white flagReturning to the topic of hydraulic fracturing (see Mark Chenoweth’s May 4 post below), we note the lawsuit that the Natural Resources Defense Council (NRDC) and other environmental activists filed on May 4 against EPA, alleging that the agency simply is not doing enough to regulate fracking. Just two days earlier, the Colorado Supreme Court held that state law preempts efforts by local governments to regulate fracking. Perhaps that outcome dictated the timing of NRDC’s action. Such local ordinances are part of NRDC’s three-pronged approach to attacking this oil and natural-gas extraction method. The coalition of plaintiffs includes Earthworks, which intervened to defend the local ordinance in one of the Colorado cases.

The lawsuit recycles the now thoroughly discredited claim that fracking poses a toxic danger to drinking water. Fracking opponents have long focused on the fracking process, when the mixture of water and proppant (commonly sand), and a small amount of chemicals, is injected underground. Fracturing’s purported impact on potable water has figured prominently in activists’ demonization campaigns.  Yet the EPA’s own study found no evidence to suggest that fracking has “led to widespread, systemic impacts on drinking water resources.”

And that conclusion was just confirmed by a three-year-long investigation of fracking’s effects on drinking water in the Marcellus Shale by the University of Cincinnati. If you think that these research results would be received as good news by the environmentalist community, you’d be mistaken. When asked by an audience member at a February 4, 2016 meeting of the Carroll Concerned Citizens where she presented the study’s findings whether the university was going to publicize the research group’s findings, Dr. Amy Townsend-Small, the lead researcher for the study, reportedly replied:

I’m really sad to say this but some of our funders, the groups that had given us funding in the past, were a little disappointed in our results. They feel that fracking is scary and so they were hoping our data could point to a reason to ban it.

As Newsweek recently asked, “Why are they hiding the good news about fracking?”

In other words, the reason why EPA has not done more to inhibit fracking via notice-and-comment rulemaking is that the science—even the agency’s own science—does not support stricter federal regulation. Thus, no front-door regulatory effort would survive a legal challenge.

Given its checkered history of engaging in non-adversarial sue-and-settle sweetheart deals (see these WLF publications for past examples), we have no reason to believe that this EPA will put up much of a fight. As other commentators have written, the litigants to this latest lawsuit and EPA seem much too close for comfort. Perhaps the agency will push back a bit, just to create the appearance of opposition, but then surrender quietly near year’s end. You are likely familiar with the concept of “midnight regulations.” The friendly resolution of NRDC v. EPA may be one of many “midnight settlements” to come.

Anytime an agency like EPA connives to capitulate to a lawsuit in order to end-run the cumbersome rulemaking process, it violates the rule of law. But if it does so in the face of uncontroverted evidence opposing the plaintiffs’ claims it would also sully the agency’s reputation beyond repair and surrender any claim to moral legitimacy.

Also published by Forbes.com on WLF’s contributor group page.