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37 Whittier L. Rev. 87 Whittier Law Review Fall, 2015 Note and Comment FRACKER IN THE RYE: THE NECESSITY OF FEDERAL FRACKING WASTE REGULATION AND A FRACKING WASTE REGULATORY COMMISSION Curtis L. Morrison a1 Copyright © 2015 by Whittier Law Review; Curtis L. Morrison I. INTRODUCTION There is a fracker in the rye, again. More than a century ago, the California Attorney General took the Gold Run Ditch & Mining Company to court for disposing waste from hydraulic mining operations into the non-navigable American River, a tributary of the Sacramento River. 1 At trial, the people's first witness, I.N. Hoag, the Secretary of the State Agricultural Society, explained the waste had not only impeded river traffic along the Sacramento, but also resurfaced as sediment during flooding damaging farmland. 2 Hoag testified, “[f]rom the American river, down as far as the sediment goes, there are, in twenty miles, from fifteen to twenty farms very materially injured by the sediment deposits, and some of them ruined.” 3 The California Supreme Court recognized that the disposal of hydraulic mining debris constituted a public nuisance because it “not only impair[ed] the navigation of a river, but at the same time affect[ed] the rights of an entire community or neighborhood, or any considerable number of persons, to the free use and enjoyment of their property.” 4 The people, in the 19 th century, won a perpetual injunction against the discharge of hydraulic waste debris into streams. 5 Today's hydraulic waste disposal, however, is a byproduct of fracking. One scholar has defined fracking simply as “fluids are pumped at high pressure underground to force out oil or natural gas” *88 from “stubborn underground formations.” 6 The wastewater from fracking is called “produced water.” 7 Since it can be composed of the chemicals contained in the injected fluids, as well as metals, dissolved solids, salts, and “naturally occurring radioactive material” dredged up from beneath the earth, it is also called fracking waste. 8 Known potential harms from fracking include the initial clearing of land, 9 earthquakes, 10 respiratory issues in humans living near drilling sites, 11 impacts on climate change implied by continued reliance on fossil fuels, 12 and the pollution of aquifers used for drinking water in the proximity of fracking sites. 13 Generally buried by those legitimate concerns, is consideration of risks posed by offsite fracking wastewater disposal. Unfortunately, for those who seek to ban or regulate fracking, today's fracking waste has not been found to materially impede navigation like Gold Run Ditch & Mining Company's. If the only harm from today's fracking waste were causing problems for boats, this article would not have been written. Since federal agencies have failed to effectively regulate the clandestine fracking wastewater disposal *89 industry at all, most of the regulatory efforts have fallen to the state and local level. 14 Even where that regulation exists, it has not always proven comprehensive or effective.

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This article explores many reasons why state and local regulatory solutions could never provide adequate relief. This article also exposes the alarmingly unregulated fracking disposal industry, and in absence of a preferred federal ban on fracking, offers a bold yet warranted regulatory solution. Because the fracking disposal industry has procured exclusions from existing regulatory acts, the agencies charged with enforcing it simply do not, and state and local solutions have constitutional limitations, this article proposes strictly constructed federal regulation for fracking waste, and a federal commission tasked and chartered with regulating the fracking wastewater disposal industry to insure that fracking waste disposal is only done responsibly. Part II of this article will survey the shockingly scarce regulatory regime in place today regulating fracking waste disposal, highlighting its giant loopholes and shortcomings. Also, the potential hazards to human health and the environment will be examined through examples of wastewater disposal in places you might not expect, although a thorough survey of the potential harms is beyond this article's scope. Part III will propose comprehensive federal regulation of fracking wastewater disposal and the fracking waste management industry with the creation of a new federal commission to enforce it. Lastly, Part IV will conclude with a call for congressional and executive actions to not only create federal regulation of fracking waste disposal, but the regulatory commission proposed herein to enforce it effectively.

II. HISTORICAL PERSPECTIVE A. FRACKING WASTE DISPOSAL GONE WRONG While some larger oil and gas companies handle their own disposal of fracking wastewater, the process typically escapes the scarce regulatory scrutiny of a fracking site via a wastewater disposal contractor. 15 One fracking wastewater contractor, GreenHunter Water, LLC, explains its service called “Total Management Solutions™” as *90 follows: We understand that there is no single solution to exploration and production fluids management, and this understanding shapes our technology-agnostic approach to services. GreenHunter Water's approach to water management includes fixed-facility and mobile water treatment systems (Frac-Cycle®), an expanding portfolio of UIC Class II Salt Water Disposal wells with advanced hauling and fresh water logistics services, a next-generation modular aboveground storage tank system (MAG Tank™), and compliance tracking technologies (RAMCAT™) that allow shale producers to reduce costs while they account for their fluids from cradle-to-grave and adhere to emerging regulations. 16

Essentially, a fracking wastewater disposal company's goal is to make fracking waste disappear, which is no easy job. Besides the unfathomable volume of waste requiring disposal, there is also no scientific means of making the matter disappear. In 2007, before the current fracking boom began, United States oil and gas production facilities onshore and offshore already generated an estimated 882 billion gallons of produced water. 17 In its 2013 Annual Report, GreenHunter Water, LLC boasted of never being “fined, cited or notified of any environmental violations that would have a material adverse effect upon our financial position, liquidity or capital resources.” 18 In that report and with much hubris, the firm predicted “new environmental regulations resulting in a material adverse impact to our financial position, liquidity, capital resources or future results of operations [are] unlikely.” 19 This section seeks to undermine that horrifying prediction by highlighting only a small sample of the evidence suggesting a need for environmental regulations that would fundamentally impact the future results of fracking wastewater disposal operations. A good deal of fracking wastewater is currently disposed through underground injection into Class II wells, 20 either in the very wells where the fracking occurred, or it is transferred and injected into Class *91 II wells offsite. Federal statute defines Class II wells as wells used to inject fluids:

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(1) Which are brought to the surface in connection with natural gas storage operations, or conventional oil or natural gas production and may be commingled with waste waters from gas plants which are an integral part of production operations, unless those waters are classified as a hazardous waste at the time of injection. (2) For enhanced recovery of oil or natural gas; and (3) For storage of hydrocarbons which are liquid at standard temperature and pressure. 21

Sometimes these Class II wells leak directly into aquifers used for drinking water. 22 Whether fracking wastewater is injected directly into an underground drinking water source intentionally or not, the waste may show up in that source decades later. 23 Unlike fine wine, there is no evidence that fracking wastewater gets any better with age. Remarkably, even though the oil and gas industry enjoys exemptions and loopholes from federal regulations, polluters still slip up occasionally, and when that happens they are levied what are effectively non-punitive fines. For example, in September 2014, Trans Energy, Inc. settled a lawsuit brought by the EPA and West Virginia by agreeing to $3,000,000 in civil penalties and the responsibility for cleanup of streams at fifteen separate sites. 24 While setting up its fracking operations, the energy company allegedly discharged “pollutants, including dredged or fill material, and/or control[led] and direct[ed] the discharge of pollutants, including dredged or fill *92 material, into waters of the United States and/or the State, and construct[ed] dams within the State, without authorization.” 25 A month later, the company pleaded guilty to three misdemeanor charges related to the Clean Water Act, agreeing to pay an additional $600,000 fine as well as two years of probation. 26 As a publicly traded oil and gas producer with net assets of $111,769,145, 27 fines of merely $3,600,000 seem more like chump change than a deterrent. Further, the strictest probation condition that Trans Energy, Inc. faced was a requirement that its probation officer be provided “physical access to any work site or drill site within the Northern District of West Virginia, subject to any reasonable health and safety policies established by the defendant.” 28 Had a federal regulatory commission existed that had access to the fifteen sites, they might have never been polluted in the first place. Finally, District Judge John Preston Bailey, presiding over the criminal complaint, sealed the presentence investigation report, 29 making it virtually impossible for anyone, other than the parties themselves, to takeaway lessons on what specifically went wrong. In 2003, a tanker truck unloading fracking waste exploded in Rosharon, Texas, killing three employees and injuring others, after the truck's engine sucked in vapors from fracking waste that was being unloaded from the truck into a Class II well. 30 While the tragic incident goes to expose the volatility of fracking wastewater, an evaluation of the site prompted by the incident revealed how wrong things can go when this industry goes unregulated. 31 Texas Oil and Gathering had been disposing hazardous chemical waste from a petroleum refining plant into the site's Class II well, which unlike fracking waste, is not *93 exempt from the SDWA. 32 Because the company violated rules unrelated to fracking wastes, there was no refuge to be had in regulatory loopholes. The owner and operations manager of Texas Oil and Gathering were criminally convicted of conspiracy and violating the SDWA. 33 But for the fact that the site was enjoying timid regulation because it was designated for fracking waste disposal, the tragedy might not have occurred. Years later, an analysis of Class II well permits issued from 2007 to late 2010 found that regulators were still not confirming what companies were disposing in the wells, but rather trusting the waste disposal industry on the honor system. 34 According to the EPA, which relies on reporting from individual states, there are approximately 180,000 Class II injection wells in the

