Last Friday, the Independent Petroleum Association of America (IPAA) and the Western Energy Alliance (WEA) opened their arguments on a preliminary injunction motion to halt the federal Bureau of Land Management’s (BLM) final rule regulating hydraulic fracturing on public lands until resolution of the litigation.
In its supporting memorandum, the IPAA and WEA detail the process by which the BLM arrived at its final rule and highlight several issue they submit favor a preliminary injunction. The industry groups challenge the BLM’s issuance of the rule over comprehensive comments in the record that detail technical and legal problems with its proposal. In particular, the groups fault the BLM for ignoring or misunderstanding technical aspects of oil and gas production and the economic consequences of the final rule; they contend both undermine the procedural legitimacy of the rulemaking process. Specifically, the groups challenge several provisions of the final rule as impossible and, thus, per se arbitrary, including, for example:
- Requiring operators to certify fluids used in hydraulic fracturing comply with all applicable permitting and notice requirements and all federal, state, tribal, and local laws, rules, and regulations;
- Undefined and vague “mechanical integrity test” for any casing or fracturing string, which do not appear different than ones operators are currently required to perform; and
- Expanding earlier requirements to isolate freshwater-bearing formations to include “usable water” that does not take into account the potential for high levels of salinity.
The IPAA and WEA further argue that the final rule lacks a rational justification because the BLM has not substantiated the existence of a problem the rule is meant to address, the rule is contrary to other existing law, and it suffers from procedural deficiencies.
To that end, the industry groups contend they are likely to succeed on the merits of their suit and that their members will be irreparably harmed if the Wyoming federal court does not issue an injunction. The BLM will now have an opportunity to respond to the arguments set forth by the IPAA and WEA. The court has not yet set a hearing date for the preliminary injunction motion.
UPDATE: Governor Gary Herbert indicated yesterday (May 19), that the State of Utah intends to also seek to intervene in the State of Wyoming’s case against the BLM concerning its final rule regulating hydraulic fracturing.
Mineral Law Blog will continue to monitor and report on these legal developments as they progress.