States vs BLM: fracking standards

By The Bakken Magazine Staff | July 15, 2015

If the U.S. Bureau of Land Management’s hydraulic fracturing rule had gone into effect in June, North Dakota could have lost hundreds of millions of dollars in mineral royalties, and oil and gas development in the state would have been disrupted and delayed, according to Attorney General Wayne Stenehjem.

North Dakota along with Wyoming, Colorado and Utah filed suit in Wyoming federal district court to stop the rule from taking place, however. A hearing held before the day the rule would have been implemented has delayed the BLM’s fracking plan. U.S. Secretary of the Interior Sally Jewell said the rule would support safe and responsible fracking on public and American Indian lands by helping to protect groundwater by updating new requirements for well-bore integrity, wastewater disposal and public disclosure of chemicals. The states participating in the Wyoming lawsuit, along with the Independent Petroleum Association of America, the Western Energy Alliance and the Ute tribe of Utah, all said the new rules would interfere with existing rules and environmental standards.

Judge Scott Skavdahl said the rule was to be delayed until after the U.S. Department of Justice filed an administrative record on the lawsuit. The record will be filed July 22, after which time all parties involved have seven days to supplement their legal papers. A final decision on the rule could come in August.

“The court’s decision today was an important first step in holding BLM accountable to the standards the Administrative Procedures Act imposes on federal agencies,” said Mark Barron, attorney with BakerHostetler, arguing on behalf of IPAA and WEA.

Kathleen Sgamma, WEA vice president of government affairs said that BLM was “ill-prepared” to implement the new complex rule, noting that “the judge agreed that it makes no sense to implement an ill-conceived rule which could ultimately be overruled in court.”

“We look forward to strengthening our arguments,” Barron said, “and hope to have the temporary stay converted to a preliminary injunction later this summer.”


The BLM and the states hold  different positions on the same element of the proposed regulation. The BLM maintains the rule includes a process that allows states and tribes to request variances or opt out of provisions of the rule if they have equal or more proctective regulations in place. But, the states argue that such an element, or opt-out option, is  in place and that there is no true mechanism for state and tribal variances.