Wyoming sues Interior Department over rules for drilling on public land
Wyoming
filed a lawsuit Thursday challenging the U.S. Department of Interior's
new fracking rule, arguing the regulation exceeds the department's
authority.
The lawsuit, filed in the U.S. District Court
of Wyoming, contends Congress granted regulation of underground
injections like fracking to the U.S. Environmental Protection Agency,
which, in turn, delegates oversight to the states.
Gov. Matt Mead cast the rule as a violation of states' rights. Wyoming became the first state to regulate fracking in 2010.
"The
problem I see with what they’re doing is it seems to me a disincentive
for states to be proactive, to be responsible, to take leadership in an
area where, we think, they have exclusive legal authority," Mead said in
an interview Thursday.
Indeed Thursday's lawsuit caught some observers by surprise. The state's fracking rules have repeatedly been singled out for praise by federal officials.
Interior Secretary Sally Jewell said last week Wyoming has "in some cases rules that maybe more stringent than ours."
It was
widely expected Wyoming would apply for a variance allowed under the
new rule given that the federal program largely mirrors the one the
state has in place.
"It seems like a collaborative
approach working with the Department of Interior would be a better use
of the state’s resources than suing," said Shannon Anderson, a lawyer at
the Powder River Basin Resource Council, a Sheridan landowners group.
That
may still happen, but Mead argued the variance allowed for under the
rule is only partial, leaving companies drilling on federal land facing
duplicative regulations.
Wyoming would prefer a statewide
variance exempting it from the rule, Mead said, adding he remains
doubtful of the regulation's lawfulness.
"We’re hopeful
that whatever happens in the case, there is a recognition states like
Wyoming should be rewarded for their leadership, not be punished by
having additional layers of regulation," the governor said.
Federal
officials declined comment on the lawsuit. However, the agency appears
to have anticipated the state's argument. Underground injections like
fracking are governed under the Safe Drinking Water Act and Clean Water
Act and regulated by the EPA, which entrusts oversight to the states.
The fracking rule defers to EPA, states and tribes on questions related to surface water and groundwater, Interior officials outlined in comments posted in the Federal Register.
"The requirements of this rule do not interfere with those programs," the department wrote.
Hydraulic
fracturing, as fracking is officially known, is the practice of
injecting a mixture of water, sand and chemicals into a well to break
open oil and gas bearing rock.
Fracking helped fuel a
resurgence in American oil and gas production, but it also created
concerns. Environmentalists and landowners have raised questioned
whether the practice could contaminate groundwater and have sought to
see it policed or banned altogether.
Against that
backdrop, Jewell announced a new rule last week aimed at governing
fracking's application. The rule requires companies working on federal
land disclose the chemicals they use, test well integrity before and
after a frack job and safely dispose of fracking fluids.
The
majority of those measures are already required by Wyoming, with the
notable exception of well integrity tests before a frack job.
Industry
groups almost immediately challenged the rule, which is to go into
effect in June. The Independent Petroleum Association of America and the
Western Energy Alliance filed a lawsuit in the same Wyoming federal
court, arguing the government did not provide adequate justification for
its rule and underestimated the cost of complying with it.
"The
lack of justification, I think that is why the states, and Wyoming this
morning, have taking such umbrage," said Mark Barron, an attorney
representing the two groups. "They feel existing regulation has been
sufficient to lend environmental protection up to this point."
Drilling
on federal land accounts for a small fraction of American oil and gas
output, but the issue is of special importance in Wyoming. In 2013,
about 35 million barrels of oil, or half the state's production, was
pumped from federal land.
The top industry group in
Wyoming cheered the state's lawsuit. While the rule provides a variance,
it does not ensure state oversight, said John Robitaille, vice
president of the Petroleum Association of Wyoming.
States must apply for that variance, he noted.
"I
think we can agree the (Wyoming) Oil and Gas Commission has maybe a
little more history with how to precede, and has done a fine job
regulating this activity," Robitaille said.
Anderson, the
Powder River Basin Resource Council attorney, did not dispute the
state's regulation of fracking. The landowners group would support
Wyoming if it pursued a variance, she said.
But Anderson
argued the state's legal case stands on shaky ground. Wyoming will have a
difficult time proving everything in the Interior rule is covered by
the Safe Drinking Water Act, she said.
"I think it is
more evidence of the Mead administration fighting any rule that comes
from the Obama administration, without considering the value of the rule
to Wyoming’s air and water quality," Anderson said.
