental Council. The Illinois bill “has a lot of good ideas and a lot of things … that mirror what we’re trying to achieve in Michigan” because stopping or banning fracking would be unrealistic.

That’s exactly what motivated some Illinois environmental groups to sit down with industry, lawmakers, regulators and the attorney general’s office.

In Illinois, it came down to “do we accept the invitation to go to the table or walk away and allow industry to write the rules?” said Allen Grosboll, co-legislative director at the Chicago-based Environmental Law and Policy Center. “For us to say we were not going to participate and drive the hardest deal we could to protect environment would have been totally irresponsible.”

The Natural Resources Defense Council supported a failed attempt at a fracking moratorium last year. So with lawmakers clearly ready to allow fracking in southern Illinois, the NRDC wanted to ensure there were significant safeguards, including making drillers liable for water pollution, requiring them to disclose the chemicals used and enabling residents to sue for damages.

“One of the positive things here has been the table to which a wide range of interests have come … to address the risks in an adult way,” said Henry Henderson, director of the NRDC’s Midwest office. “We have gotten over the frustrating chasm of `Are you for the environment or for the economy?’ That is an empty staring contest.”

Negotiations took place over four or five months, primarily at the Statehouse in meetings led by state Rep. John Bradley, a Democrat who lives in the area where fracking would occur, participants said.

Bradley whittled negotiators down to a core group – four from industry, four from environmental groups, plus representatives from the attorney general’s and governor’s offices, regulatory agencies and lawmakers, said Mark Denzler, vice president of the Illinois Manufacturers’ Association.

That group was pared even further for the toughest negotiations, which included discussions with outside technical experts on complicated issues, said Ann Alexander, an NRDC senior attorney.

“I won’t say there weren’t times that voices got raised a little bit, but … it’s a very good model of cooperation,” Alexander said. “It beats the (typical) model of having drafts furtively circulating … or emerging at the last minute when nobody has had a chance to read them.”

The deal was done by late February. It has yet to be considered by a legislative committee, which would have to endorse the proposal before sending it to the full House.

With oil companies leasing millions of acres around the country in a rush to extract oil and gas reserves, more states will face similar challenges.

Although Illinois’ proposed regulations might not work for every state, the unusual model of cooperation might, depending on the relationship between industry and environmentalists, Denzler said. Even now, though, Illinois’ agreement is “very precarious,” and his group has warned that any attempts to change it before it comes for a vote “could tip it one way or another.”

More than 170 bills were introduced in 29 states last year to regulate oil and gas drilling, according to the National Conference of State Legislatures. Only 14 became law. Many were simply to define whether local, state or federal government could regulate fracking. The bills don’t include regulations drafted by state regulatory agencies, rather than lawmakers.

California state Sen. Hannah-Beth Jackson said Illinois was able to negotiate many of the same protections she wants in her state, where energy companies are eying a shale formation near Santa Barbara that may have four times more oil than North Dakota. She said regulations proposed by the governor’s office were inadequate.

“It would be wonderful, frankly, if we could get everybody to sit down,” said Jackson, who introduced a bill to regulate fracking wastewater. “In California, there is the perception the companies are stonewalling and do not want to be subject to any oversight. I think if they are willing to sit down and talk, that would certainly be best way to do it.”

Environmentalists and industry have worked together to control pollution in the past, including on individual fracking issues in some states, though none was as comprehensive as the Illinois bill. But many environmental groups would rather forbid fracking completely.

“You can’t regulate fracking to be cleaner,” said Dan Jacobson, legislative director of Environment California. “We’re at such a tipping point with climate now.”

Even in Illinois, some environmental groups don’t support the bill and are mobilizing to seek an outright ban. On Saturday, fracking opponents interrupted Bradley while he spoke at a conference in southern Illinois. They plan another protest Monday, at a conference of county officials.

Bringing both sides together “is something that should absolutely happen,” said Steve Everly, spokesman for Energy in Depth, the educational arm of the Independent Petroleum Association of America. But he said environmental groups that participate “have to continue to support” the regulations afterward.

“If you put together the right formula, you can move forward,” he said.

It is possible that there will be more collaboration to establish better safeguards for air, water and climate, said Mike Brune, executive director of the Sierra Club. “But as we learn more about the true impacts of gas, and more and more communities are questioning whether we need it at all … we’ll definitely see more conflicts.”


In Illinois, environmentalists and industry compromise on fracking bill

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Illinois Rep. John Bradley, D-Marion, speaks to reporters during a news conference at the Illinois State Capitol Thursday to announce proposed new fracking regulations. (Associated Press / Seth Perlman)

Illinois Rep. John Bradley, D-Marion, speaks to reporters during a news conference at the Illinois State Capitol Thursday to announce proposed new fracking regulations. (Associated Press / Seth Perlman)

Environmental leaders are calling a bill introduced in the Illinois legislature potentially the strongest measure nationwide  for regulating hydraulic fracturing, also commonly known as fracking.

The legislation — called the “Bradley bill” after its sponsor, Rep. John Bradley — included nearly all the provisions that leaders of major environmental groups had expected after months of discussions with industry, legislators and the state’s attorney general.

But there’s a caveat when saying (a fracking bill) is the ‘strongest in the nation,’” said Jennifer Cassel, a staff attorney with the Environmental Law and Policy Center (ELPC). “That’s not saying all that much – we don’t think the floor is high enough. It doesn’t mean we’re doing the most protective standards that could possibly be done.”

A representative of the oil and gas industry also described the bill as “not perfect by any means.”