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United States. 35 The permits for these wells represent a tremendous amount of trust the federal government has placed in the hands of basically unregulated private contractors. Perhaps in part due to the dangers of transporting fracking wastewater via trucking, GreenHunter Water, LLC, for example, has been developing ways to transport fracking wastes using pipelines, trains, and barges. 36 In fact, when GreenHunter took credit for spearheading the movement to barge fracking waste, the firm claimed “barging is a safer and more cost-effective mode of transport than trucking or rail.” 37 What is clear is that transporting fracking wastewater, via any method, may be inherently dangerous. Pipelines, incidentally, have not proven to be an altogether safe way to transport fracking wastewater either. North Dakota has a twenty thousand mile network of pipelines used to move fracking waste, known as “gathering line [s].” 38 Sometime between the last week of *94 December 2014 and the first week of January 2015, a hole only two inches in diameter ruptured for unknown reasons in a gathering line near Williston. 39 Since employees of the pipeline's operator did not discover the rupture until January 6, 2015, 2.2 million gallons of “wastewater laced with heavy metals, high salt levels and possibly radioactive material,” flooded the Missouri River water basin. 40 The Williston spill was the largest of at least six wastewater spills discovered in North Dakota within the first ten weeks of 2015. 41 Another way fracking can go wrong is called a “frack hit.” 42 On November 20, 2012, on federal lands in Lea County, New Mexico, a fracking operation inadvertently caused the fracture paths of two wells to intercept. 43 The pressure from injection into one well shot back the other well to the surface, overflowing two open-top fiberglass storage tanks that spilled into a pasture and an unlined berm. 44 While this particular frack hit polluted less than 0.1 acre of pasture, 45 it goes to illustrate how difficult it is for the oil and gas industry to predict where fracking wastewater injected beneath the surface may pop back up. This example was unique in that the wastewater returned to the surface in full view of the operator, making plausible deniability impossible, compelling the operator to remediate the environmental damage. 46 It is somewhat comical when the only example of the oil and gas industry taking swift remediation action happens to be when the industry was the victim of its own harm. However, the Obama Administration took away a different lesson from the incident, using it to highlight the need for operators to balance the “several economic impacts,” aside from remediation, with the benefits of their (fracking) operations. 47 In August 2014, Benedict Lupo, the owner of fracturing *95 operations and a Youngstown, Ohio fracking waste storage and disposal company, Hardrock Excavating, LLC, pled guilty to a violation of the CWA. 48 He was sentenced to twenty-eight months in prison for directing his employees to empty 20,000-gallon fracking wastewater storage tanks into a storm water drain that emptied into a tributary creek of the Mahoning River, allegedly 33 times. 49 In all, Lupo owned and operated about fifty-eight mobile storage tanks at the Hardrock facility, 50 so it is difficult to fathom how much waste the company released before it was caught. Although “tens of thousands of gallons of fracking waste” were discharged into a creek later found to be “void of life,” Lupo was fined only $25,000. 51 Lupo's misdeeds were not uncovered by any existing regulatory authority, but only brought to light after an “anonymous tipster” alerted the Ohio Department of Natural Resources. 52 Acting on the tip, the agency visited the site and caught an employee emptying a tank. 53 According to court documents, Lupo had directed his trusted employees that “the dumping should only occur at night and after all of the other employees had left the facility ....” 54 Without underscoring the importance of whistleblowers in environmental regulation, it would be naïve to presume a reliance on their tips alone could lead to the prosecution of more than a fraction of polluters. This fact underscores the need not only for regulators, but an enforcement arm that includes investigators.

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If the Youngstown story fails to convince anyone about the honor system's ineffectiveness, consider the fact that the barge transport of fracking wastewater enjoys not only the cover of night, but also advantages unique to lakes and rivers. From the polluter's perspective, larger bodies of water are much more conducive to the dissolution of *96 wastewater disposal as they would help keep a potential polluter's identity a mystery, reducing the risks that a polluter would be caught. Further, in the unlikely event a polluter was actually caught disposing of fracking wastewater into a lake or river from a barge, gathering evidence would be even more challenging than in the Youngstown case, where investigators were able to point to pictures of a “void of life” creek directly downstream from the polluter's operations. 55 Undeniably, direct wastewater injection into a large body of water would still have environmental impacts, but those impacts would be more difficult to trace, which brings us to a final disconcerting fracking wastewater disposal concern. Fracking wastewater is already being injected directly into both the Gulf of Mexico and Pacific Oceans just off U.S. shores. 56 According to the Center for Biological Diversity, “[o]il and gas companies [have been] allowed to discharge fracking chemicals mixed with wastewater directly into the waters of the Gulf.” 57 Both the Federal Bureau of Ocean Energy Management (“BOEM”) and the Bureau of Safety Environmental Enforcement (“BSEE”) authorized revisions to certain offshore permits that categorically excluded fracking activity from review beginning in 2014. 58 As a result of those exclusions, the release of nine billion gallons of fracking wastewater per year is permitted directly into the ocean waters barely off California's coast. 59 These waters are habitats for whales, sea otters, *97 sea turtles and over 500 species of fish. 60 At least with mainland fracking, community members can potentially become aware of wastewater disposal. They may accidentally notice the trucks, rail and/or barges leaving the fracking sites. However, fracking wastewater quietly pumped directly into beach waters would escape that scrutiny. In January 2015, the Center sued the Obama Administration for ignoring a 2014 Freedom of Information Act request that had the potential to cast light on what the nonprofit called “almost no oversight or input from coastal communities and little public disclosure” about the offshore fracking taking place in the Gulf. 61 In another suit, filed in February 2015, the Center challenged the Department of the Interior's rubberstamping of offshore fracking in violation of the Outer Continental Shelf Lands Act, the National Environmental Policy Act, and the Coastal Zone Management Act. 62 Thus, offshore fracking wastewater disposal is already occurring, and that fact should be considered in any comprehensive regulatory solution. But the most alarming thing about offshore fracking waste disposal is the Obama Administration's feigned ignorance that injecting wastewater into the very beach water children swim could even be problematic. In 2013, as a result of a 2010 executive order, twenty-seven federal agencies working together as the National Ocean Council released the National Ocean Policy Implementation Plan. 63 The National Ocean Council wrote that the 32-page document translated National Ocean Policy into “on-the-ground actions that will benefit Americans,” and “presents specific actions Federal agencies will take to bolster our ocean economy, improve ocean health, support local communities, strengthen our security, and provide better science and information to improve decision-making.” 64 Arguably, those goals would be compromised by the public health and environmental harms *98 that come with disposing fracking wastewater directly into coastal waters. Yet, except for a vague reference to fostering more efficient permitting of offshore energy infrastructure, 65 the plan altogether ignores the need for any regulation of fracking waste into US coastal waters. 66 Disturbingly, one of the federal agencies making up the National Ocean Council responsible for the plan was the Department of the Interior, 67 the very agency responsible for permitting offshore fracking disposal since it includes both the BOEM and BSEE. 68 When a governmental agency charged with protecting natural resources fails to even acknowledge the very harms it has permitted, it is fair to question the agency's integrity and re-examine the regulatory regime that produced such failure.

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In January 2015, the Obama Administration announced plans to allow more offshore oil and gas exploration, including in the Gulf of Mexico, off the Alaskan coast, and in an unprecedented move, off the South Atlantic coast, including areas offshore Virginia, North and South Carolina, and Georgia. 69 Fortunately, due only to “current market conditions and low industry interest,” the administration canceled lease sales in the Arctic in October. 70 Given how the Obama Administration allowed fracking waste to be pumped directly into the Pacific Ocean and Gulf of Mexico without the general public's knowledge or consent, it is troubling to consider how future offshore fracking waste disposal could play out under even less environmentallyconscious administrations. The spectacle of offshore fracking wastewater disposal nicely illustrates the constitutional inadequacy of any simple regulatory solution, or even reliance on state or local regulations or bans. State *99 and local fracking bans could never enjoy jurisdiction over the offshore fracking that took place offshore in federal waters. Similarly, the removal of the SDWA's fracking waste exemption would not affect offshore fracking, since the SDWA would not have jurisdiction over seawater in any event. Although ocean life plays an undeniably vital role in our planet's ecosystem, little or no regulatory authority exists to prevent pollution of environmental harms caused by fracking wastewater injection into federal waters.

