States Move to Block Federal Fracking Rules While Lawsuit Moves Forward

Contributed by Caroline Toole

The litigation over a federal agency’s new rules on hydraulic fracturing (“fracking”) continues to heat up, with the plaintiff state governments moving for a preliminary injunction that would delay the rules’ implementation.  As previously reported, in March, the federal Bureau of Land Management (“BLM”) issued rules governing fracking on federal and tribal lands, which are set to take effect on June 24. The states of North Dakota, Wyoming, and Colorado filed suit against the agency, arguing that Congress did not empower the BLM to regulate fracking.

The states have now moved for a preliminary injunction that would prevent the BLM from implementing the rules before the court adjudicates the states’ claims. A preliminary injunction is a standard means for a party to prevent the adverse party from changing the status quo while litigation is pending. To prevail on their motion, the states must show that they are likely to prevail at trial, and that they will be irreparably harmed if the rules go into effect in the meantime.  In court filings, North Dakota specifically argued that the rules will cost it $300 million in mineral royalties and tax income this year alone.  Additionally, the state emphasized that it will lose 1,900 jobs as energy companies pull out of the state.  All three states will plead their case for a preliminary injunction at a hearing set for June 23, the day before the rules are to take effect.

We will continue to monitor this case, and the changing regulatory landscape, as developments continue.