Colorado is the third oil/gas producing state to join legal challenges to the federal Bureau of Land Management’s (BLM) proposed rules for hydraulic fracturing (fracking) on public and tribal lands.

In March, the Independent Petroleum Association of America (IPAA) and the Western Energy Alliance (WEA) filed a lawsuit seeking to set aside the proposed BLM regulations. A week later Wyoming filed its own lawsuit, which was subsequently joined by North Dakota (see Shale Daily, April 16; March 26).

The action, according to Colorado Attorney General Cynthia Coffman, raises the legal question: whether BLM can impose its own regulations on hydraulic fracturing, even though federal law does not give it that power and instead allows states to regulate in this area.

IPAA and WEA, represented by the BakerHostetler law firm, cited various flaws in the proposed BLM rules, questioning the legitimacy of the approach by the federal agency. They argued that the rules do not govern fracking per se, but instead set up “administrative impediments” that will make it difficult for any kind of oil/gas production on federal lands.

“Colorado has robust regulations on oil and gas development, including hydraulic fracturing, and our [state] agency regulators are doing a good job implementing them,” Coffman said last Friday. “I believe it is important to test BLM’s novel assertion of regulatory authority in an area that has been traditionally — and in this case expressly — reserved for the states.

“To be clear, this case is not about whether hydraulic fracturing should or should not be regulated; it should be regulated, and Colorado is doing so. However, the debate over hydraulic fracturing is complicated enough without the federal government encroaching on states’ rights.”

Joining the IPAA and WEA lawyers, Coffman predicted that legal action will demonstrate that BLM is exceeding its powers when it enters the states’ area of regulatory authority in this area. “It will also allow further dialogue on this important public policy issue as Colorado continues to refine its regulatory approach to the industry,” she said.

A spokesperson in Gov. John Hickenlooper’s office said he was not supporting the move by Coffman.

BakerHostetler (BH) attorneys said that Colorado’s joining the fight represents “a building trend of state pushback to federal encroachment into state sovereignty” when it comes to hydraulic fracturing. “The states have shown leadership in regulating oil/gas development, and particularly the process of hydraulic fracturing,” said Mark Barron, a BH attorney on the case.

“Interior’s action represents regulatory overreach and an untenable infringement on state sovereignty,” Barron said.