B. THE CURRENT FRACKING WASTE REGULATORY REGIME Why isn't the EPA regulating fracking wastewater disposal already? One scholar, SMU School of Law's Professor Jeffrey M. Gaba, published a 2014 article explaining how the EPA's failure to regulate was not because the agency lacked authority. 71 Gaba analyzed ways the EPA could regulate fracking wastewater disposal within existing authority, alongside the EPA's oftenquestionable reasoning for abdicating to do so. 72 He concluded, “EPA has the authority, but perhaps not the will, to establish a set of consistent national regulations that will assure the proper management of fracking wastewater.” 73 Notwithstanding creative methods available to regulate fracking waste within existing authority proposed by Gaba, the most intuitive methods have been obstructed directly by Congress. 74 For example, based on its name, one would reasonably expect the Safe Drinking Water Act (“SDWA”) would be a fierce tool to at least regulate the threat of fracking waste penetrating drinking water, but as part of the 2005 Energy Policy Act, Congress amended the SDWA to exempt the regulation of fracking. 75 “The term underground injection” was appropriately defined as “the subsurface emplacement of fluids by well injection,” but following the statutory definition was an exclusion for “the underground injection of fluids or propping agents (other than *100 diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities.” 76 Essentially, fracking processes that did not use diesel fuel escaped the SDWA's jurisdiction and scrutiny. 77 This regulatory vacuum is often called the “Halliburton Loophole,” since former Halliburton Company CEO, Dick Cheney, took office as the U.S. VicePresident and headed a task force responsible for its creation. 78 Similarly, the fracking wastewater disposal industry enjoys an implied exemption from regulation under the Resource Conservation and Recovery Act (“RCRA”), because the EPA has never listed fracking waste as “hazardous waste.” 79 In 1988, the EPA considered listing fracking waste as hazardous waste, but decided not to do so, not because it found fracking waste absent hazardous constituents, but because the agency did not want to increase administrative burdens. 80 Although fracking waste is not listed as hazardous waste under RCRA, it is not precluded from being considered hazardous under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). 81 However, since CERCLA is focused on federal clean up of hazardous waste after environmental harms have already occurred, 82 that hardly gives peace of

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mind with a fast-moving liquid waste typical of produced water. Simply put, produced water can move and do environmental damage much quicker than CERCLA could react. 83 Congressman Matt Cartwright (D-PA-17) introduced a bill, H.R. 2825, that would have required the EPA to promulgate regulations *101 regarding standards applicable to generators, transporters, and owners and operators of facilities for the treatment, storage, or disposal of wastes. 84 Besides proposing regulations related to fracking disposal, the ambitious, yet ultimately unsuccessful, reform would have eliminated the exemption the fracking waste industry enjoys from RCRA. 85 In a quote included in a press release from Congressman Cartwright's office, PennEnvironment Field Director Adam Garber illustrated the importance regulating the disposal of fracking waste: It's clear to everyone that the 1.3 billion gallons of fracking waste generated in Pennsylvania over the last few years, which is often laced with numerous toxins and cancer-causing chemicals, is hazardous to our health and environment. The CLEANER Act will ensure that companies can no longer spray this toxic fluid on our roads, dump hundreds of thousands of gallons into water treatment facilities, or use it to water cattle. We applaud Congressman Cartwright for trying to make the law follow what we all already know: fracking wastewater is hazardous to our health. 86

Before Cartwright's attempt, Congresswoman Diana DeGette (D-CO-1) had sponsored a 2008 bill to remove the SDWA's fracking exemption, but that bill died in committee with only two cosponsors. 87 To be clear, despite its inaction, the EPA has recognized for years that fracking could cause environmental harms. In 2011, the EPA released a plan that recognized that “the public has raised concerns about hydraulic fracturing that extend beyond the potential impacts on drinking water ....” 88 Concerns acknowledged by the EPA included *102 “air impacts, ecological effects, seismic risks, public safety, and occupational risks.” 89 According to the EPA, those topics were “outside the scope of this study plan, but should be examined in the future.” 90 More recent conclusions by the EPA that minimized the potential risks, particularly to drinking water resources, were challenged in a preliminary report released in November 2015 by its own panel of independent scientific advisers. 91 Even the gas industry acknowledges fracking concerns as legitimate, before dismissing them as irrelevant to their agenda. 92 One influential science journal published an article concluding that fracking did not impact the methane levels in drinking water, only to later issue a correction that the authors did not disclose their financial ties to Chesapeake Energy. 93 Perhaps United States President Barack Obama is hesitant to regulate fracking because he, like his former Secretary of State, now 2016 United States presidential candidate, Hillary Clinton, views the fracking of United States natural gas as a geopolitical tool. 94 No matter the reason, with the EPA failing to regulate fracking waste, many believe the burden falls on state governments, but some states, like Texas, simply decline to regulate. 95 In fact, the Fort Worth *103 suburb of Denton passed the lone local ban in Texas, the state's legislature passed a state law preempting local regulation of oil and gas operations altogether. 96 Even before that, the chair of the Texas Railroad Commission, Christi Craddick, vowed to ignore Denton's ban and issue permits in spite of it. 97 Local fracking bans were originally thought to have a limited impact, as demonstrated in the “ripe for fracking” Devonian, Marcellus, and Utica shale plays covering New York, Pennsylvania, Ohio, West Virginia, Maryland, Kentucky and Virginia. 98 These overlaying plays cover over 120,000 square miles, yet prior to 2014, only 4,400 square miles, 3.7%, were subject to

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fracking bans by political subdivisions, and over 97.947% of those were in the state of New York. 99 However, that paradigm changed radically when attorney Helen Slottje, who was responsible for the first local bans in her own community of upstate New York, took the model on the road. 100 As Slottje recently said, “the system has been steadily rigged, and we keep losing, so it seemed hopeless at the federal and state level.” 101 Slottje and her husband David developed a legal strategy of using local zoning laws, instead of land-use laws, to ban gas drilling across New York. 102 Their strategy was used successfully in over 200 New York communities. 103 New York's highest court upheld the local ordinances, and in December 2014 New York's Governor Andrew Cuomo even signed a statewide ban into law. 104 The Slottjes are not finished. Through a non-profit they established, the Community *104 Environmental Defense Council, they are working to customize their local fracking ban model to communities outside of New York, like Oklahoma. 105 New York's state fracking ban is not without critics, as some have alleged that the ban may be responsible for increased fracking across the state line in Pennsylvania, as well as, believe it or not, a movement amongst some southern New Yorkers who are even contemplating secession from their state. 106 Incidentally, the courage of New York's governor may be the exception, as it can be easily contrasted with the position of neighboring New Jersey Governor Chris Christie, who has twice vetoed bills that would ban fracking waste in his state. 107 In 2013, California passed Senate Bill 4, fracking legislation that was not a ban, and also not focused on fracking waste disposal, but on creating efficiency in permitting procedures for fracking practices, tracking data, and delegating agencies within state government to create regulations after study of said data. 108 This limited regulatory approach of collecting data from the oil and gas industry has also been adopted by Wyoming, Colorado, and, most recently, by the Department of the Interior for federal and public lands, only. 109 In the 2014 elections, two California counties, San Benito and Mendocino counties, passed local fracking bans, while voters in Santa *105 Barbara County defeated a similar initiative. 110 While the Los Angeles City Council directed city staff to draft a fracking ban ordinance in 2014, the Western States Petroleum Association and the California Independent Petroleum Association both reacted swiftly by sending letters to the city laying out the legal arguments they plan to bring in potential lawsuits if the city moves forward with the ban. 111 Their arguments included the allegation that local action was preempted by state regulation, but also that potential claims for compensation from well owners and royalty holders of wells currently producing in Los Angeles “could easily be in the billions of dollars.” 112 Underscoring how much money is at stake, in 2015, the oil and gas industry spent $400,000 to successfully defeat a local ballot measure to ban fracking in La Habra Heights. 113 A Colorado District Court Judge held that the state's Oil and Gas Conservation Act, which permitted fracking, preempted the city of Longmont, Colorado's fracking ban. 114 In 2015, a New Mexico District Court Judge held a Mora County, New Mexico fracking ban ordinance unconstitutional for violating the Supremacy Clause. 115 The Ohio Supreme Court has also ruled that only the state has the authority to regulate oil and gas drilling. 116 Before that decision, proposals for *106 local Ohio bans had faired mixed results, with only five municipalities passing bans and three communities rejecting them in 2014. 117 A Pennsylvania court ruled that communities cannot ban fracking, but they can regulate it. 118 Incidentally, Pennsylvania is among the many U.S. states that do not regulate oil and gas well drilling, leaving the EPA with the responsibility of monitoring the state's Class II wells. 119

