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The battle for control over the regulation of oil and gas activities, particularly fracking, between state and local governments has played out in courtrooms and legislatures across the country in recent months. In recent days, however, new federal regulations have set the stage for new wrangling over control of the regulation of fracking, pitting state governments against the federal government.
On March 26, 2015, the Secretary of the Interior announced the U.S. Bureau of Land Management's Hydraulic Fracturing Rule, which applies to activities on federal and tribal lands and is to take effect in 90 days. The response from many in the oil and gas industries in opposition to the Rule was both predictable and swift. In fact, two industry groups almost immediately filed suit in Wyoming federal court to challenge the BLM's Rule.
Perhaps less predictable was the response of some impacted states. Promptly following the Rule's announcement, the State of Wyoming filed a separate suit in the U.S. District Court in Wyoming also challenging the Rule, asserting, among other arguments, that the Rule impermissibly conflicts with the Safe Drinking Water Act and interferes with the state's regulations over fracking.
And now North Dakota has stated its intent to join the Wyoming lawsuit. In making the announcement of its joining the Wyoming-initiated action, North Dakota's attorney general foreshadowed the possibility of more states joining the action: "We realize that the state of Wyoming and North Dakota and perhaps other states similarly situated may want to join together and share some resources and make sure we are making the same argument and hopefully getting the same result,” said Attorney General Wayne Stenehjem.
Where does that leave the regulation of fracking? Largely in a "state" of litigation-induced chaos; chaos exacerbating uncertainty for an industry already rocked by uncertainty.
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