On June 21, 2016, the U.S. District Court for the District of Wyoming (“District Court”) set aside the U.S. Department of the Interior, Bureau of Land Management’s (“BLM’s”) “Hydraulic Fracturing on Federal and Indian Lands” rule, finding that the rule exceeded BLM’s statutory authority. Challengers to the rule previously succeeded in obtaining a preliminary injunction in September 2015, pending a final decision on the merits of the case. In the merits decision issued this week, the District Court held that “Congress has not delegated to the Department of Interior the authority to regulate hydraulic fracturing.”
The BLM rule would have, among other requirements, mandated that operators planning to conduct hydraulic fracturing on federal and Indian lands: (1) submit detailed information regarding the proposed operation, including wellbore geology information and the estimated length of fracture propagation; (2) design and implement a casing and cementing program that meets certain best management practices and performance standards; (3) manage recovered fluids in rigid enclosed, covered, or netted and screened aboveground storage tanks, with very limited exceptions; and (4) disclose the chemicals to be used in hydraulic fracturing to BLM and the public, with limited exceptions for trade secrets.
BLM is expected to appeal the District Court’s decision to the U.S. Court of Appeals for the Tenth Circuit.
The federal Bureau of Land Management (BLM) has taken another step towards finalizing updated regulations for hydraulic fracturing on federal and Indian lands, by sending a revised final rule to the White House Office of Management and Budget (OMB) for review. The revised rule was published in the Federal Register in May 2013. During the subsequent public comment period, BLM received a large number of comments on the rule from both public interest organizations and industry groups. Any revisions will not become public until OMB completes its review and the final rule is published, perhaps by late fall of this year. The rule would apply to hydraulic fracturing operations conducted on the approximately 700 million acres of federal mineral estate and 56 million acres of Indian mineral estate overseen by BLM.
The Department of the Interior has released its Statement of Regulatory Priorities, a subsection of which highlights the Bureau of Land Management (BLM)’s priorities on energy issues including hydraulic fracturing. BLM’s stated highest regulatory priorities include revising antiquated hydraulic fracturing regulations, preventing waste of produced oil and gas, and ensuring a fair return to the American taxpayer for oil shale development. BLM’s stated priorities also address solar and wind energy projects and the management of waste mine methane. The current regulatory agenda of the Department is also publicly available.
In order to fill vacancies at the Department of the Interior, President Obama recently nominated Janice Schneider as Assistant Secretary for Land and Minerals Management, a move welcomed by Secretary Sally Jewell. Currently an environment and energy lawyer in private practice in Washington, D.C., Schneider, if confirmed, will oversee all energy development activities on federal lands and supervise the Bureau of Land Management (BLM), the Bureau of Ocean Energy Management (BOEM), and the Bureau of Safety and Environmental Enforcement. Also nominated were Neil Kornze as Director of the BLM and Tommy Beaudreau as Assistant Secretary for Policy, Management, and Budget. Because Beaudreau currently serves as head of the BOEM, Secretary Jewell is expected to pick his replacement upon confirmation of his new role.
The Bureau of Land Management’s revised proposal to regulate hydraulic fracturing on federal lands remains controversial, inviting more than 600,000 comments from 250 public interest groups calling for stricter regulations, as well as strong opposition from industry groups such as the American Petroleum Institute and the Western Energy Alliance. BLM released the revised proposal in May. The deadline for public comment, which was extended once, passed last Friday, August 23rd. BLM will review the comments before publishing a final rule. BLM holds 700 million acres of federal mineral estate and 56 million acres of Indian mineral estate.
Updating previous posts, the Western Energy Alliance (WEA) recently released an economic analysis in response to the Department of the Interior, Bureau of Land Management’s (BLM) latest version of its proposed fracking rules for wells on federal lands. Bloomberg BNA reports that WEA believes that although positive changes were made in the latest revised rules, BLM did not consider a number of factors, such as initial delay costs associated with implementing the rule in light of current staffing levels. BLM estimated that its revised proposal would cost industry between $12 million to $20 million annually, which is substantially lower than the estimated costs of the original proposal ($37 to 44 million annually). However, WEA found that BLM’s latest proposal will still have a significant financial impact on the industry. WEA and other industry groups have urged BLM to abandon the proposed rules.
The U.S. Department of the Interior has extended the comment period by 60 days for the revised proposed rules for hydraulic fracturing on federal lands. Interior Secretary Sally Jewell indicated that various interest groups had requested more time to review the 171-page proposal issued in May. The comment period was set to expire on June 24, 2013, but comments will now be accepted through late August.
The federal Bureau of Land Management’s proposal for regulating hydraulic fracturing on federal lands, which was submitted to the White House Office of Management and Budget (OMB) for review in January 2013, is expected to be released soon in the form of a new draft proposal. During a teleconference on April 30, 2013, U.S. Department of Interior Secretary Sally Jewell remarked that the agency will provide a new opportunity for public comment rather than finalizing the existing draft proposal. The existing draft would address well integrity, wastewater management, and the disclosure of non-proprietary chemical information. Notably, the existing draft was sent to OMB before Sally Jewell, a former oil industry engineer who is familiar with fracking, was confirmed as Secretary of the Interior.
As we anticipated in a previous post, the U.S. Department of the Interior, Bureau of Land Management (BLM), has reportedly submitted to the White House Office of Management and Budget its revised proposal for regulation of hydraulic fracturing on federal lands. The original proposal released in May 2012 prompted significant criticism from industry representatives, state regulators, and environmental groups alike. BLM expects to release its new proposal sometime in the first quarter of 2013.
The U.S. Department of the Interior Bureau of Land Management (BLM) recently announced that it will revise its draft proposal to regulate fracking on federal lands. According to BLM, approximately 90 percent of wells drilled on federal and Indian lands utilize hydraulic fracking. BLM is seeking to address concerns raised in over 170,000 comments it received in response to its May 2012 proposal. Revisions will reportedly be sent to the Office of Management and Budget next week for review. BLM spokesman Blake Androff reportedly stated that the agency is improving the draft proposal “in order to maximize flexibility, facilitate coordination with state practices and ensure that operators on public lands implement best practices.” BLM expects to release the revisions by March 31, 2013, and will seek comments on the revised proposal.