by Derf Johnson
The science is in. The practice of hydraulic fracturing, or “fracking,” can and does lead to contamination of ground and surface water. This fact has been shown in several studies that have conclusively demonstrated a link between fracking activities and groundwater pollution. These findings are not all that shocking, as no technology is 100% safe, regardless of the misinformation that the oil and gas industry has been spewing for the past decade. There are numerous ways that the chemicals used in fracking can pollute water, including during the drilling process, transportation to and from the drill site, while being stored after drilling, and when well blow-outs occur.
Because of an almost complete lack of federal regulations governing fracking, individual states have developed their own laws and rules with varying degrees of effectiveness. In Montana, the sparse laws and regulations governing the practice of fracking are administered by the Montana Board of Oil and Gas Conservation (Board). Unfortunately, there are many reasons why the Board has failed to fully protect the public interest.
First, when a government agency that is created to act in the public interest becomes dominated and controlled by the industry it purportedly regulates, it is a failure of the public trust and the rule of law. Political scientists have named this concept “agency capture.” Ultimately, it leads to actions and decisions on the part of the agency that place industry objectives above public safety and welfare. Agency capture has a deep and troubling history in Montana, but also a contemporary presence, none being worse than the Board of Oil and Gas Conservation – the poster child of agency capture in Montana.
In 2011, the Montana Legislature considered a series of bills that would have provided for additional public disclosure of fracking fluid chemicals. Disclosure is a key element in protecting the public from toxic (and often carcinogenic) chemicals used in fracking that may contaminate water supplies. However, at the request of the oil and gas industry lobbyists, and tacitly encouraged by the administrator of the Board, the legislation was rejected in committee because of the drastically overstated implications it was said to have for the industry. The following Summer, however, the Board began a rulemaking process that would ultimately result in the adoption of a regulation on disclosure of chemicals. But it’s clear that the Board was really doing the bidding of the industry. What it developed was a regulation that required next to nothing in the way of actual disclosure.
The most conspicuous problem with the Board’s rule is a trade-secret loophole that an oil rig could fit through. Specifically, if a company deems the chemical constituents a “trade-secret,” it is not required to disclose the specific constituents. Even more brazen is that there is no independent review of the supposed “trade secret” to assure that it is a legitimate claim. The lack of such review effectively nullifies the original purpose of the rule. Further, the rule doesn’t require that operators disclose chemicals before fracking occurs. Having advance notice is critical for adjacent landowners to conduct baseline water testing in order to be able to accurately monitor changes in their water quality.