ABSTRACT

To understand why states, the oil and gas industry, and stakeholders turned to the policy approach of chemical disclosure, it is first necessary to understand why existing federal chemical law fails to address long-term uncertainty about the effects of hydraulic fracturing fluids. There are three federal laws that would seem to apply to the chemical activity: the Emergency Planning and Community Right-to-Know Act (EPCRA), [181] the primary federal law designed to inform the public about chemical risk; the Toxic Substances Control Act (TSCA), [182] the primary federal law governing the production and use of toxic chemicals; and the Safe Drinking Water Act (SDWA), [183] the primary federal law governing underground injection of fluids. [184] Yet the nature of the chemical activity poses a fundamental challenge to these laws, including the assumptions about risk

and the need for trade secret protection on which these laws are based. While high-volume hydraulic fracturing is not unique in presenting this challenge, the scope of the activity places the laws’ failures in high relief.