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To the Federal government's credit, in December 2014, the EPA directed a state that self-regulates its Class II wells, to reconsider the complete exemption from regulation the drought-ridden state gave to eleven aquifers in 1981. 120

III. ENVISIONING A REGULATORY SOLUTION A. WHY A FEDERAL FRACKING WASTE DISPOSAL COMMISSION IS REQUIRED. One approach to regulating fracking wastewater disposal is to operate within the framework of existing federal regulations. 121 For example, in 2015, James O'Reilly, Professor of Public Health and Law at the University of Cincinnati, asked the Coast Guard to complete an environmental impact statement of GreenHunter's proposal to transport fracking waste on the Ohio River in order to “analyze the potential effects of a spill on the environment, and then issue rules the industry must follow as well as defined consequences when they don't.” 122 The *107 Coast Guard decided not to heed O'Reilly's request, instead issuing conflicting messages leading GreenHunter to believe it could legally transport the waste anyway. 123 Professor Hannah Wiseman proposed that states should determine, ideally with the guidance of a national study, whether their state's control over the oil and gas industry “adequately identifies and accounts for the effects of fracing on human health and the environment.” 124 This proposal has problems. Even with national guidance, Wiseman's proposal of counting on states to increase their environmental regulations is unrealistic. Those that do pass fracking regulations are unlikely to take any sincere or principled stand that might threaten the extraction and consumption of natural gas. Just consider how Texas does not regulate fracking, except to consider ways to preempt local authority from regulating it. 125 Similarly consider Wyoming, where the state filed a complaint with the federal district court asking the Court to set aside Obama's minimal regulation that applies only to federal and public lands. 126 Besides, states are falling behind on regulating fracking not just because they lack federal guidance, but also because state regulators face budget restraints that make monitoring increased shale gas production outside their means. 127 Further, with the demand for natural gas increasing, states that recognize the danger of fracking waste may choose to ban fracking wastewater disposal within their states rather than fracking altogether. Such a policy would lead to fracking waste being transported to, and disposed of in, only the states where environmentally conscious *108 citizens lacked the political power to stop it. Already, large quantities of fracking wastes are transported across state lines. 128 If states are left free to permit, ban, regulate, or choose not to regulate fracking wastewater disposal within their borders, the potential exists for waste to flow to the remaining unregulated states, thereby concentrating the impact of the environmental harms in those states. California's fracking waste should not be absorbed by neighboring states, which are more vulnerable to political influences of the gas industry and economic forces that result in a “race to the bottom” with respect to environmental regulations. 129 Even if all U.S. states took the better path of protecting U.S. citizens and waters from fracking waste disposal, the fear remains that the industry might just export it to Mexico or Central America. After all, it is not like there is not a precedent for U.S. energy corporations exporting toxic waste. In 2006, Virginia-based AES Corporation settled a lawsuit filed by the government of Dominican Republic for $6,000,000 after AES allegedly left one hundred million pounds of coal ash, generated in Puerto Rico, on a Dominican Republic beach. 130 Since that settlement, AES has faced at least one additional civil claim from child plaintiffs born with birth defects allegedly caused by the pollution of that exported waste. 131 Aside from an international law perspective, morally, a federal regulatory

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solution to fracking waste disposal should include an outright ban on exporting the waste internationally, with strict and severe civil and criminal penalties. More support for a federal regulatory solution comes from the fact that oil and gas industry lobbyists can more easily finance and win smaller state and local battles, ensuring there will always be a place for *109 their fracking waste to be disposed of with the lowest short-term costs possible. The gas industry already has cozy access to state legislators through groups like the American Legislative Exchange Council (“ALEC”), which has been described as “the pay-to-play corporate bill mill.” 132 Another less-obvious consequence of leaving fracking regulation to states is that it can have the adverse effect of states preempting local regulation of fracking, as a number of states have already done. 133 Conveniently, ALEC already has experience using the preemption strategy at the state level to defeat local progressive gains in issues like living wage laws and sick leave policies at the local level. 134 Based on ALEC's record, it is foreseeable it could push through model legislation prohibiting local fracking ordinances in many states. Fracking wastewater disposal is most appropriately regulated by the federal government under the Commerce Clause, because many of the harms suffered are national interests due to their interstate nature. 135 Further, the federal government already exercises authority to protect migratory birds due to their interstate nature, 136 and harm to migratory birds can be considered a taking under the Migratory Bird Treaty Act. 137 But interstate wildlife is only half the story, as pollution itself can cross state lines. 138 As more wells are fracked, the risks of interstate pollution increase, as does the need for a federal response to that quite predictable consequence. Finally, piecemeal local fracking bans have proven effective at raising awareness about the adverse impacts of fracking, and in the sole *110 case of New York, even leading to a statewide ban. 139 But state fracking bans have been the exception, not the rule, as only two states other than New York have passed bans: Hawaii and Vermont. 140 Further, local bans are hard work for activists with mixed results. Even voters in Youngstown, Ohio, the community suffering from a “void of life” creek directly downstream from a fracking operation, 141 rejected a local fracking ban in 2014. 142 A further shortcoming inherent in local bans is that citizen lobbying for local regulation can have the adverse effect of drawing focus and energy away from potential federal regulation. 143 However, other limitations of local bans discussed above, including the capacity to deal with fracking wastewater disposal where it is not banned and/or offshore in federal waters, prove more problematic. Finally, besides fracking wastewater, solid fracking waste is also being sent to landfills in the form of filter socks from processing and treatment activities as well as “drill cuttings, tank bottoms, and used frac sands.” 144 While this article's scope did not thoroughly address the public health and environmental harms threatened by solid fracking waste, as a practical matter, it is a concern and a stand-alone federal regulatory commission charged with regulating fracking wastewater should logically also have authority over solid fracking waste.

B. HOW A FEDERAL FRACKING WASTE DISPOSAL COMMISSION COULD LOOK. Fracking waste is like nuclear waste, in that it remains dangerous in ways we have yet to understand, and even radioactive, for the foreseeable future. Imagine a world in which nuclear waste was not regulated. That is a pretty scary world, yet with respect to fracking *111 waste, that is our world. Slottje recently said: This process of fracking is not self-contained. It's not limited to one person's yard ... you're destroying public trust resources, like the air and water. Literally destroying water. It would be better to take the water that

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they use for fracking and put it on a rocket ship and send it to the Moon than to use it for fracking because that water is then available to pollute more water. 145

