Hydraulic Fracturing

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Since our last update on federal litigation in Wyoming challenging the Bureau of Land Management’s (BLM) final rule to regulate hydraulic fracturing on public lands, the flurry of activity continues in advance of the June 23 preliminary injunction hearing. We’ve summarized several key filings below:

BLM’s Opposition To Preliminary Injunction

On June 1, the BLM filed its brief opposing the preliminary injunction motion entered by the two industry group plaintiffs—the Independent Petroleum Association of America and the Western Energy Alliance. The BLM primarily focuses on two arguments.

First, the BLM contends the industry groups are unlikely to succeed on the merits of their litigation against the rule, and, as a result, a preliminary injunction is unwarranted. In support of its position, the BLM argues:

  • It developed the final rule in accordance with appropriate statutes, including the Federal Land Policy and Management Act, which grants the BLM authority to administer public lands and resources.
  • The industry can comply with certification requirements, such as the temporary recovered fluid storage requirement, by invoking trade secret protection under the BLM’s existing regulations.
  • The final rule is justified and necessary to address modern technological advances and changes in hydraulic fracturing industry.
  • The industry groups failed to demonstrate irreparable harm, since there is no imminent risk of disclosure of confidential information.

The BLM also maintained that the public interest would not favor a preliminary injunction, because entering one would deny the BLM tools to prevent environmental harm, including putative groundwater contamination. And, according to the BLM’s arguments, an injunction would detrimentally affect the orderly administration of federal energy policy, causing confusion among the public and the industry as to whether and when its final fracking rule would become effective.Continue Reading Preliminary Injunction Arguments Pour Into Litigation Against BLM’s Final Fracking Rule

On Thursday, the Environmental Protection Agency (“EPA”) released a long awaited, and congressionally mandated, study detailing the relationship between hydraulic fracturing and drinking water. The EPA found no signs of “widespread, systemic” drinking water pollution from hydraulic fracturing.

“It is the most complete compilation of scientific data to date,” says Dr. Thomas Burke, with the EPA’s Office of Research and Development, “including over 950 sources of information, published papers, numerous technical reports, information from stakeholders and peer-reviewed EPA scientific reports.”

“After more than five years and millions of dollars, the evidence gathered by EPA confirms what the agency has already acknowledged and what the oil and gas industry has known,” said Erik Milito, with the American Petroleum Institute. “Hydraulic fracturing is being done safely under the strong environmental stewardship of state regulators and industry best practices.”
Continue Reading EPA Finds No Systemic Threat to Drinking Water from Fracking

On the heels of a preliminary injunction motion filed in the action by two industry groups challenging the federal Bureau of Land Management’s (BLM) final rule regulating hydraulic fracturing on public lands, the states of Wyoming and Colorado likewise filed a preliminary injunction motion in their related case last Friday.

In their brief, the…

Three states have recently taken a stand for or against controversial bans on hydraulic fracturing. Oklahoma, Texas, and Maryland have all passed laws within the past month relating to hydraulic fracturing bans.

Oklahoma

Last Friday, Oklahoma Governor Mary Fallin signed Senate Bill 809, which prohibits local governments from choosing whether to have oil and gas operations within their jurisdictions. Oklahoma’s law allows exceptions for “reasonable” restrictions for setbacks, noise, traffic issues and fencing. Governor Fallin said “A patchwork of regulations that vary across the state would be inconsistent with the goal of reasonable, easily understood regulations and could damage the state’s economy and environment.” Senate Bill 809 reaffirms that the Oklahoma Corporation Commission is the primary entity charged with establishing a unified regulatory framework for the energy industry. Chad Warmington, president of the Oklahoma Oil and Gas Association, said “This bill was a good compromise for all involved. It maintains the Corporation Commission’s role in regulating oil and gas activities, without limiting cities’ ability to protect their residents.” Senate Bill 809 passed with wide margins in both the House and the Senate.
Continue Reading States Show Their True Colors on Fracking – One Enacts a Ban, While Two Others Prohibit All Local Bans

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…

On Tuesday, April 7, the U.S. Environmental Protection Agency (“USEPA”) published a proposed rule in the Federal Register for regulation of wastewater from unconventional oil and gas operations (“UOG”), which includes hydraulic fracturing.  The rule, titled “Effluent Limitations Guidelines and Standards for the Oil and Gas Extraction Point Source Category,” is a Clean Water Act (“CWA”) regulation and imposes pretreatment requirements for existing and new sources.  In accordance with the prescribed standards, oil and gas operators would be required to pretreat their wastewater fluid before it is transferred into publicly owned utilities.  The proposed rule contains technology-based pretreatment standards.
Continue Reading USEPA Releases Proposed Rule on Fracking Wastewater Treatment; Says There Will be No Costs to Industry

On Wednesday, April 1, the state of North Dakota filed a motion to intervene in Wyoming’s lawsuit challenging the Bureau of Land Management’s (“BLM”) federal hydraulic fracturing regulations.  (Wyoming v. U.S. Dept. of Interior, Case No. 15-CV-43-5 (Mar. 26, 2015).)  The BLM’s Final Rule, released on March 26, 2015, governs fracking on Federal and…

Less than one week after the Bureau of Land Management (BLM) released its Final Rule governing hydraulic fracturing practices on federal lands, North Dakota will proceed to explore the state’s legal options for challenging the new regulations.  At their March 24 meeting, the members of the North Dakota Industrial Commission—comprised of Governor Jack Dalrymple,…

Today, Friday, March 20, the Bureau of Land Management (“BLM”), an agency within the Department of the Interior, published regulations for hydraulic fracturing on Federal and Indian lands.  The Final Rule becomes effective in 90 days and will impact about 2,800-3,800 wells each year.  In 2013, 90% of the 2,800 new wells on Federal and Indian lands were stimulated using hydraulic fracturing techniques, according to the BLM.  (Hydraulic Fracturing on Federal and Indian Lands, Final Rule, at p. 14.)  The regulations do not apply to fracking activity on private and state-owned land, where most of the fracking in the United States occurs.

Requirements under the Final Rule

The overarching purpose of the Final Rule is to provide a “baseline for environmental protection.”  (Id. at p. 12.)  Principally, a permit is required under existing oil and gas regulations.  Before beginning operations, an operator must submit an Application for a Permit to Drill (“APD”) to the BLM and wait for approval.  As the new regulations supplement the existing regulations, and do not replace them, this permit requirement will continue under the new regulations.Continue Reading Obama Administration Releases Federal Fracking Regulations

In a closely watched, 4-3 decision issued yesterday, February 17, the Ohio Supreme Court ruled that the ‘Home Rule Amendment’ to the Ohio Constitution does not grant the city of Munroe Falls the power to enforce its own oil and gas permitting scheme simultaneously with a state-wide permitting regime. (State ex rel. Morrison v.

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Here Stoel Rives shares insight and analysis about key mineral law developments. Drawing on a very active natural resources practice, we aim to keep readers informed about the legal aspects of news that impacts exploration and development of all things mineral.