North Dakota Requests to Intervene in Lawsuit Challenging Federal Fracking Regulations

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[co-author: Shannon Morrissey - Law Clerk]

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 Indian lands.  The Final Rule supplements existing federal fracking regulations by imposing additional requirements such as chemical disclosure and wellbore cement integrity testing.

In its initial complaint, Wyoming argued 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.”  North Dakota agrees with Wyoming’s arguments and further states that the BLM “exceeded their statutory authority by seeking to regulate the underground injection of fluids and proppants under the Federal Land Policy and Management Act, and the Mineral Leasing Act.”  (Memorandum in Support of State of North Dakota’s Unopposed Motion to Intervene as a Petitioner, at p. 2-3.)

North Dakota’s motion to intervene emphasizes the significance of hydraulic fracturing in the state, and details the state’s existing fracking regulations.  North Dakota is the second largest producer of oil and natural gas in the country, and “[e]nergy producers in North Dakota extract over 1 million barrels of oil per day from hydraulically fractured horizontal drilling wells pursuant to a comprehensive state regulatory program.”  (Id. at p. 3.)  The BLM’s Final Rule impacts fracking in North Dakota because approximately one-third of oil production occurs on Indian lands and about 5% occurs on Federal lands in the state.  North Dakota practices “responsible development” of its natural resources, and the state’s “regulatory role and authority is diminished and displaced by the Final Rule,” which is inconsistent with the state’s regulatory scheme.  (Id. at p. 6.)

Lynn Helms, the Director of the North Dakota Industrial Commission (“NDIC”), Department of Mineral Resources filed a declaration in support of North Dakota’s unopposed motion.  In his declaration, he detailed the state’s fracking regulations, explaining that unique local conditions are considered when regulating oil and gas development.  Helms emphasized the inconsistencies between the BLM’s Final Rule and North Dakota’s regulations.  For example, he stated that there will be a six-month delay for operators on Indian and Federal lands because they must obtain a permit from the BLM and NDIC.

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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