On July 25, 2013, the U.S. House of Representatives’ Subcommittee on Energy and Mineral Resources held a hearing on the proposed “Protecting States’ Rights to Promote American Energy Security Act” (H.R. 2728), one week after the act was introduced by Representative Bill Flores (R-Texas).

This proposed act would require the Department of the Interior to defer to state regulations, permitting, and guidance relating to hydraulic fracturing on federal lands within the state’s boundaries.
Testimony from representatives of the Alaska Oil and Gas Conservation Commission, the Texas Railroad Commission, and Utah’s Division of Oil, Gas and Mining expressed their support for the legislation, with each indicating that his/her state has done extremely well in regulating oil and gas exploration, development, and production and protecting the environment from operations such as hydraulic fracturing. 
Christi Craddick, the Commissioner for the Texas Railroad Commission, stated that “Texas has successfully regulated oil and gas production for almost 100 years and knows better than the federal government how to both serve and protect the unique interest of our state.” 
As for protecting ground water from hydraulic fracturing contamination, Ms. Craddick and Ms. Cathy P. Foerster from Alaska testified that neither state had documented instances of subsurface damage to underground sources of drinking water. 
The state representatives saw no need for “duplicative regulation of an already stringently regulated process” and that the “one size fits all” federal regulation mentality does not take into consideration each state’s unique geology, hydrology, and production issues. 
Speaking against the proposed act was Ms. Lois N. Epstein, with The Wilderness Society in Anchorage, Alaska, who stated that “it is essential that the federal government ensure adequate regulations [i.e., a baseline for hydraulic fracturing] are in place for industrial activities occurring on lands that it manages while providing states with the ability to exceed those requirements or to address atypical conditions.” Ms. Epstein saw the act as unconstitutional under the Supremacy Clause whereby state law is preempted to the extent it conflicts with federal law.
In addition to expressing her support for the act, Ms. Foerster addressed what she considered were “several misperceptions” expressed by Secretary of the Interior Sally Jewell in a hearing held on July 17, 2013
According to Ms. Forester. Secretary Jewell gave the “perception no national standard exists for hydraulic fracturing, that some states regulate properly but others use 30-year old technology, and that states that are just starting to deal with hydraulic fracturing have no place to go for help in establishing appropriate regulations.” 
Ms. Foerster pointed to the Interstate Oil and Gas Compact Commission (IOGCC) and STRONGER (State Review of Oil and Natural Gas Environment Regulations) as two groups who provide base sets of guidelines on a variety of oil and gas operations, including hydraulic fracturing, that assist states in setting standards for environmental protection consistent with the varying engineering and geologic needs of each state. 
These groups meet several times each year to ensure that their guidelines are up-to-date.


This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright’s Energy Practice Group.