In 2015, EPA released a draft study finding that hydraulic fracturing is not having “widespread, systemic impacts on drinking water.” This conclusion – reached in the apparent absence of widespread, systemic impacts – seemed eminently sound, if not obvious.
But an uproar ensued. Two of the Obama Administration’s staunchest allies – the green lobby and trial lawyers – opposed the draft report’s conclusion. A finding of “no widespread, systemic impacts” does not exactly help the case for renewable energy or lay the groundwork for large jury verdicts in water contamination cases.
So, last week, the EPA’s conclusion was changed in the waning days of the Administration. Gone is the finding that there are no “widespread, systemic impacts on drinking water.” In its place, is a statement that fracking activities “can impact drinking water under some circumstances.” View link for comparison. While EPA concedes that the number of such circumstances is very small (most of the examples were supplied by trial attorneys), it nevertheless claims that data gaps now prevent it from concluding that there are no widespread, systemic impacts.
The anti-fracking movement points to EPA’s final report as “confirming that the controversial drilling process does impact drinking water.” Link. But the science has not changed. EPA analyzed the impacts of fracking for 5 years (at a cost of $30 million) and reviewed more than 1,000 studies. There is no new evidence of widespread, systemic impacts in the final report. There is merely evidence of a successful lobbying effort that diminishes the EPA. As the Wall Street Journal recently opined: “bending to public comment from litigants and actor Mark Rufallo does not instill confidence in the agency’s integrity.” View link.
This article was authored by M. Shane Harvey, Jackson Kelly, PLLC.