The Vinson & Elkins Shale and Fracking Tracker
Our Shale and Fracking Tracker focuses on legal, regulatory and other newsworthy developments that affect our clients involved in recovering oil and gas from the emerging shale plays using the critical techniques of horizontal drilling and hydraulic fracturing, or fracking.
Our Fracking Tracker is a product of our Shale and Fracking Practice Group, a cross-disciplinary and international team led by senior members of our Litigation, Environmental, Transactional, and Intellectual Property practice groups. Visit our V&E Fracking Practice Group page to learn more about our attorneys and our practice in this dynamic area.
NEW Vinson & Elkins U.S. State Hydraulic Fracturing Resources
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June 23, 2016 - Federal Court in Wyoming Strikes Down BLM Fracking Rule
In a June 21 ruling, the United States District Court for the District of Wyoming set aside the Bureau of Land Management’s (“BLM”) comprehensive hydraulic fracturing regulations, holding that BLM lacks the statutory authority to regulate the hydraulic fracturing process. BLM promulgated a final rule in March 2015 that regulated wellbore construction, chemical disclosure, and water management for hydraulic fracturing operations on federal and Indian lands. The rule was scheduled to take effect in June 2015. States and industry groups challenged the rulemaking under the Administrative Procedure Act, and the court stayed the effective date of the rule before it went into effect.
BLM had claimed “broad authority” to regulate all oil and gas operations on federal and Indian lands under a bevy of statutes, but the court concluded that BLM’s authority under these statutes did not extend to “the kind of comprehensive rulemaking” aimed at the process of hydraulic fracturing embodied in its March 2015 rule. Rather, the court held that the Safe Water Drinking Act (“SWDA”) originally vested the Environmental Protection Agency (“EPA”) “with the authority and duty to regulate hydraulic fracturing on all lands, federal state and tribal,” but that Congress, in the Energy Policy Act of 2005, explicitly removed non-diesel hydraulic fracturing from EPA regulation under the SWDA. Pursuant to the court’s holding, BLM is now without the statutory authority to regulate the process of hydraulic fracturing, though it may appeal the court’s decision; indeed, the government had already appealed the court’s stay of the rule’s effective date to the Tenth Circuit Court of Appeals. Read the opinion in full here.
June 14, 2016 - New EPA Rule Prohibits Discharge of Unconventional E&P Wastewaters to POTWs
On June 13, EPA released its final rule prohibiting unconventional oil and gas well operators from discharging wastewater to publicly-owned treatment works (“POTWs”). The final rule only applies to unconventional oil and gas well operators; conventional wells and coalbed methane extraction facilities are unaffected. EPA’s preamble to the final rule acknowledges that the current industry practice for wastewater disposal does not include discharge to POTWs; indeed, in the preamble to EPA’s proposed rule, the agency could not identify a single current instance of an operator sending wastewater to a POTW. Rather, operators typically inject wastewaters underground, reuse or recycle them, or transfer them to centralized waste treatment facilities for disposal. Nonetheless, EPA has promulgated a final rule “to ensure that the current industry practice of not sending wastewater discharges from this sector to POTWs continues into the future.” The final rule is effective 60 days after its forthcoming publication in the Federal Register. Read the final rule is its entirety here.
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Hydraulic Fracturing Fluid Disclosure Requirements
Vinson & Elkins’ Shale & Fracking Practice Group has updated its comprehensive Hydraulic Fracturing Fluid Disclosure Requirements chart that summarizes state law for both current and proposed hydraulic fracturing fluid disclosure requirements. The chart updates the hydraulic fracturing fluid disclosure laws for Ohio, Oklahoma, and Pennsylvania. States that currently require disclosures related to hydraulic fracturing fluids include Arkansas, Colorado, Louisiana, Michigan, Montana, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, Texas, and West Virginia and Wyoming. States with proposed disclosure requirements include California, Idaho, Illinois, Nebraska, and New York. Additionally, Michigan is currently considering legislation to change its disclosure requirements. The chart also covers the Bureau of Land Management’s proposed hydraulic fracturing fluid disclosure requirements for drilling on federal lands.
The chart notes required disclosures, any trade secret or proprietary information protection provisions in the disclosure requirements, how the disclosure must occur, and when operators must make the required disclosures. Click here to view the chart. We will update the chart as new rules are proposed and adopted, so please check the website periodically for updates.