By: Federico DaFranca
All Rights Reserved – April 2019
The traditional method of gas mining has existed for several decades. Natural gas is mined and used for electricity generation, heating and transportation of fuel. The Louisiana Department of Natural Resources presents “traditional” mining as the exploitation of oil and gas that migrates out of the shale rock into underground reservoirs.
(Online: Harvard Law Citing Louisiana: 2019)
Fracking, on the other hand, constitutes the process of extracting oil and gas from shale beds by drilling into the Earth and injecting at extreme pressure a mix of water, sand and chemicals to fracture rock and release oil or gas (Mineo L.: Online: 2015).
A Review of Portland Cement Alliance et al. petitioners versus the Environmental Protection Agency facilitates the Hypothesis tested herein. The hypothesis formulated for the present academic article is as follows: As per the State of North Dakota, the American Petroleum Institute, the Independent Petroleum Association of America and the Texas Independent Producers and Royalty Owners Association the Environmental Protection Agency´s regulations and guidelines concerning the disposal, storage, transportation and handling of oil and gas wastes is presently adequate (EPA Integrity et al. v. McCarthy: D.D.C.:2016 ).
The legal precedent states for the State of North Dakota that Environmental Protection Agency intervention is non-suitable when it can be deemed “arbitrary.” The term “arbitrary” may be established from precedent by evaluating the opinion of Circuit Judge Brown under Portland Cement Association v. Environmental Protection Agency and Lisa Perez (D.D.C.: 2011):
“I fully join the per curiam decision, but I write separately to observe that there is much to be said for Petitioner´s argument that EPA should not be permitted to base NESHAP standards on bare emissions data, and that EPA should instead isolate the effect of emissions control technology by controlling for input quality. Because kilns are co-located with raw material quarries and because there is significant variability in the pollutant content of raw materials, a kiln may have low emissions simply because it happens to be blessed with good inputs, not because it is using a superior control technology.” (Emphasis Added)
Please note from a literal interpretation of the text how Judge Brown intends to emphasize controlling for “input quality” instead of “emissions data.”
“…when the CAA directs EPA to set floors based on ´the emission control that is achieved in practice by the best controlled similar source,´ 42 U.S.C. S7412(d)(3) it would seem to be specifically directing EPA´s attention to the active steps a kiln has taken to control its emissions, not simply the level of emissions itself.” (Emphasis Noted: Ibidem)
Thus, from the above-cited legal inference Judge´s Brown interpretation of the text reads 42 U.S.C. S7412(d)(3) to direct the EPA´s attention to the active steps taken to control the emissions, not the emissions themselves.
“… the structure of the statute also suggests that the quality of inputs should not be permitted to affect the calculation of floors: the ´substitution of materials (…) is listed as a factor to be considered in the second, beyond-the-floor determination, not in the antecedent floor-setting determination. Id. S. 7412(d)(2)(A).” (Underlined Text not from the original citation: Ibid.)
Therefore, from Judge Brown´s argument quality control and material examination are separate and independent. They are autonomous.
Despite the fact that the argument was rejected by the Court as can be reviewed under the summarised precedent (Pp. 30: Portland Cement Assoc. et al. v. EPA and Lisa Perez: 2011), the opinion of Judge Brown is a basis for arbitrariness.
In conclusion, the hypothesis is reaffirmed: All exceptional circumstances normal, EPA regulation is adequate.