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Fracking Gag Rule Part II: The Real Reasons

Fracking Gag Rule Part II: The Real Reasons

As I write this column, Republicans in the North Carolina General Assembly (NCGA) are fast tracking a new law which makes it a Class 1 felony to disclose the identities of chemicals used in fracking here in the Tar Heel State. The purported rationale for this law is that identities of these chemicals are closely guarded and valuable trade secrets for the drilling companies. In Part I of this series, I reviewed how and why chemicals are used in the fracking process ,and why I think the suggestion that the identities of the chemicals used represent valuable trade secrets is absurd.

If I am correct that the legislation is not really motivated by the need to protect the alleged trade secrets of companies like Halliburton and Schlumberger, what are the actual motivations for the drilling companies to advocate for this law? Below are my opinions.

I believe the oil companies and their lobbyists are pushing this gag rule legislation for four reasons, all of which are related to the use of petroleum distillates in the fracking process. If you want the full story on the use of petroleum distillates in fracking, please read Part I of this series. For the purposes of this column you need to know four things about petroleum distillates:

1. They are a low-value byproduct of the oil refining process.
2. They contain hundreds of different small-to-medium-sized hydrocarbons.
3. They are needed as a co-solvent to allow the other chemicals used in fracking to remain stabilized in the water and sand mixture which is pumped into the wells.
4. They contain small concentrations of known carcinogens.

Reason Number 1: Characterizing Petroleum Distillate is Cumbersome

The composition of petroleum distillates is complex, since they contain hundreds of different chemicals. Furthermore, the composition of the distillates continually changes based on the type of oil being refined as well as on changes in the operating conditions of the refinery. Therefore, if the drilling companies had to disclose the chemicals used in each of their thousands of fracking wells, it would require a lengthy and detailed laboratory analysis accompanied by a substantial amount of paperwork. They could do this work – they just don’t want to.

Reason Number 2: Benzene

All petroleum distillates contain benzene, a widely known and feared carcinogen which can cause leukemia. Public disclosure that a drilling company was injecting benzene into the ground beneath our drinking water aquifers would cause alarm.

The drilling companies could point out, correctly, that the potential exposure from the small amount of benzene used in fracking is significantly lower than the amount of benzene which one routinely inhales while pumping gas. (Benzene is used in gasoline to improve the octane rating, which makes your engine run better.) However, I suspect this sort of argument would fail in the court of public opinion. People would just stop listening after “benzene.”

Reason Number 3: Water Pollution Monitoring

If fracking really does take place in Lee and Moore Counties, government agencies and non-governmental organizations will test for water pollution in nearby streams, lakes, and wells. Since, as I pointed out in Part I, everyone already knows what chemicals are likely to be used in fracking, it will not be difficult to know what to look for.

For example, let’s say the Lee County chapter of the Sierra Club detects hexane in Oldham’s Lake outside of Sanford. If a comprehensive list of the chemicals injected into specific wells was available, then it would be fairly easy to locate the source of the pollution. You, my gentle reader, may think that’s a good idea. It would appear that the drilling companies do not.

Reason Number 4: Free Disposal

Of my four proposed “true reasons” for the gag rule, this last one is the most speculative, but to me, the most interesting. As I have explained, the petroleum distillates used in fracking are a low-value byproduct from oil refining. In fact, their value is so low that it is not really worth the effort and expense to try to sell them as paint thinners or fuel additives. Therefore, if you were an oil refinery owner and operator, you probably wish they would just magically disappear.

When the implementation of fracking took off in the U.S. around the year 2005, it created a new and (if you were a refinery owner) exciting outlet for petroleum distillates. So oil companies who are supplying the distillates to the drilling companies have an incentive to maximize the amount of distillate used in fracking, even if it is more than is required as a co-solvent. To the extent that the amount of petroleum distillate used exceeds the amount necessary as a co-solvent, it represents a kind of free and legal chemical dumping. Without having access to the data on the exact concentrations of the chemicals used in fracking, it is not possible for me to be sure that this is happening. However, the incentives to do it are clear and compelling.


There are so many things wrong about this gag rule, I find it hard to organize my thoughts. So please forgive me for resorting to bullet points:

• The reasons that legislators provide for any law should correspond to the actual reasons for the law. It seems abundantly clear to me that this gag rule law has nothing to do with shielding trade secrets. Rather, it seems clear that it is motivated by some combination of the reasons I listed above. Saying otherwise, as the Republicans are, is deceptive and dishonorable.
• With the exception of vital national security concerns, government should always be as transparent as possible. We all live here, farm here, and drink our water here. If the NCGA is going to allow the injection of chemicals underground, it should require full public disclosure.
• As a citizen of North Carolina, I am not at all comfortable with the NCGA deciding to utilize the criminal justice system to address a civil matter such as alleged financial harm to a corporation from disclosure of purported trade secrets. If any of my readers are versed in the law and policy in this arena, I would very much like to hear from you.

I’ll conclude this series next week with an exploration of an aspect of the fracking process which gets far less attention than it deserves: the fate of the water and chemicals that are pumped out of the well after the fracking process is completed.

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