Empower States Act ensures development, environmental stewardship

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The Dickinson Press ran an editorial Sunday discussing the Empower States Act, which I introduced last week in the U.S. Senate. I appreciate this opportunity to provide Press readers with additional details about the bill.

The Empower States Act will help to ensure that a state retains the right to manage hydraulic fracturing and gives it the ability to respond first to any violation.

Our bill takes a states-first approach because individual states are the first and best responders to oil and gas issues. They know their land, their geology and their water resources and have a primary stake in protecting their environment and their citizens. States like North Dakota have been successful in developing oil and gas production with good environmental stewardship.

At the same time, our bill provides for a safety net that allows the Environmental Protection Agency to step in if there is a danger to health or the environment. It keeps in place the EPA’s minimum standards for all states, and those minimum standards provide uniform regulation between and among states.

The reality is the EPA has already given 33 states, including North Dakota, primacy of the Underground Injection Control Program (UIC), the technical term for hydraulic fracturing.

The program requirements were developed by the EPA and designed to be adopted by states, territories and tribes, which can submit an application to the EPA to obtain primary enforcement responsibility. State or tribal agencies that have been granted this authority can oversee the fracking activities in their jurisdictions.

That doesn’t mean the EPA no longer has a role. The EPA requires a state to have minimum requirements to prevent underground injection that endangers drinking water sources. This includes inspecting, monitoring, recordkeeping and reporting requirements. The bill actually changes nothing concerning which government entity is in charge of the regulation and oversight of wells, pipelines and groundwater, a protocol that has been in existence for 30 years. Further, all states are still subject to the provisions of the Safe Drinking Water Act.

What the bill does do is gives the states and tribes more certainty about in what circumstances the EPA may withdraw or amend a state’s UIC program. The bill ensures that if the EPA does decide to intervene, it must show its action is necessary, which is a reasonable requirement.

The bill also requires federal agencies to consult with the state or reservation that will be affected by any new regulation before, not after, any new federal regulation is proposed.

It must also take a broader look at any effects a regulation may have on a range of important factors, including the energy supply, any shortfalls in supply and the potential loss of jobs. It must also consider potential losses to a state’s or tribe’s general and educational funds, which often benefit from oil tax revenues.

Finally, our legislation allows a state or tribe to appeal a rule in a federal court located within the state or the District of Columbia, and requires the court to review all evidence, not just the EPA’s findings, when a rule is contested.

In short, our legislation recognizes that states have a long record of effectively regulating oil and gas development, including hydraulic fracturing, with good environmental stewardship, and it works to make sure that the rules for hydraulic fracturing are certain, effective and fair.

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