Featured Expert Column – Environmental Law and Policy
By Samuel B. Boxerman, Sidley Austin LLP with Katharine Falahee Newman, Sidley Austin LLP
In a twist on the typical case addressing local oil and gas bans, the Western District of Pennsylvania struck down a Grant Township, PA ordinance finding the law impermissibly stripped Pennsylvania General Energy Co. (PGE) of its constitutional rights. The decision, Pennsylvania General Energy Co. v. Grant Township, is an important and unique precedent for the rights of a corporation to conduct a lawful business in the face of local opposition. Continue reading
By Mark R. Robeck, Kelley Drye & Warren LLP. Mr. Robeck is a Partner in the firm’s Washington, DC office and a contributor to its Fracking Insider blog.
In 2016, the Sierra Club filed suit in Oklahoma alleging that use of state-permitted deep wastewater injection wells was causing increased seismic activity—both in frequency and severity. Sierra Club v. Chesapeake Operating, LLC, et al., Case No. CIV-16-134-F, United States District Court for the Western District of Oklahoma.
In an April 4, 2017 Order the court dismissed the case, declining to exercise jurisdiction because doing so would interfere with the state regulators’ efforts to address the alleged increased seismic activity from wastewater injection. Continue reading
A February 8 post, Kudos to Colorado AG for Rebuking Boulder County on Its Fracking Moratorium, discussed a letter Colorado Attorney General Cynthia H. Coffman sent to the Boulder County Board of County Commissioners warning that the state would file suit if the county did not end its moratorium on new oil and gas development permits by February 10.
After giving the Board four extra days to comply, Attorney General Coffman filed suit against Boulder on February 14. The suit alleges that the moratorium conflicts with the Colorado Oil and Gas Conservation Act. The state supreme court held in a 2016 decision that the Act preempted anti-fracking rules adopted by two other Colorado localities.
The complaint can be viewed here. Upon filing suit, Attorney General Coffman stated:
The Boulder County Commissioners responded [to the Attorney General’s letter] that they needed yet more time to draft regulations and prepare to accept new applications for oil or gas development. Because five years is more than reasonable time to complete such a project, and because Boulder County continues to operate in clear violation of Colorado law, the Attorney General today is filing suit in Boulder County District Court to compel compliance. It is not the job of industry to enforce Colorado law; that is the role of the Attorney General on behalf of the People of Colorado. Regrettably, Boulder County’s open defiance of State law has made legal action the final recourse available to the State.
In the last several years, municipal and county governments have thrust themselves into some of the nation’s most contentious legal-policy debates by imposing regulatory mandates and restrictions on business conduct. New York City famously tried to shrink soda serving sizes. San Francisco has dictated that ads for “sugary drinks” include health warnings. Philadelphia has prohibited businesses from asking job applicants about their salary history. And numerous cities and counties have enacted restrictions or bans on oil and natural gas extraction from shale plays within their borders.
That last type of local regulation has instigated many battles between city or county government and state lawmakers. The latest fight—between the State of Colorado and the County of Boulder—is about to come to a head. In a January 26 letter sent to Boulder County’s three commissioners, Colorado Attorney General Cynthia H. Coffman has given the county until Friday, February 10 to rescind its “moratorium” on accepting new applications for oil and gas development. If the county fails to act, Attorney General Coffman has pledged to file suit. Continue reading
*Grace Galvin, a Communications Associate at WLF who received her JD from Charleston School of Law and is pursuing a Master’s in Journalism and Public Affairs at American University, contributed significantly to this post.
“A blessing” is the description Franklin Bess used to convey his feelings toward the oil and natural gas industry, as long as the drilling is American-based. He and his wife, Katie Bess, are the proud owners of The Williamson Ranch in west Texas, land that has been in Katie’s family for five generations.
In an interview with Ezra Levant, a Canadian broadcaster and “ethical oil” advocate, the Bess family expressed relief in April 2015 when an oil-and-gas exploration and production company bought their expiring lease with Tall City Exploration. This sale has provided the income necessary to allow the Bess family to maintain the ranching life—a rarity today—and pass their land on to future generations.
Many ranching families near Big Spring, Texas have similar stories, and they have the Permian Basin shale that lies beneath their town, and the use of such extraction techniques as hydraulic fracturing, to thank for their livelihoods. Unfortunately, environmental activists, with the help of the federal government, have generated a narrative that paints hydraulic fracturing, or “fracking,” as a destructive and offensive process. Continue reading
In an August 26, 2016 Washington Legal Foundation Legal Backgrounder, Fighting the Frack Attack: The State of State Preemption Efforts, Kelley, Drye & Warren LLP attorneys Wayne D’Angelo and Travis Cushman document how the highest courts in four states have addressed local government limits on highly successful oil and gas extraction methods, such as hydraulic fracturing and horizontal drilling. The most recent state court to consider the issue, the Colorado Supreme Court, held that two local governments’ limits on extraction techniques conflicted with the state’s oil and gas regulatory regime.
The paper noted that at the time of its release, it was unclear whether the Colorado Supreme Court’s rulings would remain in force because “Colorado is at the epicenter of a heated ballot initiative to change the state’s oil and gas laws.”
The Denver Post reported August 29 that the sponsors of two ballot initiatives related to oil and gas extraction failed to collect the number of requisite signatures for a November 8 vote. One measure would have prohibited new oil and gas facilities within 2,500 feet of homes; the other would have expanded local governments’ authority to restrict hydraulic fracturing. The Colorado Secretary of State’s random sampling of signatures for the two initiatives not only showed that their sponsors came up short of the 98,492 needed, but also that some of the signatures may have been forged.
Activists hostile to domestic energy development also failed in 2014 to place similar measures before Colorado voters.
Featured Expert Column – Environmental Law and Policy
By Samuel B. Boxerman, Sidley Austin LLP
On July 15, 2016, North Dakota became the first petitioner to challenge the Obama Administration’s unprecedented Clean Air Act rule governing methane emissions from new and modified oil and gas sources (“Methane Rule”).1 More petitions are anticipated.
The rule—also referred to as the “QuadOa” rule,2—sets emissions standards for methane at certain new and modified upstream and midstream oil and gas sources and requires owners and operators of affected sources to implement a leak-detection program to identify and repair fugitive emission leaks. Home to the Bakken Shale formation and now the nation’s second largest oil-producing state, North Dakota has a substantial interest in the burdens and benefits of the rule. Continue reading