States, gas industry: Feds do not have power to regulate fracking

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The federal government overstepped its authority by issuing a rule to regulate hydraulic fracturing, according to several states and the gas industry.

In briefs filed in their lawsuit against the Interior Department’s fracking rules, the states and industry groups accuse Interior’s Bureau of Land Management (BLM) of claiming overly broad authority over oil and natural gas drilling on federal land.

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“In promulgating the BLM Rule, the BLM insists, for the first time, that it has the authority to regulate hydraulic fracturing on federal and Indian lands,” North Dakota wrote in its brief, adding that when Congress prohibited the Environmental Protection Agency from regulating fracking in 2005, it clearly intended to include all federal agencies.

“Absent a specific grant, the BLM cannot demonstrate congressional intent to alter the more specific provisions of the [laws] or the longstanding balance of power under which North Dakota has primary responsibility over land and water use,” the state said. “The BLM cannot make an end-run around Congress’ clear intent and infringe upon North Dakota’s unmistakable sovereign interest in regulating hydraulic fracturing.”

North Dakota, the other states and the industry groups are asking a Wyoming federal court to overturn the fracking standards that BLM released a year ago, which apply to federal and American Indian land that is leased to energy companies.

BLM wrote the rules in an attempt to update its standards to account for fracking, in which drillers inject fluids at high pressure into wells to break rock formations and release more oil or gas. About 90 percent of the wells on federal land are fracked.

The standards focus on three areas: the integrity of well casing, disclosure of chemicals in fracking fluid and proper disposal of waste fluids.

The briefs filed late Friday are the opening volley in the court fight over the merits of the rule. The regulation is already on hold, thanks to a Wyoming court injunction issued in September.

In their own joint brief in the case, Wyoming, Colorado and Utah said the rule “exceeds the Bureau’s statutory jurisdiction, conflicts with the Safe Drinking Water Act and the Energy Policy Act of 2005, and unlawfully interferes with state hydraulic fracturing regulations.”

The Independent Petroleum Association of America and the Western Energy Alliance used their brief to attack the specific provisions of the rule, saying that BLM showed a clear misunderstanding of the oil and gas industry and didn’t properly account for the costs of its standards.

“Ignoring comprehensive comments in the record detailing the technical and legal problems of earlier proposals, BLM has arbitrarily issued a rule that lacks justification, cannot be administered technically, exceeds the agency’s regulatory authority, and violates federal law,” the industry groups said.