BISMARCK – The state of North Dakota will join a lawsuit seeking to stop the Bureau of Land Management’s new hydraulic fracturing regulations, a two-man Industrial Commission voted Tuesday.
Attorney General Wayne Stenehjem told Gov. Jack Dalrymple that Wyoming’s claims in its existing lawsuit parallel the interests North Dakota has, including the assertion that the BLM rule contradicts state jurisdiction.
If the motion to intervene is accepted, the state of North Dakota would become a party in the suit, which was filed Thursday in the federal district of Wyoming.
Regulators in oil and gas states like Wyoming and North Dakota balked at the Department of the Interior’s new rule for BLM regulation of fracking on federal and Indian lands when they were introduced last week, claiming it takes jurisdiction away from states that already have sound regulations in place. Officials and industry also say the rule will slow development of minerals.
BLM spokesman Mark Jacobsen directed a request for comment on the suit to the Department of Interior, which doesn’t comment on pending litigation, spokeswoman Jessica Kershaw said.
Stenehjem also briefed Dalrymple on several other federal laws, including the Safe Drinking Water Act and the Mineral Leasing Act, that he said the new underground injection regulations contradict.
Under the Administrative Procedure Act, courts are required to stop any agency action that contradicts or exceeds statutory jurisdiction – in this case, North Dakota’s jurisdiction over water supply and produced water disposal.
The rule is set to go into effect June 1. The Department of the Interior has offered for states to apply for variances from the law where their regulations meet or exceed the new federal law. The BLM decides if the state’s measure is sufficient. States can also enter into memorandums of understanding with BLM for regulation.
Stenehjem said BLM officials have reached out to both Wyoming and North Dakota about the possibility of a memorandum, and it’s undetermined if that will work.
Stenehjem and Dalrymple also voted to authorize the Department of Mineral Resources to spend money on the litigation from a Department of Mineral Resources fund set aside for that purpose.
“It seems like this is the sensible thing to do,” Dalrymple said. “I think that Wyoming is a good case to intervene in. They have a kind of similar perspective on the situation, and that’s always helpful.”
The state plans to file a motion to intervene in Wyoming’s suit today, Stenehjem said, adding it’s “highly likely” North Dakota will be allowed to be a party.
Wyoming Attorney General Peter Michael didn’t return a request for comment on Tuesday.
Stenehjem said a downside to the state filing its own suit is that it could later be combined with similar cases in other states, leaving North Dakota less control over the outcome.
Two oil and gas industry groups were the first to file a lawsuit against the rules, but Department of Mineral Resources Director Lynn Helms said the commission was hesitant to join an industry suit.
He said intervening in Wyoming’s suit ensures North Dakota has a seat at the table in any future negotiations or settlement.
He pointed out Wyoming’s federal lands are more often large swaths, versus North Dakota’s “polygons” scattered throughout the state. And while North Dakota’s freshwater only goes about 2,500 feet deep, in Wyoming it reaches depths of 10,000 feet.
Agriculture Commissioner Doug Goehring, the third member of the commission, was absent from the special meeting because he was in China on a North Dakota Trade Office trade mission.
Dalrymple urged Stenehjem to reach out to the Three Affiliated Tribes as soon as possible for their stance on the litigation, since Fort Berthold Indian Reservation makes up roughly a third of the state’s oil production.
North Dakota Petroleum Council President Ron Ness said the group is happy the state took this step.
“Certainly, I think the position that the industry has held is that this essentially duplicates what the states already do,” he said. “The agencies already have substantial delays in the workload that they currently have, they struggle to keep up. This is just an additional burden on staff resources to duplicate what states are doing.”
He said the NDPC is still exploring its own options for a lawsuit.
“I must say I find this whole situation very frustrating,” Dalrymple said. “I think BLM would say, in casual conversation with us, that they are impressed with the rules that we have developed for hydraulic fracturing.”