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Diarist's Note:   This is the second in what will be a series of diaries to address the Gasland conflation/fabrication bubble and to give notice to both Democrats and environmental/conservation organizations that Gasland is not a reliable source of information for making decisions about the oil and gas industry.  The #2 refers to the second in the diary series and is not intended to refer to the Gasland II movie.  


My colleagues in the environmental movement are fond of showing the Gasland video products to citizens and claiming to use the movies as "educational" tools.   The problem with Gasland is that it is entertainment that actually is "science denial" and thus not fitting as an educational documentary or journalism.

Gasland does on the left on hydraulic fracturing what ExxonMobil does on the right with climate science denial.

Gasland is out to deny that hydraulic fracturing of oil and gas wells can ever be carried out safely and to promote that position as widely as possible to the general public.  As Josh Fox insisted in his recent appearance on the Daily Show, the oil and gas industry uses "fatally flawed engineering" in the United States' oil and natural gas wells and that nothing about hydraulic fracturing can be fixed to make it acceptable in the view of Gasland.   By doing so Josh Fox/Gasland denies the validity of the sciences of petroleum and natural gas process engineering, geology, geological engineering and hydrology (including risk assessment and safety analysis carried out using these scientific disciplines) and denies the engineering and scientific determinations of organizations like the U.S. Department of Energy.

The first diary in this series discussed how Josh Fox/Gasland made a false claim that the Society of Petroleum Engineers made a determination that 35% of the world's oil and gas wells were leaking.  

This diary is to confront two specific Josh Fox/Gasland fabrications......starting at 5:15 in Gasland:


“What I didn’t know was that the 2005 energy bill pushed through Congress by Dick Cheney exempts the oil and natural gas industries from the Safe Drinking Water Act.  They were also exempt from the Clean Air Act, the  
Clean Water Act, the Superfund law, and about a dozen other environmental and Democratic regulations.”
Taken as a whole the Josh Fox claim is erroneous and misleading.   This diary attempts to explain why those Gasland claims are erroneous for two specific points articulated by Fox and widely believed as true in 'anti-fracking camp' and in the environmental movement nationally  --  that the oil and gas industry [and specifically including hydraulic fracturing] is exempt from the Federal Clean Air Act and the Clean Water Act.

Federal Clean Air Act

First, here is the actual truth of the matter  --- while Dick Cheney ought to be tried as a war criminal, Dick Cheney didn't do any harm to the Federal Clean Air Act because there is no "Halliburton Loophole" statutory law amendment of the Clean Air Act contained in the Energy Policy Act of 2005;  you can read it here for yourself.

Because I've been tracking Congressional action on the Federal Clean Air Act for the last 37 years I can tell you with 100% certainty that the Federal Clean Air Act has never been amended to incorporate a categorical oil and gas industry exemption from the fundamental jurisdictional requirements of the Act.   Josh Fox's claim that the oil and gas industry has some sort of categorical exemption from regulation and that hydraulic fracturing and other oil and gas industry process equipment and facilities are exempted from regulation under the Federal Clean Air Act is fabrication and erroneous conflation.  

The Federal Clean Air Act affords U.S. EPA full jurisdiction over emissions from the oil and gas industry.   This statutory jurisdiction takes place both directly and through the states through development of federally approved and federally enforceable state implementation plans under Section 110 of the Clean Air Act.   This jurisdiction over emissions from the oil and gas industry covers petroleum refineries, pipelines, bulk terminals, natural gas processing plants, natural gas liquids plants and individual oil and gas well site process equipment and fugitives.  All of these oil and gas industry processes are subject to state implementation plan emission rules and federally enforceable requirements covering such things as Title V Operating Permits and federally enforceable requirements for new and modified source review.  

The only specific exemption at all contained in the Clean Air Act for the oil and gas industry is a minor exemption that limits aggregating certain oil and gas process equipment for purposes of hazardous air pollutant source characterization and HAP source permitting purposes.  See 42 U.S.C. Sec. 7412(n)(4).   I'll discuss this particular provision in the next diary in the series because it is germane to a discussion of the proposed BREATHE Act....subject of the next diary.   The important takeaway is that HAP emissions from such facilities are still limited by effective controls of what are called 'criteria pollutants' from oil and gas facilities under the act unaffected by this HAP exemption.

If the oil and gas industry were exempt from the Federal Clean Air Act as Fox/Gasland claims, there is no way that U.S. EPA could ever take these actions or this recent action in North Dakota.  

Federal Clean Water Act

Contrary to Gasland claims, there is no exemption contained in the Federal Clean Water Act that is a categorical exemption of the oil and gas industry from jurisdiction under the Act for hydraulic fracturing process wastewater.....another Gasland falsehood.

If Gasland were correct that the the oil and gas industry was exempted from the Clean Water Act, U.S. EPA would have no authority, for example, to publish these regulations binding on effluent control for  the oil and gas industry.

Nothing about Dick Cheney's Energy Policy Act changed anything at all about permit requirements binding on the oil and gas industry for discharges of hydraulic fracturing fluid or produced flow-back process wastewater to surface waters of the U.S.   The Clean Water Act requires that oil/gas operators are not allowed to discharge hydraulic fracturing fluids or produced process wastewater flow-back to surface waters of the United States without a permit.   Any such discharge of such process wastewater from an oil/gas facility without a permit is, and always has been, a serious Clean Water Act violation before and after Gasland.

The Clean Water Act has long had a provision exempting the oil and gas industry from the requirement for an industrial site stormwater permit.   The 2005 Energy bill increased the scope of this exemption to cover construction activities at oil and gas well sites.  However, this exemption for stormwater has nothing to do with a discharge of process wastewater in the form of hydraulic fracturing fluids or produced flow-back process wastewater.   An oil and gas facility cannot allow a surface water discharge of process wastewater to occur and then somehow claim that it is covered by the stormwater exemption -- such a discharge is not covered in this manner.


The next diary in this series will deal with the BREATHE Act and how it will lead to a nationwide deregulation of hydrogen sulfide emissions from all industrial source categories, including kraft pulp and paper mills, petroleum refineries and other hydrogen sulfide emission sources.


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Originally posted to LakeSuperior on Sun Jul 07, 2013 at 09:58 AM PDT.

Also republished by Climate Hawks.

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