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No Chance: Florida Congressman Wants to Revive Obama-Era Fracking Rule

Rep. Darren Soto (D-Fla.) introduced legislation (H.R. 436) this week seeking to reestablish an Obama-era rule for fracking on federal lands, a bill that stands virtually no chance of passing.

The rule was repealed by the U.S. Department of Interior in December 2017 “to prevent the unnecessarily burdensome and unjustified administrative requirements and compliance costs of the 2015 rule from encumbering oil and gas development on Federal and Indian lands.”

In introducing his bill, Rep. Soto is trying to bypass a 2016 court ruling reaffirming that states, not the Bureau of Land Management or Environmental Protection Agency, have the authority to regulate hydraulic fracturing within their borders, even if it occurs on federal and Indian lands. The “Fracking Jurisdiction Act” (H.R. 484) would “grant the Secretary of the Interior and the EPA Administrator jurisdiction to regulate hydraulic fracturing,” according to Rep. Soto.

Duplicative and Unnecessary

Contrary to Rep. Soto’s assertion that his legislation would “solve that issue” of whether the federal government has jurisdiction to regulate hydraulic fracturing on federal lands, the U.S. District Court of Wyoming already determined that BLM and EPA do not have this authority. Judge Skavdahl’s 2016 ruling is pretty clear, stating, “…the Bureau of Land Management lacked Congressional authority to promulgate the regulations.” He continues,

“The Constitutional role of this court is to interpret the applicable statutory enactments and determine whether congress has delegated to the Department of Interior legal authority to regulate hydraulic fracturing. It has not.” (emphasis added)

More importantly, Judge Skavdahl explained the unnecessary and duplicative nature of the original rule:

“The Fracking Rule’s focus is on three aspects of oil and gas development – wellbore construction, chemical disclosures, and water management (id.at 16,128 & 16,129) – each of which is subject to comprehensive regulations under existing federal and/or state law.” (emphasis added)

A 2018 report from the Groundwater Protection Council reinforced this ruling:

“Regulation of oil and gas field activities is managed best at the level where regional and local conditions are understood and where rules can be tailored to fit the needs of the local environment. While some related oil and gas regulation does occur at the local and federal governmental level, on most issues the greatest experience, knowledge, and information necessary to regulate effectively rests with state regulatory agencies.” (emphasis added)

As Western Energy Alliance (WEA) president Kathleen Sgamma said when the rule was repealed,

“It was clear from the start that the federal rule was redundant with state regulation and politically motivated, as the prior administration could not point to one incident or regulatory gap that justified the rule. Western Energy Alliance appreciates that BLM under Interior Secretary Ryan Zinke understands this rule was duplicative and has rescinded it. States have an exemplary safety record regulating fracking, and that environmental protection will continue as before.” (emphasis added)

Burdening American Energy Producers

The BLM regulation was estimated to cost $345 million per year. Prior to the rule’s rescission, BLM estimated that rescinding the 2015 Fracking Rule would have cost savings ranging from $14 million to $34 million per year. But a comprehensive impact analysis by the Independent Petroleum Association of America (IPAA) and WEA found those savings would exceed $220 million annually. In fact, IPAA and WEA explain,

“By choosing a number of impacted wells within the actual range of completions over the last two years, and almost thirty percent lower than the number of wells that BLM used in its calculations, the Associations assert that their cost estimates are conservative and may understate the actual cost savings associated with rescinding the 2015 Rule.” (emphasis added)

The Associations break down this cost analysis as follows:

Source: IPAA, WEA comments to BLM, 2017

Conclusion

The fracking process is strictly regulated at the state level, and a federal court has affirmed that regulatory structure. Additionally, as IPAA president and CEO Barry Russell has said, there’s a legitimate case to be made that regulating fracking at the federal level would be duplicative:

“Our companies have already demonstrated that even without the implementation of the 2015 federal rule, we play a part in the solution to reducing carbon emissions. Under the strong environmental leadership of state regulators, clean-burning natural gas, unlocked by horizontal drilling and hydraulic fracturing, has helped the United States cut its carbon emissions to near 30-year lows. The Obama-era rule is nothing more than duplicative federal overreach that would limit access to public lands and cost independent producers tens of thousands of dollars per well to implement without any measurable environmental or safety benefits. Simply put, a federal hydraulic fracturing rule would hurt America’s energy dominance, economic growth, and well-paying U.S. jobs.” (emphasis added)

Tioga Energy Partners Sues New York State DEC Over Propane Frack

James Leonard President, National Association of Royalty Owners – New York Chapter   Tioga Energy Partners is suing New York State DEC over unconscionable delays in processing its application to do propane fracturing to recover natural gas. The Snyder Farm … Continue reading

The post Tioga Energy Partners Sues New York State DEC Over Propane Frack appeared first on Natural Gas Now.