If Slottje's Moon-disposal idea sounds both outlandish and familiar, that may be due to a 1970's television show called Space: 1999, in which Earth's nuclear waste was sent to the Moon. 146 While this may seem absurd, given the ways in which the fracking wastewater disposal industry often engages in ‘creative’ disposal, it is perhaps not outside the realm of possibility. Fortunately, Congress created the United States Nuclear Regulatory Commission (“NRC”) in 1974 to regulate nuclear waste disposal in the United States, 147 so Moon disposal has not become a reality. This article proposes that fracking wastewater disposal in the U.S. should also be regulated by a yet-to-be-created federal commission modeled on the NRC, referred to here as the Fracking Waste Disposal Regulatory Commission (“FWDRC”). The NRC's regulatory mission pertains to three areas: nuclear reactors; nuclear materials; and the transportation, storage and disposal of nuclear waste, as well as decommissioning of nuclear facilities. 148 This model fits well with fracking, which lacks regulation in three areas: oversight of and accountability for onsite fracking processes; oversight of fracking chemicals used, which are often kept secret under trademark claims; and the transportation, storage and disposal of fracking waste, including the monitoring of fracking storage wells to ensure their casings are not compromised. Like the NRC, which has regional offices located in Georgia, Illinois, Pennsylvania and Texas, 149 the FWDRC should have regional *112 offices in California, Colorado, North Dakota, Ohio, and Texas, all centrally located within regions where fracking accidents have occurred already. 150 A regional headquarters within short driving distances of fracking sites would serve as a deterrent against misconduct by fracking wastewater disposal contractors. Further, increasing oversight of fracking disposal through visits from trained compliance investigators would greatly increase the odds of polluters being held accountable, even when they evade reporting by anonymous whistleblowers. 151 This deterrent would be especially necessary, because unlike the NRC, which has “onsite inspectors permanently stationed at each nuclear facility that it regulates,” 152 the expense of onsite regulators stationed at over 170,000 fracking sites, no matter how justified, would meet with incredible political opposition. Like the NRC, the FWDRC could have “five commissioners [in Level IV positions] appointed by the President and confirmed by the Senate for five-year terms.” 153 The most crucial component of creating any new authority would be minimizing the risk of agency capture, whereby those charged with regulating an industry actually serve the interest of the industry. 154 A common myth is that existing environmental governmental agencies represent public interest, when in reality they act in tight alliance with industry and private interest. 155 One scholar has listed “a toxic blend of agency capture” as the first factor explaining why “federal government's leadership in fracking regulation has been paralyzed.” 156 The Halliburton Loophole illustrates this problem well. One obvious way to minimize the risk of agency capture with a *113 new commission is to forbid candidates with a history of working for the oil and gas industry, or ownership of gas and oil interest, from appointment as commissioners. 157 A compromise on that proposal would at least require a “cooling period,” whereby candidates for appointment to the commission could not have worked in the oil and gas industry for at least the prior ten years. Another idea is a special kind of non-compete clause in employment contracts between FWDRC and its employees that would prohibit employees from seeking work in the oil and gas industry for a significant period of time after leaving the FWDRC. While the clause would expand revolving door laws, which

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already apply to federal employees, 158 the government's interest in protecting against agency capture justifies the expansion. Most importantly, diligent efforts should be made to prevent agency capture up front. Once agency capture exists, we're stuck with it. Perhaps the most-promising way to deconstruct agency capture may be through the judicial affirmation of a federal public trust doctrine. 159 If federal agencies were not only responsible for narrowly implementing their statutory mandates, but also held to a higher burden as stewards for future generations, agency capture would be unlawful. Unfortunately, the Court passed on an opportunity to make that affirmation in 2014. 160 No matter how independently the FWDRC is structured, the regulatory agency would be impotent without accompanying substantive federal legislation specifically charged with the authority to hold the fracking wastewater disposal industry accountable. Moreover, the language must be more than specific, it must not allow for discretion. While agency discretion sounds harmless enough, *114 experience has taught us that it has a way of becoming an agency's conduit to channel public resources into the hands of the very private industry it was charged with regulating. 161 The best model in U.S. environmental law is found in the Endangered Species Act (“ESA”). 162 The Supreme Court has held the words of Section 7 of the ESA “affirmatively command all federal agencies ‘to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence’ of an endangered species or ‘result in the destruction or modification of habitat of such species.”’ 163 To regulate fracking waste disposal, an act must charge the FWDRC to insure that the disposal of fracking wastewater within the U.S., or federal waters, does not jeopardize public health, or result in environmental harm. No doubt, this simple plain language will meet with extraordinary industry resistance. Not because it is confusing, over or under inclusive, or arbitrary or capricious, but because it will cost the oil and gas industry a lot of money, and compromise the use of fracking as a geo-political tool. The importance of a thoughtful and deliberate framework to strictly regulate fracking wastewater disposal free of regulatory capture cannot be overemphasized enough. Recent competing suggestions for regulating fracking wastewater disposal include the use of regulation as a tax revenue device in order to covertly deter outright fracking bans, 164 and allowing states to “choose to operate a public disposal facility in order to prevent out-of-state waste being treated within its borders.” 165 The implementation of either of these misguided ideas would do more to license harm than prevent it. It would be difficult to imagine more corruptible licensing schemes than those, but not impossible. Just picture those schemes implemented by decision-making regulators who are balancing their temporary public duty to protect human health and the environment with their own more tangible private interests in maximizing their industry's profits through oil and gas extraction. Ultimately, the only scenario worse than the *115 pursuit of lackluster or loose regulation of fracking wastewater disposal, is allowing a captured agency to be charged with its implementation. Thus, the regulation is crucial but the regulatory agency with the authority to implement it is just as crucial.

IV. CONCLUSION The full extent and number of public health risks and environmental harms related to fracking wastewater disposal may never be known. But since the existing regulatory regime at the local, state, and federal levels has proven incapable of offering substantive protection, 166 bold congressional action is necessary. Absent the political courage to ban fracking altogether, at the very least Congress should pass and the President should sign plain language legislation regulating the fracking waste disposal industry, and establishing the FWDRC to responsibly protect the public.

Footnotes

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a1

J.D. Candidate, Environmental Law Concentration, Whittier Law School, 2016; B.A. Political Science, University of Louisville, 2010. I dedicate this article to those who bear the burden of health risks related to fracking wastewater disposal. For encouragement, support and suggestions, thanks to Professor Peter L. Reich. Special thanks is due to the editorial staff of the Whittier Law Review, particularly Hana Gandi, Wes Stanfield and Carina Vega for their tenacity and conscientiousness throughout the publication process.

1

People v. Gold Run Ditch & Mining Co., 4 P. 1152, 1153-54 (Cal. 1884).

2

Debris: A Hydraulic Mining Case on Trial in the Superior Court, SACRAMENTO DAILY RECORD-UNION, Nov. 16, 1881, at 2, http://cdnc.ucr.edu/cgi-bin/cdnc?a=d&d=SDU18811116&e=–––––––en--20--1--txt-txIN–––––––.

3

Id.

4

Gold Run Ditch, 4 P. at 1156.

5

Id. at 1159-60.

6

Hannah Wiseman, Untested Waters: The Rise of Hydraulic Fracturing in Oil and Gas Production and the Need to Revisit Regulation, 20 FORDHAM ENVTL. L. REV. 115, 115 (2009).

7

Jeffrey M. Gaba, Flowback: Federal Regulation of Wastewater from Hydraulic Fracturing, 39 COLUM. J. ENVTL. L. 251, 266-67 (2014); Contra Jim Willis, Greenhunter/Coast Guard War of Words--MDN Explains It, MARCELLUS DRILLING NEWS (Feb. 6, 2015), http://marcellusdrilling.com/2015/02/greenhuntercoast-guard-war-of-words-mdn-explains-it/ (claiming produced water “does not contain the chemicals used in fracking-or if it does, the chemicals present are so minuscule and diluted as to be immeasurable”).

8

Id.

9

See Lauren Etter, No Fracking Way: Towns Across the Country Are Stopping the Big Energy Industry from Its Controversial Effort to Dig for Natural Gas, 100 A.B.A. J. 47, 49-50 (2014).

10

See Induced Earthquakes, EARTHQUAKE.USGS.GOV, http://earthquake.usgs.gov/research/induced/ (last visited Mar. 6, 2016).

11

Peter M. Rabinowitz et al., Proximity to Natural Gas Wells and Reported Health Status: Results of a Household Survey in Washington County, Pennsylvania, 123 ENVTL. HEALTH PERSP. 21, 26 (2014).

12

CONCERNED HEALTH PROFESSIONALS OF NY, COMPENDIUM OF SCIENTIFIC, MEDICAL, AND MEDIA FINDINGS DEMONSTRATING RISKS AND HARMS OF FRACKING (UNCONVENTIONAL GAS AND OIL EXTRACTIONN) 108-18 (3rd ed. 2015), http://www.psr.org/assets/pdfs/fracking-compendium.pdf.

13

Wiseman, supra note 6, at 183-91 (arguing for regulation of onsite groundwater contamination).

14

Gaba, supra note 7, at 316-17; see also Jack Healy, Heavyweight Response to Local Fracking Bans,N.Y. TIMES (Jan. 3, 2015), http://www.nytimes.com/2015/01/04/us/heavyweight-response-to-local-fracking-bans.html.

15

GREENHUNTER RES., INC., ANNUAL REPORT (FORM 10-K), at 14 (Mar. 31, 2014).

16

History, GREENHUNTER RESOURCES, http://greenhunterenergy.com/about/history (last visited Mar. 6, 2016).

17

GREENHUNTER RES., INC., supra note 15, at 2.

18

Id. at 8.

19

Id.

20

Gaba, supra note 7, at 263, 269.

