	Introduction

Hydraulic fracturing is a technique used to recover oil and natural gas from underground low permeability rock formations. The technique has been the subject of controversy because of the potential effects that hydraulic fracturing and related oil and gas production activities may have on the environment and health. On August 16, 2012, EPA issued new regulations covering, among other things, emissions of volatile organic compounds (VOCs) from onshore natural gas hydraulic fracturing operations. Resource Conservation and Recovery Act62

Federal and state authorities to regulate wastes are established under the Solid Waste Disposal Act of 1965, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA). Although the sites at which hydraulic fracturing is conducted may not fit the typical mold of Superfund sites, it is possible that hydraulic fracturing operations could result in the release of hazardous substances into the environment at or under the surface in a manner that may endanger public health or the environment. If a release were to occur as a result of hydraulic fracturing, the facility owner and operator and other potentially responsible parties could face liability under CERCLA. CERCLA defines a federally permitted release to include any underground injection of fluids authorized under the Safe Drinking Water Act, any discharges of wastewater authorized under the Clean Water Act, and other discharges or emissions authorized under certain other federal statutes. National Environmental Policy Act111

The National Environmental Policy Act (NEPA) requires federal agencies to consider the potential environmental consequences of proposed federal actions and to involve the public in the federal decisionmaking process, but does not compel agencies to choose a particular course of action. Because the requirements of NEPA apply only to federal actions, NEPA applies to hydraulic fracturing activities only when such activities take place on federal lands or when there is otherwise a sufficient federal nexus to hydraulic fracturing. Under the Emergency Planning and Community Right-to-Know Act (EPCRA), owners or operators of facilities where certain hazardous hydraulic fracturing chemicals are present above certain thresholds may have to comply with emergency planning requirements; emergency release notification obligations; and hazardous chemical storage reporting requirements. The rule would require operators that plan to employ fracking as part of an oil or natural gas drilling operation on federal or Indian land to document to BLM compliance with the following requirements:
Submit a plan with detailed information about the proposed operation, including wellbore geology, the location of faults and fractures, the depths of all usable water, estimated volume of fluid to be used, and estimated direction and length of fractures; Design and implement a casing and cementing program that follows best practices and meets performance standards to protect and isolate usable water, monitor the cementing operations during well construction, and take remedial action if there are indications that the cementing is inadequate; Perform a successful Mechanical Integrity Test prior to the fracking operation; Monitor well pressure during the fracking operation and cease operations if it exceeds 500 pounds per square inch; Manage the recovered "flowback" fluids in above-ground storage tanks that meet certain specifications; and Disclose the chemicals used in the fracking operation to the BLM and to the public (with limited exceptions for trade secrets as demonstrated through an affidavit). The Tenth Circuit's decision on this matter will set an important precedent with respect to the federal government's ability to regulate hydraulic fracturing and potentially other environmental concerns related to oil and natural gas exploration and production on federal lands. Conclusion

Environmental statutes enforced by EPA contain several key exemptions for hydraulic fracturing and related oil and gas production activities. For example, an amendment to the SDWA passed as a part of the Energy Policy Act of 2005 clarified that the underground injection control requirements found in the SDWA do not apply to hydraulic fracturing, although the exclusion does not extend to the use of diesel fuel in hydraulic fracturing operations. In September 2010, an environmental advocacy group filed a petition seeking to have EPA regulate drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal energy as hazardous waste under Subtitle C of RCRA. In August 2011, environmental advocacy organizations petitioned EPA to promulgate rules under Section 4 and Section 8 of TSCA for chemical substances and mixtures used in oil and gas exploration or production. Regulation of hydraulic fracturing by local governments has raised questions about state preemption of municipal land use and zoning powers. Although this litigation is still in its early stages, it appears that courts have already faced questions about causation; whether hydraulic fracturing is an abnormally dangerous activity; and whether hydraulic fracturing may constitute a subsurface trespass to land.
Hydraulic fracturing is a technique used to recover oil and natural gas from underground low permeability rock formations, such as shales and other unconventional formations. Its use along with horizontal drilling has been responsible for an increase in estimated U.S. oil and natural gas reserves. Hydraulic fracturing and related oil and gas production activities have been controversial because of their potential effects on public health and the environment. Several environmental statutes have implications for the regulation of hydraulic fracturing by the federal government and states.
An amendment to the Safe Drinking Water Act (SDWA) passed as a part of the Energy Policy Act of 2005 (EPAct 2005) clarified that the Underground Injection Control (UIC) requirements found in the SDWA do not apply to hydraulic fracturing, although the exclusion does not extend to the use of diesel fuel in hydraulic fracturing operations. The underground injection of wastewater generated during oil and gas production (including hydraulic fracturing) does require a UIC permit under the SDWA, as do injections for enhanced oil and gas recovery operations. Under the Clean Water Act (CWA), parties seeking to discharge produced water may have to apply for a permit under the National Pollutant Discharge Elimination System. Under the Clean Air Act (CAA), the Environmental Protection Agency (EPA) has issued new rules covering emissions of volatile organic compounds from hydraulic fracturing operations.
Provisions of the Resource Conservation and Recovery Act (RCRA) exempt drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal energy from regulation as hazardous wastes under Subtitle C of RCRA. However, these wastes are subject to other federal laws (such as the SDWA and the CWA), as well as to state requirements. Facility owners and operators and other potentially responsible parties could potentially face liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for cleanup costs, natural resource damages, and the costs of federal public health studies, if hydraulic fracturing results in the release of hazardous substances at or under the surface in a manner that may endanger public health or the environment.
The National Environmental Policy Act (NEPA) requires federal agencies to consider the environmental impacts of proposed federal actions before proceeding with them. An agency would be obligated to consider the impacts of an action that involves hydraulic fracturing if that action takes place on federal lands or when there is otherwise a sufficient federal nexus to hydraulic fracturing.
Under the Emergency Planning and Community Right-to-Know Act (EPCRA), owners or operators of facilities where certain hazardous hydraulic fracturing chemicals are present above certain thresholds may have to comply with emergency planning requirements; emergency release notification obligations; and hazardous chemical storage reporting requirements. In August 2011, environmental groups petitioned EPA to promulgate rules under the Toxic Substances Control Act (TSCA) for chemical substances and mixtures used in oil and gas exploration or production.
While the federal government's oversight of hydraulic fracturing generally is limited to protection of the environment and public health pursuant to the aforementioned statutes, it does have some authority to regulate oil and natural gas exploration and production on federal lands. Whether this authority extends to particular regulations governing hydraulic fracturing is currently in dispute. The Bureau of Land Management published a rule on hydraulic fracturing on federal and Indian lands in March 2015; however, the rule was struck down by a U.S. District Court in June 2016. The matter is currently on appeal.
At the state level, hydraulic fracturing tort litigation has raised questions about causation; whether hydraulic fracturing is an abnormally dangerous activity; and whether hydraulic fracturing may constitute a subsurface trespass to land. Also, several municipalities have attempted to ban hydraulic fracturing through zoning restrictions and other local laws, creating potential conflicts with oil and gas industry regulation at the state level.