Attorneys General Warn EPA over ‘Sue and Settle’ Fracking Regulations

Attorneys General Warn EPA over ‘Sue and Settle’ Fracking Regulations
June 11, 2013

Bonner R. Cohen

Bonner R. Cohen is a senior fellow with the National Center for Public Policy Research, a position... (read full bio)

Concerned that a threat of litigation by six northeastern states could give the Environmental Protection Agency cover to regulate hydraulic fracturing at the federal level, attorneys general from 13 energy-producing states have sent a letter to the agency upholding state primacy in overseeing fracking.

Non-Shale States’ Threats
The letter, produced at the urging of Oklahoma Attorney General Scott Pruitt, is further evidence of a growing rift between states with rich shale deposits of oil and natural gas, on the one hand, and the Obama administration and predominantly northeastern states, on the other. Pruitt was joined in the letter by his counterparts from Texas, Alabama, Arizona, Montana, Kansas, Nebraska, North Dakota, South Dakota, Ohio, Wyoming, and West Virginia. 

The letter noted New York, Massachusetts, Delaware, Vermont, and Rhode Island have threatened to sue EPA to halt fracking. Of the states threatening to sue, only New York, whose Southern Tier includes the energy-rich Marcellus Shale, has substantial fossil-fuel deposits. But a moratorium on fracking in New York has kept the Empire State from participating in the energy boom that’s boosting economic fortunes elsewhere in the Marcellus Shale region.

‘Friendly Lawsuits’ Strategy
A regional agreement between the northeastern states and EPA could provide a precedent for a lawsuit that could lead to the agency’s expanding its regulatory power over fracking nationwide.

“EPA has appropriately declined to regulate methane emissions from new and existing oil and gas facilities under the Clean Air Act,” Pruitt wrote. “It is abundantly clear that EPA should not succumb to the pressure intended by the northeastern states.” 

Pruitt in a separate statement warned of “friendly lawsuits,” also known as “sue and settle” agreements. 

“This apparent practice by EPA to engage in friendly lawsuits in order to circumvent the law is disturbing,” he said. “The outcomes of these settlements have a real effect on families, businesses, communities, and state economies.”

In typical sue-and-settle cases, environmental groups or state governments file lawsuits to force EPA or another federal regulatory agency to issue new regulations. If the agency is fundamentally in agreement with the suit filed against it, it often chooses not to defend itself. The resulting consent decree is negotiated without the participation of affected parties, such as local residents, businesses, landowners, or governments. Courts frequently rubber-stamp the agreement, which then carries the force of law.

EPA Studying Fracking
It remains to be seen whether EPA will team up with northeastern states to craft a consent agreement that ultimately leads to federal regulation of fracking. The agency has so far declined to do so and deferred to the states to oversee fracking. But EPA is studying fracking effects on water and, given the Obama administration’s consistent hostility to fossil fuel production, political leaders in shale states are clearly worried. 

The geology and hydrology of shale formations vary widely not only from state to state but also within states. That complicates efforts to impose one-size-fits-all federal fracking regulations on the states. Energy producers and state officials also hope to avoid the inevitable red tape resulting from EPA regulatory actions.

“The states are in the best position to regulate hydraulic fracturing, as oil and gas resources are highly variable geographically,” said Todd Wynn, director of energy, environment, and agriculture issues at the American Legislative Exchange Council. 

“Unfortunately, sue-and-settlement agreements allow EPA to replace input from the states with that from professional environmental activists. During the last three presidential terms before Obama, sue-and-settle activity resulted in a cumulative total of 30 agreements. During President Obama’s first term, however, there were 48 such agreements, representing a 380 percent increase on a per-term basis,” Wynn observed.

The agreements punish states for developing resources, Wynn says. “This regulatory overreach will hurt state economies while creating little or no environmental benefits,” he explained.

“Also, the states with shale oil and shale gas reserves are the ones who will experience any positive or negative impacts, and they are largely in favor of fracking,” Wynn explained. “These state officials study the impacts, issue appropriate regulations, and oversee energy production that tremendously benefits residents in their respective states.”

Bonner R. Cohen, Ph. D. (bcohen@nationalcenter.org), is a senior fellow at the National Center for Public Policy Research.

Bonner R. Cohen

Bonner R. Cohen is a senior fellow with the National Center for Public Policy Research, a position... (read full bio)