21

40 C.F.R. § 144.6 (2013).

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22

See Abraham Lustgarten, Injection Wells: The Poison Beneath Us, PROPUBLICA (June 21, 2012, 7:20 AM), http:// www.propublica.org/article/injection-wells-the-poison-beneath-us.

23

Wiseman, supra note 6, at 185-86.

24

Consent Decree at 1, 13, 15, United States v. Trans Energy, Inc., No. 14-117 (N.D.W. Va. 2014), http://www2.epa.gov/ sites/production/files/2014-09/documents/transenergyinc.pdf; Trans Energy Inc. to Restore Streams and Wetland Damaged by Natural Gas Extraction Activities in West Virginia/Company will also pay $3 million civil penalty to resolve alleged Clean Water Violations, U.S. ENVTL. PROT. AGENCY (Sept. 2, 2014), http://yosemite.epa.gov/opa/admpress.nsf/ d0cf6618525a9efb85257359003fb69d/84ad6a5e4f32adf985257d4700727291.

25

Consent Decree at 1-2, Trans Energy, Inc., No. 14-117.

26

TRANS ENERGY, INC., ANNUAL REPORT (FORM 10-K), at 1 (May 11, 2015), http://www.edgarexplorer.com/EFX_dll/ EdgarPro.dll?FetchFilingHTML1?SessionID=d0Z4eIqseZZu3T9&ID=10688935.

27

Id. at F-3.

28

Judgment in a Criminal Case at 3, United States v. Trans Energy, Inc., No. 5:14-cr-00043-JPB-JES (N. Dist. W. Va. Apr. 23, 2015), ECF 26.

29

Presentence Investigation Report (Sealed), United States v. Trans Energy, Inc., No. 5:14-cr-00043-JPB-JES (N. Dist. W. Va. Apr. 22, 2015), ECF 25.

30

Abrahm Lustgarten, The Trillion-Gallon Loophole: Lax Rules for Drillers that Inject Pollutants into the Earth, PROPUBLICA (Sept. 20, 2012, 10:12 AM), http://www.propublica.org/article/trillion-gallon-loophole-lax-rules-for-drillers-that-inject-pollutants.

31

Id.

32

Id. (occurring before the Halliburton Loophole).

33

Id.

34

Id.

35

Class II Oil & Gas Related Injection Wells, U.S. ENVTL. PROT. AGENCY, http://www.epa.gov/uic/class-ii-oil-and-gas-relatedinjection-wells (last updated Oct. 08, 2015).

36

GREENHUNTER RES., INC., supra note 15, at 4.

37

GreenHunter Resources Declares Monthly Cash Dividend on 10% Series C Cumulative Preferred Stock, GREENHUNTER RESOURCES (Feb. 9, 2015) [GreenHunter Resources Declares Monthly Cash Dividend], http://phx.corporate-ir.net/phoenix.zhtml? c=219127&p=irol-newsArticle&ID=2014995.

38

Zahra Hirji, Lawmakers Move to Regulate Pipelines, After a Record Spill in a Drilling Boom, INSIDECLIMATE NEWS (Mar. 11, 2015), http://insideclimatenews.org/news/11032015/lawmakers-move-regulate-pipelines-after-record-spill-drilling-boom.

39

Id.

40

Id.

41

See id.

42

Hydraulic Fracturing on Federal and Indian Lands, 80 Fed. Reg. 16,128, 16,148 (Mar. 26, 2015) (to be codified at 43 C.F.R. pt. 3160).

43

Id. at 16,204.

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44

Id.

45

Id.

46

See id.

47

Id.

48

John Caniglia, Youngstown Contractor Sentenced to 28 Months for Dumping Fracking Waste, THE PLAIN DEALER (Aug. 5, 2014, 5:33 PM), http://www.cleveland.com/court-justice/index.ssf/2014/08/youngstown_contractor_sentence.html.

49

Id.

50

James F. McCarty, Youngstown Gas Driller Indicted, Accused of Dumping Fracking Waste into River, THE PLAIN DEALER (Feb. 28, 2013, 2:32 PM), http://www.cleveland.com/metro/index.ssf/2013/02/youngstown_gas_driller_indicte.html.

51

Caniglia, supra note 48.

52

McCarty, supra note 50.

53

Id.

54

Id.

55

See Caniglia, supra note 48 (statement of U.S. District Judge) (“All you have to do is look at those photographs to see the damage that was done”).

56

Press Release, Ctr. for Biological Diversity, Lawsuit Seeks to Halt Offshore Fracking in Cal., Legal Action Could Also Affect Federally Permitted Fracking in Gulf of Mex. (Feb. 19, 2015), http://www.biologicaldiversity.org/news/press_releases/2015/ fracking-02-19-2015.html.

57

Press Release, Ctr. for Biological Diversity, Lawsuit Seeks Fed. Documents Revealing Extent of Offshore Fracking in Gulf of Mex. (Jan. 8, 2015), http://www.biologicaldiversity.org/news/press_releases/2015/fracking-01-08-2015.html.

58

CA Environmental Group Takes on Govt Agreement with Oil Company to Dump Chemicals, RUSSIA TODAY (Feb. 28, 2014, 1:58 AM) [hereinafter CA Environmental Group], http://rt.com/usa/environmental-govt-agreement-dump-chemicals-098/.

59

CTR. FOR BIOLOGICAL DIVERSITY, TROUBLED WATERS: OFFSHORE FRACKING'S THREAT TO CALIFORNIA'S OCEAN, AIR, AND SEISMIC STABILITY 1 (2014) http://www.biologicaldiversity.org/campaigns/offshore_fracking/pdfs/ Troubled_Waters.pdf (noting that even half of the oil platforms located in the Santa Barbara Channel discharge “produced water, including fracking chemicals, into the ocean”).

60

Id.

61

Press Release, Lawsuit Seeks Fed. Documents Revealing Extent of Offshore Fracking in Gulf of Mex., supra note 57.

62

Press Release, Lawsuit Seeks to Halt Offshore Fracking in Cal., supra note 56.

63

NAT'L OCEAN COUNCIL, NATIONAL OCEAN POLICY IMPLEMENTATION PLAN ii (April 2013), http:// www.whitehouse.gov//sites/default/files/national_ocean_policy_implementation_plan.pdf.

64

Id.

65

Id. at 22.

66

See generally id. at i-32. (outlining a plan focused more on economic growth, and saving tax dollars).

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67

Id. at i.

68

Bureaus and Offices, U.S. DEP'T OF THE INTERIOR, http://www.doi.gov/bureaus/index.cfm (last visited Mar. 6, 2016); see CA Environmental Group, supra note 58.

69

Press Release, U.S. Dep't of the Interior, Interior Department Announces Draft Strategy for Offshore Oil and Gas Leasing (Jan. 27, 2015), http://www.doi.gov/news/pressreleases/interior-department-announces-draft-strategy-for-offshore-oil-and-gas-leasing.cfm.

70

William Yardley, U.S. Cancels Arctic Oil-lease Sales, Citing ‘Low Industry Interest’, LA TIMES (Oct. 16, 2015), http:// www.latimes.com/nation/la-na-sej-arctic-oil-leases-20151017-story.html.

71

Gaba, supra note 7, at 318.

72

See generally id. at 271-318 (discussing the potential for regulating fracking wastewater as a hazardous waste under the Resource Conservation and Recovery Act (“RCRA”), and the potential for regulating the discharge of wastewater into Surface Waters and into Publicly Owned Treatment Works under the Clean Water Act (“CWA”)).

73

Id. at 318.

74

Id. at 271-72.

75

Gaba, supra note 7, at 264-65; see also Wiseman, supra note 6, at 145 (quoting the exemption Congress included in the SDWA).

76

42 U.S.C. § 300h (2013).

77

Natural Gas Extraction - Hydraulic Fracturing, EPA, http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing/ wells_hydroreg.cfm (last visited Mar. 6, 2016).

78

The Halliburton Loophole, EARTHWORKS, http://www.earthworksaction.org/issues/detail/ inadequate_regulation_of_hydraulic_fracturing#.VPa8ElPF9bt (last visited Mar. 6, 2016).

79

Gaba, supra note 7, at 271.

80

Id. at 272-73.

81

Arizona v. Motorola, Inc., 774 F. Supp. 566, 573 (D. Ariz. 1991).

