BISMARCK - North Dakota may sue the federal government over its new rules regulating hydraulic fracturing on federal lands in the state.
The rules -- the federal government’s first regulation of fracking -- are unnecessary or inapplicable to North Dakota’s geology or duplicate existing state rules, state Department of Mineral Resources Director Lynn Helms told the North Dakota Industrial Commission on Tuesday. The Independent Petroleum Association of America and the Western Energy Alliance have already filed a lawsuit against the Bureau of Land Management and Interior Secretary Sally Jewell in federal court in the district of Wyoming, seeking to enjoin the rule.
“This is the BLM hydraulic fracturing rule,” Helms said, slapping the 397-page document, which includes responses to public comments, on the table in the governor’s conference room at the state Capitol on Tuesday.
Fort Berthold Indian Reservation represents 33 percent of the state’s oil production, with other federal lands making up another 10 percent.
“So we’re talking over 40 percent of our 1.2 million barrels a day is at risk here,” Helms said.
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In allowing BLM to control where water for fracking comes from and how it’s transported, and, on the other end, where fracking wastewater goes and how it gets there, the rule may obstruct state jurisdiction, Helms told NDIC members.
“They’re getting into your Water Commission, and they’re getting into your Department of Transportation,” he said.
The broad, three-page federal lawsuit filed in Wyoming calls the rule “a reaction to unsubstantiated concerns” and alleges it causes “unnecessary burdens” to states because of duplication or by curtailing state jurisdiction. Commissioners discussed intervening in this lawsuit, but Helms said after the meeting that the state’s own lawsuit would be the best course of action because it would be “more North Dakota-centric.”
If the state doesn’t file its own lawsuit, he told commissioners, it should get involved in another suit so it’s involved in any settlement agreement.
“We can’t have a settlement impact that much of North Dakota without a seat at the table,” he said.
Industrial Commission voted for Attorney General Wayne Stenehjem’s office to look at all of the legal options for fighting the new rules. Stenehjem sits on the commission with Gov. Jack Dalrymple and Agriculture Commissioner Doug Goehring.
“Whether it is something that we can all band together or whether our situation is so unique that we need to pursue our own (lawsuit) is something that we need to determine,” Stenehjem said.
The rules go into effect June 1, leaving the state little time to act.
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The money for litigation will come from $1 million in the Department of Mineral Resources’ budget for legal challenges, spokeswoman Alison Ritter said.
Dalrymple said he considers the rules involving fracking source water and wastewater to be direct conflicts with the jurisdiction of the State Water Commission and the state Department of Health.
“We need to take action,” he said.
