Vol. 6, No. 8

Topics discussed in this week’s Report include:

  • Senate confirmed Oklahoma Attorney General Scott Pruitt as EPA administrator.
  • S. District Court rejected tribe’s request for Dakota Access temporary restraining order.
  • Ute Indian Tribe and Department of Interior scheduled to discuss settlement of BLM rule lawsuit.
  • Colorado Attorney General filed suit seeking rescission of Boulder drilling ban.
  • Pennsylvania DEP linked first series of earthquakes to hydraulic fracturing activity.

Senate confirms Pruitt as EPA administrator. Oklahoma Attorney General Scott Pruitt was confirmed to head the United States Environmental Protection Agency (EPA) on Feb. 17. As Attorney General, Pruitt joined lawsuits challenging several Obama-era EPA regulations, including the Clean Power Plan and the federal rule expanding the definition of waters of the United States under the Clean Water Act. During the election campaign, President Donald Trump made clear his opposition to those and other EPA regulations, and Pruitt’s confirmation is expected to clear the way for the Trump administration to announce executive orders aimed at reshaping EPA and targeting these regulations.

U.S. District Court rejects tribe’s request for Dakota Access temporary restraining order. The day after the U.S. Army Corps of Engineers (Corps) issued an easement allowing the Dakota Access Pipeline project to proceed, the Cheyenne River Sioux tribe sought a temporary restraining order seeking to block the final portion of the 1,172-mile pipeline and require the Corps to withdraw its easement. The tribe argues that the project will affect sacred tribal grounds near Lake Oahe, North Dakota. Attorneys for the pipeline consortium argued that the tribe’s argument is untimely and that the proposed development does not present an imminent threat that warrants a temporary restraining order. On Feb. 13, the District Court for the District of Columbia denied the tribe’s motion, allowing construction to proceed. The court will allow the parties to brief the tribe’s request for a preliminary injunction and present oral arguments on Feb. 28.

Ute Indian Tribe and Department of Interior discuss settlement of BLM rule lawsuit. The Ute Indian Tribe is scheduled to meet with the Department of Interior (DOI) this week to discuss possible settlement of its lawsuit regarding the 2015 federal hydraulic fracturing rule of the Bureau of Land Management (BLM). The tribe, along with Colorado, North Dakota, Utah, Wyoming and several groups, sued DOI shortly after issuance of the rule. The tribe argues that the BLM rule, which treats tribal lands and public lands uniformly, violates its sovereignty over tribal land and disregards the tribe’s own extensive oversight of oil and gas development in the Uinta Basin. The U.S. District Court for Wyoming set aside the rule in June 2016 and the case is being appealed to the Tenth Circuit Court of Appeals, with oral arguments scheduled for March 22. The tribe is hoping to obtain a settlement agreement similar to that obtained by the affiliated Southern Ute Indian Tribe, which settled with DOI in November 2016 after receiving a variance that allows tribal rules to apply when they are more stringent than the federal rules.

Colorado Attorney General seeks rescission of Boulder drilling ban. On Feb. 14, the state of Colorado filed a lawsuit against Boulder County seeking an order rescinding the county’s ongoing ban on the use of hydraulic fracturing to develop oil and gas. In a Jan. 26 letter to Boulder County, Colorado Attorney General Cynthia Coffman had warned that the county must rescind its hydraulic fracturing moratorium or face legal action from the state. In May 2016, the Colorado Supreme Court held that local bans in Longmont and Fort Collins conflicted with the state’s oil and gas statute and regulations and were therefore preempted. Following those decisions, the state’s position is that permanent and temporary bans are both in violation of state law. Boulder County had originally implemented a moratorium from February 2012 through May 2017 but, following the decisions, it shortened the time period. The county held hearings in November 2016 on draft regulations and voted to extend the moratorium until May 1 in order to complete work on the regulations. The state had set a Feb. 10, 2017, deadline for lifting the moratorium and, when it was not removed, filed suit.

Pennsylvania DEP links first series of earthquakes to hydraulic fracturing activity. Pennsylvania’s Department of Environmental Protection (DEP) concluded that there is a correlation between hydraulic fracturing and a number of small earthquakes that occurred in 2016 in western Pennsylvania’s Utica Shale play. While other states with significant oil and gas development, such as Ohio and Oklahoma, have studied whether increased use of hydraulic fracturing and disposal of associated wastewater in injection wells have contributed to seismicity in recent years, these events were considered a first for Pennsylvania. The earthquakes were recorded less than a month after nearby hydraulic fracturing operations commenced. The well operator was using a technique called zipper fracturing, which involves drilling two parallel wells simultaneously. This may cause more pressure near the wells than a typical hydraulic fracturing site. Following the seismic activity, the operator immediately ceased activity and reportedly has no immediate plans to resume drilling at the site.