The Fuse

Clinton Overestimates Presidential Authority in Comments on Fracking

by Leslie Hayward | March 07, 2016

At last night’s Presidential debate, Democratic candidates Hillary Clinton and Bernie Sanders squared off over the practice of hydraulic fracturing, touching on how they believe the practice should be managed. Clinton’s recent comments suggested an anti-fracking approach that is not only generally inconsistent with her previous statements, but also doesn’t align with the authority of the executive branch.

When asked, “Do you support fracking?” Clinton said, “I don’t support it when any locality or any state is against it, number one. I don’t support it when the release of methane or contamination of water is present. I don’t support it, number three, unless we can require that anybody who fracks has to tell us exactly what chemicals they are using. By the time we get through all of my conditions, I do not think there will be many places in America where fracking will continue to take place.”

Sanders was more direct, stating, “My answer is a lot shorter. No. I do not support fracking.”

Book: “It was odd that Clinton talked about municipal bans. Current law would appear to afford Secretary Clinton little direct role in mediating disputes between municipalities and their state-level legislative and regulatory entities.

Neither of their comments addressed the limitations in presidential authority over fracking. In particular, Clinton’s assertions about municipal bans likely don’t hold water. Kevin Book of ClearView Energy Partners tells The Fuse, “It was odd that Clinton talked about municipal bans. Current law would appear to afford Secretary Clinton little direct role in mediating disputes between municipalities and their state-level legislative and regulatory entities. Air and water standards do reach onto private lands—but implementation of CAA and CWA standards under cooperative federalism usually allocates enforcement responsibilities to state entities. States that overrule their municipalities are likely to fight back against a federal government that tries to overrule them.”

That’s not to say that the presidency can’t impose additional fracking regulations. According to ClearView, “frack attacks” come in three waves. The first is federal regulation, over which the next president will have some statutory authority to impose regulations through the Clean Air Act, the Clean Water Act, and the Safe Drinking Water Act, among others. The second is state level regulation, some of which is geared towards staving off federal incursion into local economic franchises. The third is the “ground war,” and consists of “community activism through bans, setbacks and other de-facto prohibitions.”

Book continued, “If Clinton wanted to get into the municipal ground war, she might attempt to do so by either proposing new regulations as a ‘backstop’ to state law, or by urging Congress to confer new backstop authority to the EPA.” On the former, Book added that imposing such regulations could be a difficult task given the judicial history of the BLM fracking rule, while the latter would face heady opposition from Republican leadership in the House of Representatives.

Book’s assessment is echoed by Peter Whitfield, an attorney focusing on natural resources and energy law at Baker Hostetler:

“States are the ones with the authority to regulate fracking. Whether a political subdivision of the state (city, county, or other municipality) has regulatory authority is more of a state specific question,” says Whitfield. “Some states reserve to the state the exclusive authority to regulate fracking, and so if a county, city, or township passes a ban, the state can step in and say, ‘What you’ve done is unlawful’ and override it. In other states, the issue may not be as clear because a state constitution or state law may permit local governments to regulate fracking. In terms of whether or not the president can step in, the law is pretty clear that the president cannot unilaterally override state law.  Under the current regulatory regime, the federal government has conceded authority to regulate fracking to the states.”

According to attorney Mark Barron, also of BakerHostetler, “The only place where the federal government might have the authority to regulate would be on federal lands. In 2005, when Congress passed the Energy Policy Act, it removed federal regulatory authority over hydraulic fracturing. Theoretically, Congress could go back and re-insert that authority on federal lands, but as it stands right now there certainly wouldn’t be federal regulatory authority on state and private lands at any time under any scenario.”

Per Clinton’s comments about regulating chemical disclosures, the executive branch does have some authority through the Toxic Substances Control Act, although such rules have not been implemented yet.

In March of last year, the Obama administration announced tighter rules for hydraulic fracturing on federal land through the Department of Interior, which were lambasted by industry and later blocked by a federal judge in Wyoming in September. According to federal data, the lands impacted by the new rules account for 11 percent of the natural gas consumed in the U.S. and 5 percent of the oil.

A video was posted on Friday by environmental group 350 Action in which Clinton appears to be quoted as saying that ending the practice of fracking on federal lands is a “done deal,” if she is elected.

A video was posted on Friday by environmental group 350 Action in which Clinton appears to be quoted as saying that ending the practice of fracking on federal lands is a “done deal,” if she is elected.

But is Clinton’s threat credible? “I think not.  That seems like a hard promise to keep, even for future development” says Whitfield. “She could not halt existing operations without incurring significant liability.”

Barron adds, “In BML’s rule to govern hydraulic fracturing on federal lands, they acknowledge that more than 90 percent of wells on federal lands are hydraulically fractured. So it should be understood that a ban on hydraulic fracturing is akin to banning oil and gas development.”

Clinton’s statements, as well as her comments during the debate, suggest a significant pivot in positioning on the issue of domestic oil and gas production through fracking. In the past, she has supported legislation that would seek to reduce American oil imports, and described OPEC as a “monopoly cartel.”

The language on her own website is favorable to natural gas production, with a factsheet stating that “Domestically produced natural gas can play an important role in the transition to a clean energy economy, creating good paying jobs and careers, lowering energy costs for American families and businesses, and reducing air pollution that disproportionately impacts low income communities and communities of color.” However, the factsheet also states, “Putting in place new safeguards and raising labor standards, Clinton will ensure safe and responsible natural gas production as we move towards a clean energy future.”

As Secretary of State, Clinton encouraged fracking in Eastern Europe and elsewhere around the globe as a boon to energy security for American allies.