Oil prices are spiking following the attacks this weekend that disrupted about half of Saudi Arabia’s oil capacity. That accounts for about 5% of the daily global oil supply, and is the biggest oil disruption in history.
The market reaction would likely have been much greater were it not for the substantial increase in US crude production over the past decade. From 2008 to 2018, US crude oil production more than doubled, from 5 million barrels a day to almost 11 million barrels a day, according to the Energy Information Agency.
Much of that increase has been the result of hydraulic fracturing, or fracking. By some estimates, fracked oil wells accounted for more than half of US oil production in 2018.
Many 2020 Democratic contenders support a ban on fracking. Recently, two of the top three, Sens. Bernie Sanders and Elizabeth Warren, have suggested that as president they would work to ban fracking in the US.
Beyond the market implications that such a move would have, it raises obvious political and legal questions, chief among them: Does the President actually have the authority to ban fracking?
Facts First: Without an act of Congress, the President could not issue an outright ban on fracking across the US. There are however a number of regulatory and executive actions an administration could take to prevent or shrink the use of fracking technology, particularly on federal land. The problem is that most fracking takes place on private land, and any attempts to limit it would likely face legal challenges.
On Sept. 4, Sanders wrote that “any proposal to avert the climate crisis must include a full fracking ban on public and private lands.”
Two days later, Warren struck a similar note, tweeting Sept. 6 that on day one of her presidency she would “sign an executive order that puts a total moratorium on all new fossil fuel leases for drilling offshore and on public lands. And I will ban fracking—everywhere.”
First, a few facts about fracking:
Fracking is a controversial method of drilling that involves shooting high pressure water, sand and other compounds underground to make small fractures in rock to release oil and gas. While the practice has led to a drilling boom in the US, it’s not been without controversy. Specifically, there have been questions about the effect it has on drinking water, and methane emissions, and it’s even been tied to a rise in earthquakes.
The US Geological Survey determined that a few earthquakes in Oklahoma have been linked to fracking-related practices – specifically from the disposal of wastewater – and the EPA “found scientific evidence that hydraulic fracturing activities can impact drinking water resources under some circumstances.”
That, along with rising public concern over the climate crisis, has made fracking a particular target of environmentalists and politicians.
But how far could a president go in simply banning the practice? According to experts, any efforts could present a rocky road of legal challenges.
“A President can’t unilaterally ban fracking on private lands,” says Christopher Guith, senior VP of the US Chamber of Commerce’s Global Energy Institute, “but a motivated President could embark on a regulatory agenda that would make fracking economically impossible.”
Guith noted that these tactics would face a great deal of legal challenges from states, businesses and local governments. That’s essentially what happened under President Barack Obama, whose administration attempted to increase regulations on fracking, and yet was largely thwarted in the courts.
In 2015, the federal government issued a series of fracking regulations through the Bureau of Land Management that were meant to protect water resources and force companies to disclose the chemicals used in fracking.
Wyoming and Colorado filed petitions for judicial review on the new rules and in 2016 a federal district court judge held that the administration’s regulations were unlawful. According to the opinion on the case by Judge Scott Skavdahl, the court found “that the Bureau of Land Management lacked Congressional authority to promulgate the regulations.”
This story might repeat itself if an administration tried to reinterpret countless federal regulations in, for instance, the Safe Drinking Water Act or the Underground Injection Control programs – which regulate, among other things, the disposal of wastewater from fracking – to try and curb fracking on private land.
So how would these candidates look to thwart fracking?
Warren’s campaign suggested she would focus on getting a bill through Congress, though that would be difficult if the Republicans maintain their majority in the Senate.
“Elizabeth will fight for legislation to ban fracking nationwide,” Saloni Sharma, Warren’s deputy national press secretary, told CNN. “She’ll build on the Obama administration’s methane rule and use executive authorities to regulate contaminants to our air and water as a result of fracking and other natural gas operations.”
Sanders’ plan would take similar actions, using rules and regulations – among other tactics – like the Clean Air Act and the Safe Water Act to work toward eliminating fracking, his campaign says.
An anti-fracking administration could also try to pass new regulations at the EPA that would make fracking less economically feasible, like the Obama administration tried to do with coal. Yet, without the help of Congress, that route would likely run into similar problems.
After a cap-and-trade bill died in the Senate following passage in the House in 2009, the Obama administration tried to limit greenhouse gas emissions through the EPA and its 2014 Clean Power Plan.
The plan, however, was immediately met with lawsuits and never took effect. The EPA received a halt order from the Supreme Court in 2016 until a lower court had ruled on it. Eventually the Trump administration repealed the Clean Power Plan while the case was still bouncing around in the courts.
In order to prevent fracking on US private lands, a Warren or Sanders administration would likely have to work through regulatory powers which would ultimately face a myriad of legal challenges. Or they could try their luck in working with Congress to pass new laws on fracking. Any federal regulations, however, would likely be undone by a future administration who supports or is not as hostile toward fracking.