82

See generallyINST. FOR TRIBAL ENVTL. PROF'LS, N. ARIZ. UNIV., CERCLA: THE HAZARDOUS WASTE CLEANUP PROGRAM, http://www7.nau.edu/itep/main/HazSubMap/docs/CERCLA/EPA_CERCLA.pdf (last visited Mar. 6, 2016) (showing that CERCLA was created in response to environmental disasters).

83

See Rabinowitz, supra note 11, at 5-7.

84

Closing Loopholes and Ending Arbitrary and Needless Evasion of Regulations (CLEANER) Act, H.R. 2825, 113th Cong. (1st Sess. 2013).

85

Press Release, Cartwright Introduces Legislation to Eliminate Oil and Gas Toxic Waste Loophole, CARTWRIGHT (July 26, 2013), http://cartwright.house.gov/media-center/press-releases/cartwright-introduces-legislation-to-eliminate-oil-and-gas-toxicwaste [hereinafter Cartwright]; but cf. Gaba, supra note 7, at 277-78, 317 (warning that removal of the RCRA exclusion, alone, would not trigger regulation of all produced water).

86

Cartwright, supra note 85.

87

H.R. 7231, 110th Cong. (2d. Sess. 2008).

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88

OFFICE OF RESEARCH AND DEV., U.S. ENVTL. PROT. AGENCY, PLAN TO STUDY THE POTENTIAL IMPACTS OF HYDRAULIC FRACTURING ON DRINKING WATER RESOURCES xi (Nov. 2011), http://www2.epa.gov/sites/production/files/ documents/hf_study_plan_110211_final_508.pdf.

89

Id. at xi, 81-84.

90

Id. at xi.

91

Neela Banerjee, EPA Finding on Fracking's Water Pollution Disputed by Its Own Scientists, INSIDE CLIMATE NEWS (Nov. 19, 2015), http://insideclimatenews.org/news/19112015/fracking-water-pollution-epa-study-natural-gas-drilling.

92

See Barrett Goldsmith, McClendon to Business Journalists: ‘Get the Real Story’, HOUS. BUS. J., http://sabew.org/2011/04/ mcclendon-to-business-journalists-get-the-story/ (last visited Mar. 6, 2016) (quoting Chesapeake Energy Corp. CEO Aubrey McClendon as saying, “We can tear up a road, we can be noisy, we can create dust, we can hurt somebody, and sometimes there is a lack of transparency about operations. All those are legitimate concerns, but fracking is not the story.”).

93

Neela Banerjee, Journal Corrects Fracking Study Over Undisclosed Funding, INSIDE CLIMATE NEWS (May 7, 2015), http:// insideclimatenews.org/news/07052015/journal-corrects-fracking-study-over-undisclosed-industry-funding.

94

Coral Davenport & Steven Erlanger, U.S. Hopes Boom in Natural Gas Can Curb Putin,N.Y. TIMES (Mar. 5, 2014), http:// www.nytimes.com/2014/03/06/world/europe/us-seeks-to-reduce-ukraines-reliance-on-russia-for-natural-gas.html; See also Curtis Morrison, Super PAC Credits Hillary Clinton for Selling Fracking to the World, ECOWATCH (Jan. 10, 2016), http:// ecowatch.com/2016/01/10/clinton-correct-the-record/.

95

Wiseman, supra note 6, at 116; accord Gaba, supra note 7, at 254.

96

TEX. NAT. RES. CODE ANN. § 81.0523 (West 2015).

97

Jessica Mason, ALEC and Big Oil Work to Overturn Denton Fracking Ban, PR WATCH (Nov. 14, 2014, 10:44 AM), http:// www.prwatch.org/news/2014/11/12668/alec-and-big-oil-work-overturn-denton-fracking-ban.

98

Robert D. Cheren, Fracking Bans, Taxation, and Environmental Policy, 64 CASE WESTERN RES. L. REV. 1483, 1485 (2014).

99

Id. at 1485, 1491.

100

Etter, supra note 9.

101

Pub. Interest Envtl. Law Conference, PIELC 2015 Keynote 5 - Brower Award, Helen Slottje, Derrick Evans, YOUTUBE (Mar. 7, 2015) [hereinafter PIELC 2015 Keynote 5], https://www.youtube.com/watch?v=Ez8WnJtlpCQ.

102

Id.

103

Id.

104

Thomas Kaplan, Citing Health Risks, Cuomo Bans Fracking in New York State, N.Y. TIMES (Dec. 17, 2014), http:// www.nytimes.com/2014/12/18/nyregion/cuomo-to-ban-fracking-in-new-york-state-citing-health-risks.html.

105

See Joe Wertz, What Oklahoma Can Learn From a Municipal Ban on Fracking in Texas, NPR (Nov. 13, 2014, 6:15 AM), https:// stateimpact.npr.org/oklahoma/2014/11/13/what-oklahoma-can-learn-from-a-municipal-fracking-ban-in-texas/.

106

John Luciew, Could Fracking Ban Fracture New York State? NY Towns Talk Secession to Join Pa, PENNLIVE (Feb. 23, 2015, 7:31 AM), http://www.pennlive.com/midstate/index.ssf/2015/02/could_fracking_ban_fracture_ne.html.

107

Brent Johnson, Christie Vetoes Bill Aiming to Ban Fracking Waste in N.J., NJ (Aug. 8, 2014 5:03 PM), http://www.nj.com/politics/ index.ssf/2014/08/christie_vetoes_bill_aiming_to_ban_fracking_waste_in_nj.html.

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108

S.B. 4, (Cal. 2013); Jeremy B. White, California Fracking Bill Signed by Gov. Jerry Brown,THE SACRAMENTO BEE (Sept. 20, 2013, 3:50 PM), http://blogs.sacbee.com/capitolalertlatest/2013/09/california-fracking-bill-signed-by-gov-jerry-brown.html.

109

Hydraulic Fracturing on Federal and Indian Lands, 80 Fed. Reg. 16,128, 16,129 (Mar. 26, 2015) (to be codified at 43 C.F.R. pt. 3160) (referring to fracking wastewater more glamorously as “recovered fluids.”).

110

Carly Schwartz, California Voters Deal a Major Blow to Fracking, HUFFINGTON POST (Nov. 5, 2014, 9:00 AM), http:// www.huffingtonpost.com/2014/11/05/california-fracking-ban_n_6102674.html.

111

Letter from Craig A. Moyer, Partner, Mannat, Phelps and Phillips, LLP, to Michael N. Feuer, L.A. City Attorney, City of L.A. (Jan. 14, 2015), http://clkrep.lacity.org/onlinedocs/2013/13-1152-S1_misc_1-14-15.pdf; Letter from Catherine Reheis-Boyd, President, Western States Petroleum Association, to Michael N. Feuer, L.A. City Attorney, City of L.A. (Feb. 28, 2014) http://clkrep.lacity.org/ onlinedocs/2013/13-1152-S1_misc_1-14-15.pdf.

112

Letter from Craig A. Moyer, supra note 111; Letter from Catherine Reheis-Boyd, supra note 111.

113

Mike Sprague, Election 2015: La Habra Heights Anti-oil Initiative Loses, WHITTIER DAILY NEWS (Mar. 3, 2015, 9:55 PM), http://www.whittierdailynews.com/government-and-politics/20150303/election-2015-la-habra-heights-anti-oil-initiative-loses.

114

Order Granting Motions for Summary Judgment, Colo. Oil & Gas Ass'n v. City of Longmont, No. 13CV63, 2014 WL 3690665, at *3 (D. Colo., July 24, 2014).

115

Swepi, LP v. Mora County, 81 F. Supp. 3d 1075, 1203 (Dist. N.M. 2015).

116

The State ex rel. Morrison v. Beck Energy Corp., 143 Ohio St.3d 271, 279 (2015); Candace Bernd, Since the City of Denton Banned Fracking, Texas GOP Moves to Preempt Local Control, TRUTHOUT (Mar. 8, 2015, 12:00 AM), http://www.truthout.org/news/ item/29485-since-the-city-of-denton-banned-fracking-texas-gop-moves-to-pre-empt-local-control.

117

Daniel M. Kavouras et al., BakerHostetler's Shale Oil and Gas Industry 2014 Year in Review and 2015 Look Forward, LEXOLOGY (Feb. 27, 2015), http://www.lexology.com/library/detail.aspx?g=e7167734-9e77-4e72-acdf-bee2cb3d0bec.

118

SeeRobinson Twp. v. Commonwealth, 52 A.3d 463, 482-85 (Pa. 2012).

