New Brunswick

Fracking rules often lag behind industry's growth

New Brunswick is not the only jurisdiction in North America that is struggling to regulate the shale gas industry.
Former Quebec premier Lucien Bouchard is now a spokesman for the province's gas industry. (Paul Chiasson/CP)

Every state and provincial jurisdiction in North America has different rules for oil and gas extraction, but when it comes to shale gas, a common theme emerges: science and regulation have lagged behind the rapid growth of the industry.

From nearby Nova Scotia to distant Arkansas, there are questions about whether regulators have been willing, or able, to compile the data required to assess if shale gas extraction is safe.

Four years ago, Ken Summers, a resident of Minasville, in Hants County, N.S., noticed that seismic testing was beginning in his community.

"I’d never heard of shale gas exploration and drilling before," he said.

He attended public meetings, and heard assurances from industry representatives that hydraulic fracturing would be well-regulated and safe.

But his own research made him wonder.

One of the euphemisms used for fracking is "unconventional extraction," but Summers discovered that in Nova Scotia, the provincial government was relying on utterly conventional regulations to regulate the practice — the same ones used for traditional resource industries.

"All they have is levels of existing regulation that were designed for conventional drilling, and that's all they're applying to this," he said.

"To say the least, they're flying by the seat of their pants."

Nova Scotia’s Dexter government has launched a review of its regulations, but Summers said it should have happened long ago, before the industry even began testing.

Jennifer West, a geologist with the Halifax-based Ecology Action Centre, says the provincial review isn’t as comprehensive as the one done on the potential for tidal energy generated in the Bay of Fundy.

"I think that would be a much better way to review fracking in Nova Scotia and maybe in Atlantic Canada, to look at the big issues: how is it going to affect air quality? How is it going to affect infrastructure and tourism?" she said.

"There doesn’t seem to be a clear process or a clear checklist: `These are the things that need to happen. As a company you need to make sure you’re covering these issues, get these forms in, cover these regulations. It’s very ad hoc. They’re running by the seat of their pants."

'Living is a risk'

Likewise, in Quebec, the provincial government gave the industry the green light to begin work, without putting detailed, shale-specific regulations in first. That prompted public protests, and eventually the Charest government put a hold on all commercial fracking.

The industry has responded by hiring a high-profile retired politician as the head of its Quebec Oil and Gas Association: former premier Lucien Bouchard. After staying out of the public eye following his 2001 retirement from politics, Bouchard has returned to the limelight, giving speeches in favour of the industry.

"Natural gas is the clean solution" to North American’s energy challenges, Bouchard has said. "Environmentalists should be the first to promote natural gas."

He has also acknowledged that there are risks to hydro-fracking.

"Yes, we have to be careful. Yes, we have to protect the environment. Yes, we have to be responsible. But at the same time, I can’t believe that means we shouldn’t do anything that involves the least amount of risk. Living is a risk. Crossing the street, riding a bike, flying in an airplane, driving a car . . . it all involves risk."

Arkansas's problems

In preparing its own regulations on fracking, the Alward government has looked to other provinces, but also to the United States, where there are also suggestions that regulation and data collection have not been adequate.

New Brunswick’s natural resources minister, Bruce Northrup, said some states have given him a good idea of what not to do, particularly Arkansas.

Northrup told a recent webcast organized by his department that his visit to Arkansas gave him a chance to talk "especially to the landowners [about] the negatives and positives that we want to bring back to the province, so we don't make the same mistakes that they made in Arkansas."

As in Canada, the U.S. government has a limited role in regulating gas extraction. The Environmental Protection Agency is studying whether to create national standards for the disposal of wastewater from fracking, and whether the practice affects drinking water.

Even though fracking is already exempt from chemical-disclosure requirements in the Safe Drinking Water Act and the Clean Water Act, many states are resisting any federal role whatsoever.

