Illinois’ fracking law model for other states, best packaged compromise to safeguard drilling frenzy

   Business and industry leaders are hailing the passage of Illinois’ fracking law as a model for the rest of the nation to emulate. Environmental groups say the compromise legislation was a compromise since a moratorium wasn’t achievable.
   On June 17th, Gov. Pat Quinn signed into law SB 1715, legislation that secures protections associated with high-volume, horizontal drilling known as fracturing or fracking. The process of extracting natural gas from shale reservoir formations, which has been around since the 1950s, has gained great momentum the past year or two but had been unregulated. Because Southern Illinois sits atop a good portion of the New Albany Shale formation, fracking was already drawing scores of landowners, drillers and investors to the state for a piece of the action. Experts estimate the state could be home to as many as eight trillion cubic feet of natural gas reserves.
   Given this scenario, Illinois legislators grappled over the past two years to carve out an agreeable bill to satisfy the oil and gas industry, environmentalists and both political parties – one that would give citizens a proactive voice in the process, particularly concerning potential threats to surface and groundwater contamination.
   Co-sponsor and State Sen. Michael Frerichs (D-Champaign), who teamed with Rep. John Bradley (D-Marion)on the bill, says SB 1715 represents the most comprehensive set of fracking regulations yet among any of the U.S. states and includes staunch protections for surface and groundwater quality. “I’m proud to say these are the strongest, most effective drilling safeguards enacted by any state in the nation,” Frerichs said.
   U.S. Rep. John Shimkus, a member of the U.S. House Energy and Commerce Committee, says Illinois’ new fracking law spells progress in an effort to empower states with the ability to balance the interests and needs of business and industry while protecting citizens and the environment, rather than asking the US EPA to intervene and exert its authority. “We’re always seeking to make the argument here in Washington that the states are well qualified to strike that balance on their own and to be accountable to their communities without the EPA stepping in,” said Shimkus. “This is really a market-driven opportunity. If you involve the EPA and create additional layers of cost and liability, the individuals who are raising the capital to explore, identify and recover these natural resources are going to go elsewhere. It’s a fine balance, but it’s one that the states are capable of achieving,” he added.
Ann Alexander, senior attorney, Midwest program, Natural Resources Defense Council, was one of the four individuals from the environmental coalition who participated in negotiations on the fracking legislation in Springfield. Alexander says although the NRDC’s first choice would have been to see a complete moratorium on fracking, the final bill that was signed into law by Quinn represents a “reasonably strong compromise.”
   “We have never said this is a model bill. It does not consistently represent best practices,” said Alexander. “But it is indeed the strongest package of regulations on the books today as far as horizontal fracturing is concerned. Just because it’s the strongest yet out there doesn’t mean it represents best practices.”
   One of the strongest provisions – and one that indeed makes Illinois’ new fracking law unique to other states, says Alexander – is its citizens’ lawsuit provision. “Citizens can sue a driller, the Illinois Dept. of Natural Resources, the service provider and pretty much anyone who is in violation of the act,” Alexander said. “We consider this to be the crown jewel of the legislation. Regardless of any shortcomings, these provisions provide the opportunity for citizens to shed light on the process. These are essentially a safety hatch for the public to oversee and watchdog fracking in their communities.”
   Another provision added to the final version of the bill, says Alexander, requires operators to disclose the specific chemicals they are going to be using in the fracking process 21 days before using them. “Only two other states require this,” said Alexander. “It’s terrifically important. As a landowner, you’re going to want to know what to baseline test for those before drilling near your property begins.”
   In addition, the IDNR has to approve any secret trade labels that drillers plan to use in connection with their chemicals in the fracking process. Alexander says there is yet another requirement in SB 1715 that allows health providers to obtain this pertinent information if necessary, and share it with appropriate other persons if need be, without being constrained by a gag order.
   Bill Anaya, a partner and member of the Legislative and Public Policy Group at the law firm of Arnstein & Lehr LLP, specializes in mineral rights and environmental law. Anaya’s 30 years of experience in environmental enforcement actions and liability claims in air, water and soil provide him with a national perspective on states’ regulatory climates relative to fracking.
   “Before Illinois’ fracking law became official last month, we were a wildcat state,” Anaya said. “Fracking in Illinois had been going on since the 1950s. There are an estimated 20,000 fractured wells currently in Illinois. Now we’ve got a regulated process. It’s a really good thing. In this act (SB 1715) you will see all kinds of data – all kinds of evidence about potential receptors within the area. As to an alleged violation, the act provides for a rebuttable presumption, which means that if you can prove that there’s a fracking operation within a certain distance of water, enforcement officials may not have to prove causation. To rebut the presumption, the operator has to prove the cause of the violation has another cause, by clear and convincing evidence. With this new law, everyone gets something: the operators and the regulated community get to use evidence – not simply unsupported anecdotes, which makes preparing the administrative record in this new, regulated program critical. That’s huge. That’s what makes Illinois different than every other state out there,” he added.
   Ohio, Pennsylvania and to a lesser extent Indiana and Rhode Island, according to Anaya, are semi-regulated states in terms of fracking laws on the books at this time. “But Illinois is the only state with legislation that has provisions for data gathering,” he said.
   With regard to the environmental lobby for a moratorium on fracking, Anaya says it was not a realistic position. “Remember, fracking has been going on for more than 50 years but it hasn’t been profitable until recently,” he said. “It’s silly to suggest that the Illinois General Assembly was ever going to enact a moratorium for a process that was going on for half a century and has finally begun to become extremely profitable and has the potential of being a economic engine and jobs creator for the state. Legislators did their jobs and wrote a tight, good bill. It’s also a bill that says, ‘Operators, come to Illinois, but please bring good science, sound engineering and your checkbooks, too.’ It’s remarkably good politics.”
   Alexander says those who suggested that the passage of SB 1715 was a “green light” for the fracking industry in Illinois were wrong, since fracking was completely legal in Illinois before the legislation was passed.
   “It was really frustrating to hear people saying that this legislation would ‘green light’ fracking in Illinois,” Alexander said. “The reality was that the lights were already blazing green. Before this law was enacted in June, the IDNR was required to grant a fracking permit within 48 hours to anyone who plunked down $100 and a detail-free application that was as easy to get as a dog license. It was a slender threat and it was untenable. It was critical that Illinois pass this legislation, not to ‘green light’ fracking, but to establish some rules of the road.”