No Energy Behind Empowering States

12 Oct

Legislation was introduced in the U.S. Senate last month entitled, “Empower States Act of 2012,” (S.3573) calling for the recognition of the states’ primacy in certain matters pertaining the management of hydraulic fracturing operations.

Introduced by Senator John Hoeven, R-N.D, and co-sponsored by Senator Lisa Murkowski, R-AK, the bill is intended to ensure a states-first approach to managing hydraulic fracturing operations and promote fair and effective regulation.

The bill was read and referred to the Committee on Environment and Public Works. In light of a Democratic Senate, it has no chance of becoming law.

The preamble recognizes that states, such as North Dakota that regulates oil and gas production, have comprehensive laws and regulations ensuring safe operations and protecting drinking water. Furthermore, the EPA already gives states that maintain regulations protecting human health and the environment the right to control hydraulic fracturing. So, why this bill?

Proponents of the bill, including the American Petroleum Institute, contend that it merely restates the authority of the states to regulate this drilling activity and provides “certain, effective, and fair” rules for hydraulic fracturing.

Those who oppose it claim the bill is intended to fence the EPA out of the oil patch by erecting barriers such as the submittal of a “statement of energy and economic impact” before enacting new regulations and directing that judicial review be done “de novo” with preference to district courts within the state or the District of Columbia.

These are the classic arguments in the debate of federalism. On the one hand, those closer to an activity are best able to regulate it. Alternatively, activities affecting the greater public interest are best overseen at the federal level.

I’m ambivalent regarding this legislation.  Clearly, I support increased domestic energy production undertaken in a responsible manner. Yet, I believe that the nature of energy production, along with similar activities such as infrastructure development, is characterized by broadly dispersed public benefits and localized impacts.

States with a history of supporting extractive energy production have developed a solid track record of regulation. There is little outright reason to fear that they will neglect or abuse laws protecting our health, safety, and the environment. Yet, energy is also a national issue affecting our economy and security. The Balkanization of energy matters, including this legislation, is not in our best interest.

Unfortunately, a solution lies somewhere in the middle. Currently, our greatest national deficiency is that we have no guiding energy policy. Worse yet, we don’t have a bipartisan political environment to effect one. As a result, Congress spends time and resources drafting legislation having virtually no chance of passage and neither adding to our energy supplies, nor protecting our health and environment. We must do better.

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