Arkansas is often criticized as a pro-industry state. Until this year, fracking firms did not have to disclose what chemicals they were using, and even now, if a chemical meets the state’s legal definition of a "trade secret," it doesn’t have to be identified.

There are also no noise restrictions on fracking sites, which are allowed to exist 200 feet from private homes. By contrast, the law says residents who live within three miles of a proposed car-racing track must be notified before it can be built.

The state, however, recently adopted noise restrictions on compressor stations—a sign that even pro-industry politicians in Arkansas recognize that they have to get ahead of the intensifying debate about fracking.

Jason Rapert, a Republican state senator who chairs the Arkansas Legislature’s "shale gas caucus"—a collection of pro-industry Republicans and Democrats—also recently asked a non-partisan group called STRONGER to review the state’s regulatory regime.

STRONGER, an acronym for State Review of Oil and Natural Gas Environmental Regulations, is a broad-based, independent, non-profit peer-review process.

"Since it is such a contentious issue, and since the natural gas production has meant such a great economic benefit to our communities," Rapert said, "we need to have a final resolution to this process going forward for the interests of all concerned."

Abrahm Lustgarten, a journalist who has investigated the shale gas industry for ProPublica, a non-profit, investigative news organization, says the STRONGER review is credible.

"It allows a mechanism for states to get together, basically like a committee, and critique each other's programs and therefore improve them," he said.

"I think it's a really positive program that has let a number of states improve and raise the bar for the least experienced or the states with the least money to invest in regulatory programs, to get them up to the level of some of the better states."

Still, regardless of the STRONGER outcome, Rapert—who accepts campaign contributions from shale gas companies, and who has argued industry critics are mostly from outside the state—defends fracking as vital to the state’s fiscal well-being.

He said the state’s strict balanced-budget law prevents the government from running a deficit. That would have meant deep cuts to services this year if not for the tax revenue from the shale gas industry. 

"We know we have a tremendous reserve of natural gas that's going to be in play over the next 30 years here. It's not going to go away," he said.

"It's some of the cleanest energies in the world . . . and it's half the cost of gas and diesel right now in our nation. We need to take advantage as a country and also as a state of this wonderful energy resource."

And Rapert said his views, and his votes, aren’t influenced by campaign donations from fracking firms.

"There are people who finance campaigns, and they give contributions because they support the values or views a particular candidate represents," he said.

"That’s the way people running for office can get their message out and compete."

Many regulatory gaps

Lustgarten said Arkansas’s need for a STRONGER review is hardly unique. Many states have gaps in their water regulations, claiming they require disclosure of "all" fracking chemicals even though they allow various exemptions for inactive ingredients, trace amounts, or the exact proportion—the "recipe"—of the chemical mix.

In New Brunswick, "all chemicals will have to be made public, period," according to government spokesperson Marc Belliveau.

But the precise mix is commercial, proprietary information that the companies keep closely guarded. Belliveau says the companies will disclose the mix to the government, which will issue or refuse licences based on that information, but that information won’t be made public.

Lustgarten said New Brunswick’s commitment to baseline water testing is a good idea. Water will be tested before fracking begins to provide a comparison, so that no one can claim chemicals found later occurred naturally.

But he also issued a caution: in many states, the oil and gas regulators have little or no expertise in environmental issues or health.

Residents who live near drilling sites often complain about symptoms such as headaches and respiratory ailments, but there is no tracking of those ailments to establish, or rule out, a link to the industry.

Lustgarten said the state of Pennsylvania has discussed setting up a health registry to record and tabulate all complaints, but so far it hasn’t happened.

"Only when you have that big picture, and large enough numbers that you can look at averages, and not individual, abnormal cases, can you start to draw connections,"  he said.

"[That’s when you can say, `This group of people that all experienced skin lesions were all exposed to the same environmental pollutant that was released from a particular site in a particular region on the same day.’ That's where you can start to make those connections. That doesn't exist anywhere in the United States."