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Legal Halt to BLM Fracking Rule Still Possible, IPAA Attorney Says

A court injunction against placing a federal Bureau of Land Management (BLM) hydraulic fracturing (fracking) rule into effect could still happen, an attorney representing the Independent Petroleum Association of America (IPAA) told an industry audience in Houston Thursday night.

The fate of the injunction sought by IPAA, the Western Energy Alliance (WEA) and several states (see Shale Daily, June 1) will determine how aggressively industry advocates challenge the rule through a court administrative procedures case, said Mark Barron, a BakerHostetler attorney, speaking at a shale symposium hosted by the law firm.

Noting he hopes to get an injunction ruling from the U.S. District Court for the District of Wyoming on June 23 (the day before the effective date for the BLM rule), Barron said the ruling "will have a significant impact on how we pursue the litigation."

If the court blocks the rule from being put in place on June 24, Barron said the industry will be less concerned about having a speedy court hearing, and BLM has already signaled that it wants additional time to compile the administrative record leading up to the rule.

"On the other hand, if the rule is put in place, and our members are already incurring added expenses as a result, then we will push for a very rapid schedule. The importance of this being an Administrative Procedures Act case means there won't be a trial. We, the states and a coalition of environmental groups that has now intervened will all have a chance to file briefs."

The judge will then decide the case on the basis of those filings, Barron said. "Our expectation for a decision is months -- not years -- but obviously any time period is costly," he said.

Barron said if the BLM rule does become effective, there are no time limits on the federal agency for deciding on individual operator fracking permit applications. If there is no action, operators are left with appealing, but that process is not spelled out in the new rule, he said.

"The general appeal process for BLM regulations would likely apply," Barron said.

Earlier this year, Colorado, North Dakota and Wyoming challenged the BLM proposed fracking rule on public and tribal lands (see Shale Daily, April 28). IPAA and WEA in March filed a lawsuit to set aside the proposed BLM regulations.

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