[co-author: Jenny Suh – Summer Associate]

Several more key filings have come into the federal litigation challenging the Bureau of Land Management’s (BLM) final rule regulating hydraulic fracturing on public lands in advance of the June 23 consolidated preliminary injunction hearing. These briefs are summarized below:

BLM’s Opposition To The Preliminary Injunction Motions Filed By The States Of Wyoming And Colorado And By The State Of North Dakota

In responding to a preliminary injunction motion filed by the states of Wyoming and Colorado, the BLM argued three main points.

First, the BLM contends that the states failed to demonstrate its likelihood of succeeding on the argument that it exceeded its statutory authority, since Congress delegated the BLM authority over federal public lands and minerals through various statutes, including the Mineral Leasing Act of 1920 (MLA). The BLM further maintains that the Safe Drinking Water Act (SDWA)—cited by the states governments—does not displace its authority under the MLA.

The BLM also submits that the states failed to demonstrate irreparable harm, particularly because federal public lands are within the federal agency’s power to regulate. According to the BLM’s opposition arguments, the final fracking rule does not harm the states’ sovereign authority, but, instead, preserves that sovereignty.

Finally, the BLM argues that the balance of harms and public interest weigh against an injunction, because the BLM’s final rule covers all public lands in the United States, whereas the states’ regulatory authority does not extend beyond their borders.

The BLM largely echoed these arguments in its response opposing the State of North Dakota’s separate preliminary injunction motion, adding that economic harm is not a basis for granting a preliminary injunction, even if North Dakota were to suffer some economic harm in terms of reduced tax income.

Opposition To State Governments’ Preliminary Injunction Motions By Environmental Groups

Sierra Club and the other intervening environmental groups also filed arguments opposing the preliminary injunction motions by Wyoming, Colorado, and by North Dakota. Those arguments largely parroted ones set forth by the BLM in its opposition briefs. Specifically, the environmental groups argued that the BLM has broad statutory authority to regulate oil and gas development on federal lands; the states failed to show that they will suffer lost mineral or tax revenue due to the final rule; and that the public interest weighs against a preliminary injunction, since the BLM’s final rule will prevent drilling of new oil and gas wells using environmentally inadequate methods.

State Of Utah Joins The Fray

In addition, the State of Utah—which previously indicated its intent to intervene in the litigation—filed papers formally joining in the preliminary injunction arguments set forth by Wyoming, Colorado, and North Dakota.

Mineral Law Blog will continue to monitor and report on these legal developments as they progress.