214
Produced water—water that comes back out of the wellbore after fracking—is
often injected into abandoned oil and gas wells as a means of disposal. Deep well
injection of wastes is typically regulated by the Safe Drinking Water Act’s
Underground Injection Control (UIC) regulations. However, under what is
commonly referred to as the “Halliburton Loophole,” encoded in the Energy Policy
Act of 2005
2
wastes resulting from oil and gas exploration and production are
exempt from UIC requirements “unless such requirements are essential to assuring
that underground sources of drinking water will not be endangered by such
injection.”
Other key exceptions include exemptions from CWA stormwater permitting
requirements for oil and gas exploration and production, processing and transmission
facilities These exemptions from federal law, however, do not preclude state law
from requiring stormwater permits for construction activities associated with oil
and gas development. This is just one example of how the regulatory landscape for
FEW resources is complex and multi-scalar.
8.1.3 Private Property Rights and FEW Resource Regulation
There is a tradition of strong private property rights in US jurisprudence. Water law,
for example, has historically favored individuals who harness and divert water away
from natural channels to private uses, even if doing so harms the ecological health of
watersheds. Similarly, conventional oil and gas law is based on the rule of capture—
the party who removes oil or gas from the ground gains a property right in that
resource. With respect to food or any other vegetable matter, the farmer who owns the
land the crop is grown on owns the crop unless a contract stipulates otherwise.
However, regulations to protect the public interest routinely impinge on individual
property rights and alter market forces. Governments can regulate the location and
manner of energy exploration and production, and the placement and operation of a
larger infrastructure for transmission of oil gas and electricity, for example.
Federal and state financial assistance and insurance programs help stabilize agricultural markets. But the production of food and energy is still largely under the
control of individuals and corporations, and production rates respond to price
signals in the market, which can result in industry trends that are not conducive to
the long-term sustainability of FEW resources. According to the USDA, 90–99% of
crops grown in southwestern US states (based on 2012 market value) depended on
irrigation.
3
However, data from the U.S. Geologic Survey (USGS) shows that total
2 Critics named the loophole after a Wellfield Services company that benefited from it. Richard
(Dick) Cheney, US vice-president at the time of the 2005 Act, had previously served as CEO of
Halliburton.
3 See USDA, National Agricultural Statistics Service (NASS), 2012 United States Census of
Agriculture, AC 12-A-51, Washington, DC, May 2014, http://www.agcensus.usda.gov/
Publications/2012/Full_Report/Volume_1,_Chapter_1_US/usv1.pdf.otal.
B. Kinne and D. Magee
Produced water—water that comes back out of the wellbore after fracking—is
often injected into abandoned oil and gas wells as a means of disposal. Deep well
injection of wastes is typically regulated by the Safe Drinking Water Act’s
Underground Injection Control (UIC) regulations. However, under what is
commonly referred to as the “Halliburton Loophole,” encoded in the Energy Policy
Act of 2005
2
wastes resulting from oil and gas exploration and production are
exempt from UIC requirements “unless such requirements are essential to assuring
that underground sources of drinking water will not be endangered by such
injection.”
Other key exceptions include exemptions from CWA stormwater permitting
requirements for oil and gas exploration and production, processing and transmission
facilities These exemptions from federal law, however, do not preclude state law
from requiring stormwater permits for construction activities associated with oil
and gas development. This is just one example of how the regulatory landscape for
FEW resources is complex and multi-scalar.
8.1.3 Private Property Rights and FEW Resource Regulation
There is a tradition of strong private property rights in US jurisprudence. Water law,
for example, has historically favored individuals who harness and divert water away
from natural channels to private uses, even if doing so harms the ecological health of
watersheds. Similarly, conventional oil and gas law is based on the rule of capture—
the party who removes oil or gas from the ground gains a property right in that
resource. With respect to food or any other vegetable matter, the farmer who owns the
land the crop is grown on owns the crop unless a contract stipulates otherwise.
However, regulations to protect the public interest routinely impinge on individual
property rights and alter market forces. Governments can regulate the location and
manner of energy exploration and production, and the placement and operation of a
larger infrastructure for transmission of oil gas and electricity, for example.
Federal and state financial assistance and insurance programs help stabilize agricultural markets. But the production of food and energy is still largely under the
control of individuals and corporations, and production rates respond to price
signals in the market, which can result in industry trends that are not conducive to
the long-term sustainability of FEW resources. According to the USDA, 90–99% of
crops grown in southwestern US states (based on 2012 market value) depended on
irrigation.
3
However, data from the U.S. Geologic Survey (USGS) shows that total
2 Critics named the loophole after a Wellfield Services company that benefited from it. Richard
(Dick) Cheney, US vice-president at the time of the 2005 Act, had previously served as CEO of
Halliburton.
3 See USDA, National Agricultural Statistics Service (NASS), 2012 United States Census of
Agriculture, AC 12-A-51, Washington, DC, May 2014, http://www.agcensus.usda.gov/
Publications/2012/Full_Report/Volume_1,_Chapter_1_US/usv1.pdf.otal.
B. Kinne and D. Magee