The Halliburton Loophole

Content taken from Burning Question: What Would Life Be Like Without the Halliburton Loophole:

“The loop­hole refers to the Energy Pol­icy Act of 2005, which exempts the hydraulic frac­tur­ing process, also known as frack­ing, from fed­eral over­sight under the Safe Drink­ing Water Act of 1974. Then Vice Pres­i­dent Dick Cheney did have a hand in get­ting the exemp­tion put into the Energy Pol­icy Act. He chaired Pres­i­dent Bush’s Energy Pol­icy Task Force, which rec­om­mended frack­ing be excluded. And Cheney is a for­mer Hal­libur­ton exec­u­tive. Hal­libur­ton, by the way, began frack­ing in the 1940’s to extract for oil. But the use of frack­ing, com­bined with hor­i­zon­tal drilling, has only recently been used to mine shale gas.The loop­hole does have an excep­tion.  If drilling com­pa­nies use diesel fuel to frack a well, they do have to get a fed­eral permit.

Also amended in the 2005 Energy Pol­icy Act was the Clean Water Act. Con­gress enacted the CWA back in 1972 as a way to reg­u­late dis­charges into the country’s rivers and streams. The CWA was amended in 1987 to include storm water run-off. But oil and gas pro­duc­tion are exempted from those reg­u­la­tions. And in the 2005 Energy Pol­icy Act, those exemp­tions included oil and gas con­struc­tion. Envi­ron­men­tal­ists worry about run-off from well pads, pipelines and con­struc­tion sites.

With­out fed­eral over­sight, it’s up to the states to reg­u­late gas drilling.”

“And it’s not just the Clean Water Act, and the Safe Drink­ing Water Act that exempt the oil and gas indus­try. The Clean Air Act, passed by Con­gress in 1970, exempts oil and gas wells from aggre­ga­tion. That means, each well site is con­sid­ered an indi­vid­ual source of pol­lu­tants, and does not take into account all of the well sites in a spe­cific area.

When it comes to the han­dling of waste water, or frack water, that too is exempt from a fed­eral statute called the Resource Con­ser­va­tion and Recov­ery Act. The RCRA tracks indus­trial wastes from “cra­dle to grave." But when it comes to the oil and gas indus­try, as long as the waste water is on the drill site, or being trans­ported, it is not con­sid­ered haz­ardous. This also applies to drilling mud. That’s why trucks car­ry­ing waste water, which con­tains high lev­els of salts, toxic chem­i­cals, as well as radioac­tive mate­r­ial, may be labeled “resid­ual waste."

The National Envi­ron­men­tal Pol­icy Act, or NEPA, requires fed­eral agen­cies to do envi­ron­men­tal impact state­ments if major indus­trial projects would impact the envi­ron­ment. But the Energy Pol­icy Act of 2005 rel­e­gated oil and gas oper­a­tions to a less strin­gent process.

Finally, the Toxic Release Inven­tory requires indus­tries to report toxic chem­i­cals to the EPA. But the oil and gas indus­try are exempt from this reporting.”


Read the Complete Energy Policy Act of 2005
State of the Law: Federal, State and Local Regulation of Hydrofracturing, (Kathleen Dachille, JD)