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What the Frack? Hydraulic Fracturing Companies Exempt from Public Health Laws

When it comes to protecting the public’s health - and drinking water supply - the 1970s' Safe Drinking Water Act is bedrock legislation. But a 2005 provision in another law enables hydraulic fracturing companies to drill a hole right through it. The exemption is known as the Halliburton Loophole.

When it comes to protecting the public's health, the Safe Drinking Water Act is bedrock legislation.  Since 1974, the Act has provided the foundation for the Federal government's ability to regulate the safety of the drinking water supply.  A provision in the Energy Policy Act of 2005, however, enables hydraulic fracturing companies to drill a hole through this bedrock (both symbolically and literally), make a 90 degree turn, and pump the earth full of dangerous but conveniently undisclosed chemicals.

The provision has been deemed the "Halliburton Loophole" and exempts hydraulic fracturing (or "fracking") practices from regulations under the Safe Drinking Water Act. This circumventing of integral public health legislation gets its name from the man who inserted the exemption into the bill—then-Vice President Dick Cheney, formerly an executive at Halliburton, the energy company credited with inventing the practice (click here to view how it works).

In addition to being unethical, collusion on such an exemption poses a major threat to the public's health.

Evidence on the adverse effects of natural gas drilling is quickly mounting, but still "inconclusive" according to some.  The chemicals used in hydraulic fracturing, however, are extremely toxic—this much we know to be true.

A federal report prepared for the U.S. House Committee on Energy and Commerce concluded that chemicals used in hydraulic fracturing contain 750 different compounds, more than 650 of which are known or suspected carcinogens (e.g., benzene) or highly toxic (e.g., lead).  Another study found that 75% of such chemicals have been shown to affect sensory organs while 40-50% affect the brain, nervous, immune, and cardiovascular systems.

Since the precise combination of chemicals used in hydraulic fracturing varies by company and location, so does the level of toxicity and health risk.  The Halliburton Loophole allows fracking companies not to disclose the chemicals they use—as they would be required to do if they were subject to regulations under the Safe Drinking Water Act.

What is the public health rationale for energy companies disclosing their chemical formulas?  Let me offer three reasons.

  1. Communities have the right to know what is going on beneath their backyards.  If a company is using a chemical that may cause birth defects (e.g., benzene), an expectant mother has the right to this information before deciding whether or not to move into the neighborhood.

  2. Such information is needed to save lives in a public health emergency. In the event of a hydraulic fracturing disaster, an effective public health response, and the safety of first responders, is contingent upon knowing what chemicals are involved.  As the legislation currently stands, fracking companies could keep this information a "trade secret" while people perish. Every engineered system has a failure rate.  With an estimated 60,000 hydraulic fracturing wells to be drilled in the Marcellus Shale over the next 20 years, it's a matter of when, not if, a public health emergency will occur.

  3. Such information is part and parcel of sound research on the effects of hydraulic fracturing on human health.  It's challenging to demonstrate the causal effects when we don't know what chemicals are being pumped into the ground, and thus what people might be exposed to. The Halliburton Loophole creates a Catch 22 scenario where quality research holds the most promise to close it— but the loophole itself inhibits such research from being conducted.

So, what to do? The Fracturing Responsibility and Awareness of Chemicals (FRAC) Act provides some hope.  Introduced by U.S. Sen. Bob Casey of Pennsylvania in 2009, and reintroduced in 2011, the FRAC Act would close the Halliburton Loophole.  Not surprisingly, companies that engage in hydraulic fracturing practices are opposed to such legislation.  States can also force fracking companies to disclose the chemicals they use, as does Pennsylvania and a handful of others.

What do you think?  Should hydraulic fracturing companies be required to publically disclose the chemicals this use?  Answer our online poll and let us know what you think.

Read more about The Public's Health.