Who will and who won’t ban fracking has emerged as a source of contention within the broader energy policy debate in the 2024 presidential campaign pitting Democrat nominee Vice President Kamala Harris against Republican opponent, former President Donald Trump.
Much of this discussion lacks a nuance voters should understand.
While a president cannot issue an executive order to unilaterally ban hydraulic fracturing to extract natural gas and oil from deep shale formations, an administration has the capacity to impose regulatory restraints that could make it more difficult and expensive.
“No, a president doesn’t have the power to ban fracking,” said Kathleen Sgamma, president of the Denver-based Western Energy Alliance, which represents independent oil and natural gas companies across nine intermountain states.
To “ban” hydraulic fracturing, a president would need legislation from Congress and it would only apply to federal public lands, oil and gas industry representatives confirm.
“What can a president do in Pennsylvania? Directly, not much,” Pennsylvania Independent Oil & Gas Association President Dan Weaver told The Epoch Times. “We aren’t drilling on federal lands so [the federal government] can’t control permits.”
Doing so would invite the Fifth Amendment “taking” lawsuits from landowners, Weaver said.
What a president’s administration can do, Sgamma told The Epoch Times, especially with a compliant Congress, is slap rules and regulations on fossil fuel extraction that could not only be implemented on federal lands but also apply to frackers on state and private lands.
“They have hundreds of regulatory levers that they can use,” Sgamma said, and Harris has an extensive record of “hostility to the oil and gas industry.”
Despite saying during her 2020 presidential campaign “There’s no question I’m in favor of banning fracking,” Harris said she has no plans to do so during her Sept. 10 debate with Trump.
“Let’s talk about fracking because we are here in Pennsylvania,” she said during the debate. “I will not ban fracking. I have not banned fracking as vice president of the United States.
He Said, She Said
Trump said during the debate that Harris would ban fracking “on day one” and if he had been in office the last four years, there would have been “four times, five times” more oil and gas drilling permits issued.Harris has consistently touted those domestic oil production records during her term and her “pragmatic stance” on fracking, shifting from her previous position during her 2020 presidential campaign.
A president only has authority granted by the Constitution or delegated by Congress. Since Congress hasn’t given the chief executive the power to ban fracking unilaterally, a president cannot do so.
In March 2015, the Obama administration imposed new regulatory construction standards and disclosure requirements for fracked wells on federal public lands, designed to discourage fracking.
Under the rule, the U.S. Interior Department’s Bureau of Land Management required lease operators to upgrade leakage standards and provide data on chemicals used in fracking on federal land.
The rule was overturned when a federal judge in Wyoming determined federal agencies lacked the authority to set fracking regulations for federal and Indian lands without congressional approval.
All About Rules and Regulations
The Biden administration withheld public land leases and delayed offshore leasing auctions for more than two years until it revised regulations and fees for lease auctions.Under the new rule, the minimum royalty rate for oil generated from federal lands also rose to 16.67 percent from 12.5 percent of revenue. It is comparable to royalty rates assessed by states and private landowners.
Those rates don’t affect current federal public lands and offshore leases, but will when they’re developed in the future, industry representatives such as Sgamma maintain.
Although a president doesn’t have the authority to ban fracking, some believe Harris, who said her stance on the issue is “pragmatic,” would increase regulatory scrutiny on oil and gas if elected.
“We would fully expect a Harris-Walz administration to sustain the Biden-Harris administration’s hostility” to fossil fuel development, Sgamma said.