Soon to be EPA-regulated?

Somewhere on the soon-to-be-freezing land of North Dakota, workers whose jobs depend on the continued viability of hydraulic fracturing (“fracking”) are left to guess what the Environmental Protection Agency (EPA) has in store for them next month. A draft guidance is expected to be released in January defining, among other things, what diesel fuel is, and the length, process, and types of permits that businesses must seek in order to engage in hydraulic fracturing.

The only wrinkle is that some are speculating that the EPA will institute a moratorium on the practice as soon as January. While the EPA strenuously denies that they will, there is a significant chance that the EPA’s definition of diesel fuel will be broad enough to encompass nearly any type of oil. Oil is used as a binding agent for the sand and water in fracking solutions, 99% of which is sand and water. Diesel fuel is used when it is cold due to its chemical properties; many companies have eliminated diesel from the process and use vegetable or mineral oil instead. But according to the head of the North Dakota State Industrial Committee – which has set aside $1 million for legal challenges to the EPA – a broad definition of diesel could encompass such fuels.

While the EPA says that the guidance will not force states to change how fracking is done, it will provide strong reason for companies to comply with suggestions given that the EPA could issue new rules in accordance with the guidance. After all, if you are concerned that the process by which you are fracking could fail to comply with the Safe Drinking Water Act, then you have reason to pause at the guidance’s definition of diesel fuel. Guidances have the practical effect of regulating without saying so. “Should,” in the regulatory state’s parlance, often amounts to “must.”

All of this stems from a letter sent by some federal representatives to the EPA urging them to adopt a broad definition of diesel in their forthcoming guidance. While keeping drinking water clean is certainly a laudable goal, EPA involvement in the exact process of how fracking occurs is ripe for overregulation and disastrous economic effects on communities that depend on companies engaging in hydraulic fracturing. Hopefully, the EPA’s guidance will contain a narrow definition of diesel and will bring the needed clarity for business interests in states like North Dakota.

Then again, that money set aside by the State Industrial Committee is probably money that will have to be spent, and spent well fighting the EPA’s soon-to-be burdensome regulations. Just another day at your friendly federal government.