Report Shows More Unconventional Potential In Anadarko Basin

The Scoop and Stack plays of Oklahoma’s Anadarko Basin may be the area’s claim to fame lately, but the unconventional potential of the long-producing conventional Simpson Group could enter the spotlight next. IHS Markit called the Simpson shale formation “one of the biggest yet-to-be-developed shale plays in the United States.” The sentiment was shared as part of a report in which the London-based global information provider raised unconventional reserves estimates for the basin to 16 billion barrels (Bbbl) of oil and 200 trillion cubic feet (Tcf) of gas. The higher estimate—which is more than pre-shale boom assessment of 495 MMbbl of oil, 27.5 Tcf of gas and 410 MMbbl of NGL from the U.S. Geological Survey—was the result of an 18-month-long IHS project that modeled and interpreted the Anadarko Basin’s geologic characteristics and its 41 stacked plays. The firm analyzed historical well and production data from more than 320,000 wells and proprietary software that IHS said allows analysts to use formation tops data to identify formations of completion intervals on wells.
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Decision in Martinez Case Imminent, Could Greatly Impact Colorado’s Oil and Gas Industry

The Colorado Supreme Court is expected to release its final decision on the Martinez vs. Colorado Oil and Gas Conservation Commission (COGCC) case, which could have far reaching effects on the state’s oil and gas industry.

The Denver Post is reporting that the ruling will be made public Monday.  There’s not a clear indication of which way the decision may go, but what is clear is the potential impact it may have on the state and industry.

It all started back in 2013 when youth activist Xiuhtezcatl Martinez and several other teenagers filed the lawsuit, backed by the lawyers at Our Children’s Trust (OCT).  OCT is funded and backed by deep-pocketed anti-fossil fuel foundations and has legal action brewing in all 50 states similar to Martinez vs. COGCC.  Their goal is to ban or suppress fracking and fossil fuel development wherever they can.

The plaintiffs sued the COGCC after the agency denied their request to pause all oil and gas development “unless the best available science demonstrates, and an independent third party organization confirms, that drilling can occur in a manner that does not cumulatively, with other actions, impair Colorado’s atmosphere, water, wildlife, and land resources, does not adversely impact human health and does not contribute to climate change.”

Currently, Colorado statute delineates a balancing test between the development of oil and gas and protection of health and safety.  The plaintiffs claim that the law doesn’t actually call for balance.

Shifting from a balance toward an exclusive focus on health and safety could mean the law will be interpreted more expansively to effectively shut down oil and gas production in the state that already has many regulations to mitigate health and safety concerns.  Imagine if activists were in charge of determining what an “adverse” effect is? And with a new framework, couldn’t any and all permits be challenged on the grounds of a possible “adverse” effect—real or imaginary?

The plaintiffs lost the first court battle, but got a favorable 2-1 ruling by the Colorado Court of Appeals. Afterward, then- Attorney General Cynthia Coffman appealed and asked the Supreme Court to hear the case, which it did in October.

During last year’s state legislative session, then-State Rep. Joe Salazar introduced a bill that would have codified the Court of Appeals decision.  Proponents of the bill cited half-baked studies to suggest concerns about health impacts.  Energy In Depth published an op-ed in the Denver Post explaining how these oft-cited studies are misleading and how Colorado’s own regulators and experts have called most of these studies “low quality.”  Ultimately, the bill died in committee by a bipartisan 8-3 vote.

Colorado’s newly elected governor Jared Polis said at the time that he supported Salazar’s bill and the Court of Appeals ruling at a rally last year.

“[O]f course I support the Martinez decision that says health and safety should be the primary concern for the COGCC [Colorado Oil and Gas Conservation Commission] in siting oil and gas. They need, and they are, operationalizing the Martinez decision. If the legislature wants to put that in statute, I would certainly sign that as well,” Polis said.

Voices from all over Colorado have spoken out against Salazar’s bill and the Martinez lawsuit.  An editorial in the Colorado Springs Gazette called the plaintiff’s position “unreasonable.”

“What the students asked for in their petition is beyond unreasonable. …  If we required as much of all other human activities, the state would need to forbid marijuana cultivation and consumption, farming, bicycling and most other forms of transportation. All human activity has a cumulative effect on the environment.”

Boulder District Attorney Stan Garnett, a Democrat, said that not appealing the Court of Appeals decision would be a “mistake.”

“I am 100% pro-environment and as concerned about fracking as anyone. But as a lawyer who has practiced for 35 years and appeared many times in the Colorado Appellate courts, I think it is a mistake not to seek Colorado Supreme Court review of the court of appeals decision in the Martinez v. COGC[C] case and the pressure being put on the Governor in that regard is misdirected. A court of appeals opinion is of some value as precedent, but not nearly as valuable as a Colorado Supreme Court Opinion. We have a good supreme court who may well uphold the Court of Appeals. Moreover, the Supreme Court will address this issue eventually one way or another and this looks like a pretty good record to present to them. Political pressure with regard to court opinions and decisions is rarely a good idea and would be much better focused at electing a legislature more inclined to listen to the public’s concerns.”

When asked by the Colorado Independent, Democratic U.S. Representative Ed Perlmutter said, “The proposed rule seems overly broad.”

After five years, the Colorado Supreme Court will seal the fate of the COGCC’s mandate and scope. Let’s hope it doesn’t hand over the reins to the activists.

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