North Dakota And Others Look To Challenge New Federal Fracking Regulations

Stoel Rives LLP

Less than one week after the Bureau of Land Management (BLM) released its Final Rulegoverning hydraulic fracturing practices on federal lands, North Dakota will proceed toexplore 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, Attorney General Wayne Stenehjem, and Agriculture Commissioner Doug Goehring—voted unanimously to investigate potential legal action against the Final Rule, including the possibility of filing a lawsuit on its own or with others states, or joining an existing industry lawsuit filed immediately following release of the regulations.

The new BLM hydraulic fracturing regulations—set to take effect on June 1—supplement existing regulations by requiring operators to submit additional information with its drill permit application, including plans to monitor cement barriers lining wells, provisions to store waste fluid, and disclosure of chemicals used in the hydraulic fracturing process.  Though these regulations do not effect hydraulic fracturing on private or state-owned lands, they will impact federal and tribal lands.

The BLM’s North Dakota Field Office currently oversees more than 4 million acres of federal, tribal, and other public lands in the state.   It also manages about 2,000 oil and gas leases, with additional trust responsibility for more than 3,000 leases on the Fort Berthold Indian Reservation and other Indian tracts.

On March 20—the same day the BLM’s Final Rule was announced—the Independent Petroleum Association of America and the Western Energy Alliance filed a petition for reviewunder the Administrative Procedure Act in Wyoming federal district court.  Among their allegations, the industry groups stated that the “BLM’s rulemaking represents a reaction to unsubstantiated concerns and the administrative record lacks the factual, scientific, or engineering evidence necessary to sustain the agency’s final rule.”  As such, the groups asked the court to “find the rule invalid and set aside the challenged agency action.”  The petition is available here.

*Update: shortly after this post went live, news came that the state of Wyoming had filed a lawsuit (PDF) challenging the BLM’s Final Rule.  (Wyoming v. U.S. Dept. of Interior, Case No. 15-CV-43-5 (Mar. 26, 2015).)  Wyoming is the first state to challenge the regulations.  Among other claims, Wyoming argues that the BLM’s Final Rule “exceeds the agency’s statutory jurisdiction, conflicts with the Safe Drinking Water Act, and unlawfully interferes with the State of Wyoming’s hydraulic fracturing regulations.”

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

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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