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July 28, 2014

Illinois to Act on Fracing - Or Not

The Illinois General Assembly could be on the verge of enacting legislation, the Hydraulic Fracturing Regulatory Act (H.B 2615), that some environmental groups are touting as an environmental best practices for regulating the shale oil and gas recovery method known as horizontal hydraulic fracturing (fracing). H.B. 2615, the result of months of negotiations between environmental groups and the oil and gas exploration and production (E&P) industry, was set to be voted on in the Illinois General Assembly in late March, but a last second amendment (favoring in-state licensed drilling companies) has stalled the bill’s progress. 

While HB 2615 is laudable for setting robust regulations on horizontal fracing operations, what should make it the betting favorite is that it is also a revenue bill – the second half of H.B. 2615 contains the Illinois Hydraulic Fracturing Tax Act. Under H.B. 2615, Illinois would finally join the majority of drilling states that tax severed oil and gas. Each Illinois well using horizontal hydraulic fracturing could produce several million dollars in severance taxes during the span of the well’s productive life.

Illinois is one of the few drilling states not to impose any severance or gross production taxes on its substantial oil and gas production. Illinois currently has about 32,000 wells producing between 10 and 11 million bbls of oil (15th nationally) and 2,120 million cubic feet of natural gas, ranking it 26th. That production would increase significantly if large-scale horizontal hydraulic fracturing were introduced in Illinois to the New Albany Shale formation. Technically recoverable shale gas in the New Albany Shale is estimated at up to 11 trillion cubic feet (for comparison, the Marcellus Shale in the East has 84 TCF). A majority of the drilling states, including Indiana and Kentucky, tax oil and gas production. Several others, most prominently Pennsylvania, are currently considering adopting oil and gas severance taxes.

Competing with H.B. 2615 are three other bills: two bills favored by those environmental groups not supporting H.B. 2615 that would put a two-year moratorium on any hydraulic fracturing and an E&P industry-sponsored bill that environmental and community groups strenuously oppose. One would think that with the support of the E&P industry and some environmental groups (including the Natural Resources Defense Council), plus the revenue enhancement features of the severance tax, H.B. 2615 should be a done deal. But given the current state of Illinois politics, taxes might not be the certainty that Ben Franklin once thought they were. 

© 2014 McDermott Will & Emery

About the Author

Partner

Thomas L. Hefty is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Chicago office.

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