A federal district court hearing in Denver yesterday put the spotlight back on the question of whether the federal government has the authority to regulate hydraulic fracturing, with attorneys representing several states and industry groups reaffirming the effective role that states already play in regulating oil and natural gas development.
The federal fracking rule, first issued by the Bureau of Land Management two years ago, would have imposed additional requirements on well casing integrity, wastewater management, and the disclosure of chemicals used in fracking. Immediately after it was finalized, the rule was met with litigation brought on by the Independent Petroleum Association of America (IPAA) and Western Energy Alliance, along with the states of Colorado, Wyoming, Utah and North Dakota, and the Ute Indian Tribe. After a federal judge struck down the rule in 2016, Earthworks and other environmental groups appealed the decision, and, yesterday, the Tenth Circuit Court of Appeals court in Denver heard oral arguments in the appeal – days after the BLM announced its decision to rescind the rule.
As Greenberg Traurig LLP attorney Paul Seby, representing the State of North Dakota, told the court, the rule would have encroached upon the state’s ability and authority to “regulate our own natural gas and oil produced on private land and state land.”
Colorado Attorney General Cynthia Coffman offered a similar reason for joining the other states, the Ute tribe, and industry groups in the initial lawsuit after BLM issued the rule. “[The rule] intruded on the state’s expressly granted legal authority to regulate hydraulic fracturing. Colorado does have robust rules in place to regulate fracturing,” Coffman told the Denver Post. “It is my responsibility to take a stand and protect our state’s rights when the federal government breaks the law.”
As BLM noted in a July 25 press release, the agency found that all of the 32 states with federal oil and natural gas leases already have regulations addressing fracking.
Using his state as an example, Seby explained to the three-judge panel that the state regulations governing oil and natural gas operations are comprehensive and stringent – so much so that the BLM rule was actually initially modeled after North Dakota’s. “It was flattering” in its initial iteration, the lawyer said, but not when it eventually devolved into a rule that ultimately conflicted with state regulations.
Following the hearing last week, IPAA spokesperson Dan Naatz reiterated industry’s long history of safe and responsible development:
“Hydraulic fracturing technology has been around since 1947. Industry has long-maintained that the federal government’s efforts are duplicative and unnecessary, as the states have a strong track record of protecting the environment and safeguarding the public for nearly 70 years. The Obama-era BLM rule sought to impose unnecessary burdens and new costs on small and mid-sized oil and natural gas producers without providing any corresponding environmental protections.”
While federal court proceedings are ongoing, states continue to regulate oil and natural gas development in a safe, effective, and thoughtful manner.