[co-author: Jenny Suh - Summer Associate]

On the heels of a preliminary injunction motion filed in the action by two industry groups challenging the federal Bureau of Land Management’s (BLM) final rule regulating hydraulic fracturing on public lands, the states of Wyoming and Colorado likewise filed a preliminary injunction motion in their related case last Friday.

In their brief, the states called into question the validity of the BLM’s final rule by highlighting three issues.  First, the states contend that the Congressional authority relied upon by the BLM in promulgating its final rule does not authorize hydraulic fracturing regulation.  Instead, the states submit that the Safe Drinking Water Act and the 2005 Energy Policy Act granted authority to regulate hydraulic fracturing practices directly to the states.  As a result, the states argue, the BLM’s final rule exceeds the agency’s jurisdictional authority.

Second, the states contend that the final rule will cause irreparable harm by:

• Creating an overlapping federal regime that interferes with existing state regulations concerning groundwater safety;
• Disallowing variance requests from being subjected to administrative appeal, thereby preventing states from being assured the BLM will not arbitrarily modify or rescind variances; and
• Pushing operators to drill on private land in order to avoid the increased time and cost of obtaining public land permits, which will reduce tax income for states with a large amount of public lands.

Third, states contend that a preliminary injunction would support the public interest, since states are more flexible and efficient in reviewing permits for approval.

As a result, the states maintain they are likely to succeed on the merits of their claim, and asked the court to preserve the status quo by entering an order enjoining BLM’s final rule from taking effect until the litigation is resolved.

The BLM will submit arguments responsive to those set forth by the states and the industry groups on June 12.  A hearing on both preliminary injunction motions is scheduled for June 23.

It is also expected that the State of North Dakota, which previously intervened in the lawsuit, will submit its own preliminary injunction motion within the next week.

In another development, several environmental groups—including Sierra Club and The Wilderness Society—filed a motions to intervene in both the industry’s and the state governments’ consolidated cases, and seek to defend the BLM’s final rule.  The groups contend they have a legally protected interest in the BLM’s actions impacting public lands because they were directly involved in adopting the final rule, and the final rule would protect them and their members from the impacts of oil and gas development.  They also argue that the BLM cannot adequately represent the groups’ interests because it has a statutory mandate to manage public lands for “multiple use[s],” while the environmental groups are focused solely on conservation, health, and safety.

Mineral Law Blog will continue to monitor and report on these legal developments as they progress.