119

Deep Injection Wells: How Drilling Waste is Disposed Underground, NPR, http://stateimpact.npr.org/pennsylvania/tag/deepinjection-well/ (last visited on Mar. 6, 2016).

120

Letter from Jane Diamond, Dir., Water Div., U.S. Envtl. Prot. Agency, to Jonathan Bishop, Chief Deputy Dir., Cal. State Water Res. Control Bd., & Steven Bohlen, Oil and Gas Supervisor, Cal. Dept. of Conservation (Dec. 22, 2014), ftp://ftp.consrv.ca.gov/pub/oil/ UIC%20Files/CA%20Class%C20II%20UIC % 20letter%20December%C2022%202014.docx.pdf.

121

See Gaba, supra note 7, at 317-18.

122

See Carrie Blackmore Smith, Will Ohio River Carry Fracking Waste?, COURIER-JOURNAL (Jan. 16, 2014, 12:00 AM), http://www.courier-journal.com/story/money/2014/01/16/will-ohio-river-carry-fracking-waste/4521683/; see GreenHunter Resources Declares Monthly Cash Dividend, supra note 37.

123

Willis, supra note 7 (explaining how the Coast Guard prohibited only fracking waste from horizontal drilling, but not waste from vertical drilling, when even GreenHunter does not distinguish between the two, thus allowing GreenHunter to continue barging the wastewater using that ambiguity as grounds.)

124

Wiseman, supra note 6, at 115, 117, 186-91 (using the term “fracing” to refer to hydraulic fracturing).

125

See supra text accompanying notes 96-98.

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126

State of Wyoming Joins Independent Producers in Opposition to Federal Hydraulic Fracturing Rule, BAKERHOSTETLER (Mar. 26, 2015), http://www.bakerlaw.com/press/state-of-wyoming-joins-independent-producers-in-opposition-to-federal-hydraulicfracturing-rule?.

127

David B. Spence, Federalism, Regulatory Lags, and the Political Economy of Energy Production, 161 U. PA. L. REV. 431, 495 (2013).

128

Hannah J. Wiseman, Governing Fracking from the Ground Up, 93 TEX. L. REV. SEE ALSO 29, 41-42 (2015).

129

Spence, supra note 127, at 495-96.

130

Press Release, Levy Phillips & Konigsberg, LLP, Illegally Dumping 100 Million Pounds of Toxic Coal Ash Waste Onto a Pristine Dominican Republic Beach, U.S. Power Corporation Created a Genetic Time Bomb, Mass Tort Complaint Alleges in First-of-its-Kind Lawsuit (Nov. 6, 2009), http://www.prnewswire.com/news-releases/illegally-dumping-100-million-pounds-of-toxic-coal-ash-waste-onto-a-pristinedominican-republic-beach-us-power-corporation-created-a-genetic-time-bomb-mass-tort-complaint-alleges-in-first-of-its-kindlawsuit-69366287.html.

131

Id.; Pallano v. AES Corp., C.A.NOS. N09C-11-021 JRJ, N10C-04-054 JRJ, 2011 WL 2803365, at *1, *2, *15 (Del. Super. Ct. July 15, 2011) (discussing how the plaintiffs appeared to have survived summary judgment).

132

Mason, supra note 97 (noting how ALEC is already working to overturn the local ban in Denton, Texas).

133

Wiseman, supra note 128, at 39-40.

134

Mason, supra note 97.

135

Wiseman, supra note 128, at 40-41.

136

Id.

137

Id. at 41 (noting that migratory birds are attracted to open oil and gas waste pits and often die after landing in them). Logically, if birds are visually attracted to oil and gas waste pits, a risk exists that they would similarly be more attracted to bodies of water that are contaminated with oil and gas, like fracking wastewater, than to unpolluted bodies of water.; United States v. CITGO Petroleum Corp., 801 F.3d 477, 494 (5th Cir. 2015) (holding that a “taking” of migratory birds, within meaning MBTA, is limited to deliberate acts done directly and intentionally to migratory birds).

138

Michael Burger, Response, Fracking and Federalism Choice, 161 U. PA. L. REV. ONLINE 150, 161 (2013).

139

See Kathleen Sutcliffe, Goldman Prizewinner Helen Slottje: The Secret Weapon in the Fight Against Fracking, EARTHJUSTICE (Apr. 30, 2014), http://earthjustice.org/blog/2014-april/goldman-prizewinner-helen-slottje-the-secret-weapon-in-the-fight-againstfracking (profiling New York attorney whose strategy was credited with inspiring more than 170 New York communities to adopt fracking bans).

140

Kavouras et al., supra note 117 (noting that neither state is believed to have significant gas resources worthy of extraction).

141

See Caniglia, supra note 48.

142

Kavouras et al., supra note 117.

143

Wiseman, supra note 128, at 42.

144

Letter from Ohio Envtl. Prot. Agency to Facility Operator (Nov. 17, 2014), http://www.epa.state.oh.us/Portals/0/Drilling%20Waste %20Ltr.pdf.

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145

PIELC 2015 Keynote 5, supra note 101.

146

SPACE: 1999, IMDB, http://www.imdb.com/title/tt0072564/ (last visited Mar. 6, 2016) (demonstrating how a fictional plan to dispose of nuclear waste on the Moon goes awry when the waste causes the Moon to leave Earth's orbit).

147

About NRC, U.S. NRC, http://www.nrc.gov/about-nrc.html (last visited Mar. 6, 2016).

148

Id.

149

Locations, U.S. NRC, http://www.nrc.gov/about-nrc/locations.html (last visited Mar. 6, 2016).

150

See Fracking Across the United States, EARTHJUSTICE http://earthjustice.org/features/campaigns/fracking-across-the-unitedstates (last visited Mar. 6, 2016) (referring to fracking accidents as “fraccidents”).

151

See supra text accompanying notes 43-55.

152

Locations, supra note 149.

153

See The Commission, U.S. NRC, http://www.nrc.gov/aboutnrc/organization/commfuncdesc.html (last visited Mar. 6, 2016).

154

Hari M. Osofsky & Hannah J. Wiseman, Dynamic Energy Federalism, 72 MD. L. REV. 773, 840 (2013) (acknowledging the risk of agency capture, but surprisingly arguing that it could be limited by increased oversight, in order to enable even more involvement by private stakeholders within regulatory structures).

155

MARY CHRISTINA WOOD, NATURE'S TRUST: ENVIRONMENTAL LAW FOR A NEW ECOLOGICAL AGE 50 (2014).

156

Burger, supra note 138, at 157.

157

SeeWOOD, supra note 155, at 85 for an explanation about how President George W. Bush appointed a former lobbyist for industrial polluters, James Connaughton, as chairman of the Council on Environmental Quality. After serving in that position from 2001-2009, Connaughton became executive vice president of Constellation Energy. Id.

158

SeeJACK MASKELL, CONG. RESEARCH SERV., POST-EMPLOYMENT, “REVOLVING DOOR,” LAWS FOR FEDERAL PERSONNEL (2010), https://www.fas.org/sgp/crs/misc/97-875.pdf.

159

WOOD, supra note 155, at 255-57.

160

Alec L. ex rel. Loorz v. McCarthy, 135 S. Ct. 774 (2014) (denying petition for writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit). Our Children's Trust, the same legal non-profit that filed that case, filed another federal complaint with a similar objective on August 12, 2015. Complaint, Juliana v. United States, No. 6:15-cv-01517-TC (D. Or. Aug. 12, 2015), http://ourchildrenstrust.org/sites/default/files/15.08.12YouthComplaintAgainstUS.pdf.

161

WOOD, supra note 155, at 120.

162

Endangered Species Act, 16 U.S.C. §§ 1531-1544 (2013).

163

Tennessee Valley Auth. v. Hill, 437 U.S. 153, 173 (1978) (quoting 16 U.S.C. § 1536 (1976)).

164

Cheren, supra note 98, at 1492.

165

Alexander T. Maur, Let's Not Frack This Up: State-Based Solutions for the Regulation of Hydraulic Fracturing and the Disposal of Flowback Water, 48 SUFFOLK U. L. REV. 151, 169 (2015).

166

Frances Beinecke, Calling for National Fracking Standards and Empowering Local Communities, NAT'L RES. DEF. COUNCIL: SWITCHBOARD (Aug. 30, 2012), http://switchboard.nrdc.org/blogs/fbeinecke/calling_for_national_fracking.html.

37 WTLR 87

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End of Document

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© 2016 Thomson Reuters. No claim to original U.S. Government Works.

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