How a President Can Use Regulatory Levers to Slow Fracking

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.

If Congress was to approve such a ban, it would have little effect beyond federal public lands, including in battleground state Pennsylvania, among the nation’s largest producers of fracked natural gas. The only federal public lands leased for gas development in the state are 850 acres in Allegheny National Forest.

“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.”

Weaver said among those “regulatory levers” at an administration’s disposal are new methane emissions and Waters of the United States (WOTUS) rules that preempt state regulations, giving the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers opportunities to cause potential issues for Pennsylvania’s oil and gas development.

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.

“In fact, I was the tie-breaking vote on the Inflation Reduction Act, which opened new leases for fracking. We’ve invested $1 trillion in the clean energy economy while also increasing domestic gas production to historic levels.”

The United States produced more domestic oil in 2023 and early 2024 than any nation in history, according to the U.S. Energy Information Administration in a March report. The pace has not slackened, with the Biden administration approving nearly 50 percent more oil and gas drilling permits for wells on federal land since taking office than during the previous administration.

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.

However, Congress has ceded to the executive branch authority to regulate energy production to ensure compliance with federal environmental laws and regulations, such as the Clean Air Act.

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.

In April, the federal government imposed a rule requiring oil companies to purchase $150,000 bonds per lease on federal lands, up from $10,000, the first such increase since 1960.

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.