Kyna Legner, writing for Energy in Depth, a publication of the Independent Petroleum Association of America, said the bill “includes significant new requirements for hydraulic fracturing that could serve as a barrier to future operations.” The legislation does, however, avoid a moratorium, which she said “would be far more destructive.”

Meanwhile, opponents of fracking – including many area residents who say they were not included in the discussions – oppose a regulatory bill and continue to demand a moratorium or ban.

Also, as Legner noted, the bill is “a long way from becoming law, and much can change as the legislative process unfolds.”

Water protections

The Illinois bill, HB2615,  mandates baseline water testing before fracking starts, and water monitoring thereafter. If contamination is found, it is presumed that the industry is liable.

“It’s the obligation of the industry to show that they didn’t cause that contamination and not the reverse,” said Cassel. “Water monitoring obviously plays very much into that presumption. We’re finding out what’s in the water sources before we start fracking. These are pieces of information that, shockingly, are absent in other states.”

The bill requires that contaminated “flowback” and “produced water” be stored in closed containers or, in emergency situations for up to seven days, in lined pits. The contaminated water is ultimately disposed of in underground injection wells; the bill requires that such wells meet certain standards and be tested every five years.

The bill also bans the use of diesel fuel as a fracking agent.

“Diesel has no place in fracking, it contains carcinogenic compounds and it can make its way into the groundwater,” said Natural Resources Defense Council (NRDC) senior attorney Ann Alexander.

Companies would be required to disclose to state officials the concentrations and names of chemicals they will use before they begin fracking; however companies can claim trade-secret privileges to prevent that information from being made public.

A controversial Illinois bill introduced last year  would have severely limited the number of people with official standing to challenge the invoking of trade secrets. Under the current proposal, anyone can challenge companies to disclose chemicals.

Cassel also highlighted a requirement that has gotten little attention: a mandate that companies plug nearby abandoned wells to avoid fracking-contaminated water flowing up through them, as has happened in other locations.

Other provisions

The Illinois bill goes further than federal clean air laws in limiting the release and flaring of natural gas during operations, important for reducing carbon dioxide and other emissions.

Federal law limits gas emissions during the phase where the shale is actually fractured, and a “whoosh” of gas is emitted from the ground, in Alexander’s words. The Illinois bill extends gas emissions limits to the production phase of fracking, where lower amounts of gas can escape along with the gas or oil actually being collected.

The state bill also requires that if gas is flared, the company must prove it is burning off all the volatile organic compounds (VOCs) that otherwise could pose a public health risk. Alexander said federal law has no such requirements.

Also, while federal law only applies to fracking for gas, the Illinois bill also applies to fracking for oil, Alexander said. It is unclear so far what mix of oil and gas might be obtained from Illinois’s New Albany Shale, where companies have leased more than half a million acres.

The bill also includes insurance and bonding requirements that Alexander described as “adequate.” Companies must put up $50,000 bonds for each permit or a $500,000 blanket bond to cover multiple permits. The bonds are meant to cover problems until the well is officially plugged and abandoned.

Cassel said the bill’s public participation and transparency requirements are strong. Permits must include specific information on where the company will get the water it uses to frack, and the permits must specify measures taken to reduce water usage.

Within five days of receiving a permit application, the state Department of Natural Resources must post on its website the application and notice of a 30-day public comment period. The department also must mail notices to all landowners within 1,500 feet of the proposed well site.

The bill includes fairly specific best practice requirements for well design, construction and monitoring, including procedures and standards mandating how the cement in the well is pumped in and how much pressure it must be able to withstand. And the bill requires any surrounding fresh water and “flow zones” be completely isolated from the well.

Opposition from local residents

The bill includes the vague mandate that fracking “shall not pose a significant risk to public health, life, property, aquatic life or wildlife.”

But many Illinois residents who live in the areas where fracking is proposed say they don’t believe regulations can prevent such harm. Fracking opponent Richard Fedder said in an email to Midwest Energy News that the proposed bill may be “better than any other state at holding the industry accountable AFTER our water is poisoned.”

“But environmentalists, and just plain ordinary people, would prefer that their water not be poisoned in the first place,” he said. “Or even simpler — We don’t want our land to dry up because this giant industry sucks up all our water.”

Residents and environmental leaders involved in the regulatory negotiations note that the bill does not address problems under the existing state Oil and Gas Act — for example, the “forced pooling” policy which means individual residents can be forced to lease their mineral rights if those rights are part of a “pool” of oil or gas co-owned by others.

The bill also does not allow towns or other local governing bodies to place their own restrictions or bans on fracking. Alexander said such local control was discussed early in the negotiations, but the concept was tabled.

The group Southern Illinoisans Against Fracturing our Environment (SAFE)   and other anti-fracking groups support a bill introduced earlier this month by state senator Mattie Hunter (D-Chicago) that would put a moratorium on fracking. There is an active grassroots anti-fracking movement in Chicago as well as downstate.

Meanwhile, Alexander praised House Majority Leader Barbara Flynn Currie (D-Chicago) and Representative Ann Williams (D-Chicago) for environmental protections that made it into the regulatory bill.

People involved in the negotiations say the regulatory bill has a good chance to pass in its current form, but industry or other interests may push for changes.

“At this point we’re not really willing to tolerate any weakening of this bill,” said Alexander. “This is hard-fought, we have these terms that are not perfect but they’re what we’ve agreed to, and we won’t stand for it being chipped away at. We’re hoping everyone stays on the same page.”