How IOGCC Spawned the Lawsuit That Just Overturned BLM Fracking Regulations on Public Lands

Originally published at DeSmogBlog.

By Steve Horn

In a ruling on the Obama Administration’s proposed regulations of hydraulic fracturing (“fracking”) on U.S. public lands, U.S.District Court for the District of Wyoming Judge Scott Skavdahl — a President Obama appointee — struck down the rules as an illegal violation of the Energy Policy Act of 2005.

Filed in March 2015 by first the Independent Petroleum Association of America (IPAA) and Western Energy Alliance and then the State of Wyoming (soon joined by North Dakota, Utah and Colorado), the industry and state lawsuits would soon thereafter merge into a single lawsuit. The merger symbolizes the origins of the lawsuit — the 2014 Interstate Oil and Gas Compact Commission (IOGCC) annual meeting in Columbus, Ohio.

IOGCC, a collective of state-level oil and gas industry regulators or other official state representatives appointed by governors (sometimes lobbyists or industry executives), merges together industry interests and regulators by bringing them to the table at biannual meetings and providing a network through which to maintain year-round communications and coordination.

The majority of IOGCC’s at-large members work for the oil and gas industry as lobbyists and executives. And like theAmerican Legislative Exchange Council (ALEC), IOGCC members propose and pass model resolutions.

At the 2014 Columbus meeting attended by DeSmog, IOGCC’s resolutions committee convened to discuss what to do about the then-proposed U.S. Department of Interior regulation of fracking on public lands. Although a resolution did not pass out of the committee — one was deliberated upon but ultimately tabled until the May 2015 IOGCC business meeting held in Salt Lake City, Utah — an action plan did arise.

That plan called for resolutions committee member Lynn Helms, North Dakota’s official state representative to IOGCC and the head of its Industrial Commission (and former long-time employee of Hess Corporation), to contact U.S. Sen. John Hoeven’s (R-ND) legal counsel and chief-of-staff — Ryan Bernstein — and formulate a plan to stall or block the proposed rules. Emails obtained under North Dakota’s Open Records Statute show that indeed, Helms contacted Bernstein to get the ball rolling  to do just that.

IOGCC Fracking Public Lands

Image Credit: North Dakota Industrial Commission

Months later, IOGCC’s deputy director Gerry Baker emailed public lands committee members on March 24, 2015 to check in on the status of congressional activity on the proposed resolutions. Helms responded to the email, saying he had emailed Bernstein on March 3 and that he is “trying to get an answer to me by end of the month.”

On the same day IPAA filed its lawsuit on March 20, 2015, Hoeven’s office issued a press release denouncing the BLM’s final rule.

“We have long supported a states-first approach to hydraulic fracturing, recognizing that states have a successful record of effectively regulating hydraulic fracturing with good environmental stewardship. Now, however, the Interior Department is imposing a federal regulation that duplicates what the states have been doing successfully for decades,” stated Hoeven. “We encourage the BLM to work with states and defer to the regulatory programs they have put in place with a long and successful track record.”

Bernstein did get an answer on April 10, 2015 in the form of a memorandum addressed to Hoeven (formerly chairman forIOGCC when he served as North Dakota Governor) and Bernstein from the Congressional Research Service (CRS) obtained under Utah’s Government Records Access and Management Act. That memo concluded that states, according to the research conducted by CRS legislative attorney Alexandra Wyatt, do not possess legal authority to have regulatory duties transferred to them as it pertains to fracking on U.S. public lands.

Image Credit: Congressional Research Service

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