Fracking Rules to Disappoint Environmentalists

Fracking opponents hope the state of Illinois will adopt rules to implement fracking so  onerous that oil companies will not proceed to drill. The opponents will likely be disappointed. Illinois was a major oil producer up to World War II, then the oil fields of southeastern  

Illinois began to play out. Now, however, the New Albany Shale Formation, which surrounded  the Illinois oil, is thought to hold large amounts of oil and gas that can be extracted by hydraulic  fracturing, or fracking. 

This technology uses sand, chemicals and water, or nitrogen, to open shale and create  escape routes for oil and gas trapped inside. 

For more than a year, the oil industry and environmental groups arm wrestled over the  development of a bill to authorize fracking. 

The Environmental Law and Policy Center, the Natural Resources Defense Counsel and  other such negotiators undoubtedly felt it better to be at the table rather than see a bill drafted  without their input. 

The resulting 123-page bill was negotiated in minute detail and all sides seemed satisfied  with what legislators hailed as the most stringent legislation in the nation. But no legislation in Illinois can be implemented without rules. 

An obscure yet powerful committee of the Illinois legislature called the Joint Committee  on Administrative Rules (better known as JCAR) will determine by November 15 the final shape  of rules for fracking.

Legislation is often written in general terms, with words like “reasonable” and  “appropriate.” Rules provide the critical detail that defines reasonable as “a setback 1,000 feet from another’s property line.” Or should it be 5,000 feet? What is reasonable? This is why the  rules are so important to affected groups. 

The Illinois Department of Natural Resources (IDNR) has been responsible for drafting  the rules for the fracking bill, as it will administer the law. 

Rules were drafted, and the public had 45 days to comment. More than 30,000 comments  came in from around the country from opponents of fracking, apparently a record. Then in early September, IDNR came out with a second, significantly revised set of rules,  in 150 pages plus 361 pages of commentary. 

Environmental groups were generally pleased that IDNR had been responsive to its  concerns. Writing in her blog for the Natural Resources Defense Council, Ann Alexander called  them “thorough, thoughtful and exhaustively researched.”  

But industry went ballistic, claiming the revised rules in many places “went way beyond” the governing statute. 

As one industry representative declared: “The legislature passed a bill that allowed  fracking, and now we have draft rules that don’t allow fracking.” 

Industry has at least 67 objections to the rules. 

Brad Richards, executive director of the Illinois Oil and Gas Association, says the rules  add eight new criteria to the permit application that are not in the statute. 

Mark Denzler of the Illinois Manufacturing Association notes that the statute says a  permit “shall” be issued if all requirements are met, but the revised rules add that such permitting  is up to the discretion of IDNR.

Industry also contends that several items that failed to make it into the negotiated bill are  now in the rules. 

At the September meeting of JCAR, Rep. David Leitch (R-Peoria) sponsored a motion  adopted unanimously by the group’s 12 members, reinforcing to IDNR that the overriding  responsibility of JCAR is to see that rules comport with the statute. 

“This bill was negotiated with all at the table over more than a year,” says Leitch. “Every  line in the bill is there for a reason. It doesn’t matter whether we are pro or anti-fracking. It is not  our job to decide the issue.” 

The draft rules are now with JCAR staff, which has a staff of 14 generalists. They will  talk with IDNR, technical experts from the Illinois Geological Survey, and industry and  environmental representatives. 

I am not enthusiastic about fracking, yet the legislature has spoken by enacting a detailed  bill on a bipartisan vote. I expect JCAR will roll back any rules that go beyond the statute and its  intent, which will disappoint environmentalists, and that fracking will begin in Illinois in a  couple of years.