Several western states and industry groups are hammering away at the U.S. Bureau of Land Management (BLM) hydraulic fracturing (fracking) rule to prevent the federal agency from governing leasehold activity on public and tribal lands.
The plaintiffs asked a district court in Wyoming to overturn the fracking standards released a year ago (see Shale Daily, March 20, 2015). Last Friday’s filings argue against the rule in the same court where the regulation was stayed last year pending legal challenges (see Shale Daily, Sept. 30, 2015).
Last September, U.S. District Court Judge Scott Skavdahl in Wyoming approved a preliminary injunction (PI) against the fracking regulation and said “petitioners had presented credible evidence that the imposition of the rule would result in irreparable harm to oil and gas operators on federal lands, and that existing federal and state rules were sufficient to protect against environmental harm…” (see Shale Daily, May 19, 2015).
Attorneys for the Western Energy Alliance (WEA) and North Dakota, Wyoming, Colorado and Utah lawyers said in the latest briefs that the rule exceeds BLM’s authority, duplicates existing laws and violates the 1920 Mineral Leasing Act, among other things.
“In promulgating the BLM rule, the [federal agency] insists, for the first time, that it has the authority to regulate hydraulic fracturing on federal and Indian lands,” North Dakota stated in its brief. It noted that Congress specifically prohibited the Environmental Protection Agency (EPA) from regulating fracking in 2005 and intended the prohibition to include all federal agencies.
“Absent a specific grant, the BLM cannot demonstrate congressional intent to alter the more specific provisions of the [laws] or the longstanding balance of power under which North Dakota has primary responsibility over land and water use,” the state said. North Dakota lawyers accused the BLM of attempting “an end-run around Congress’ clear intent.”
The groups picked apart the BLM rule’s key components, which require operators to validate the integrity of cement barriers when well bores pass through aquifers; the public disclosure of chemicals used; and the handling of wastewater.
WEA’s brief pointed out that the BLM requirements for wellbore construction chemicals and water disposal are already “the subject of comprehensive regulations under existing federal and state law.”
It further argued that the rules violate the existing mineral leasing law that authorizes the Interior secretary “to foster and encourage private enterprise in the orderly and economic development of domestic mineral resources.” The rules don’t balance environmental needs with “fostering and encouraging” private enterprise.
The industry briefs pointed out that during the past 30 years drilling on federal and tribal lands has fallen off significantly. In 2010, they said, 23% of all U.S. gas production was done on federal land; today that percentage is down to 13%. Natural gas production has dropped by 1.6 Tcf annually.
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