Throughout the country, supporters and opponents of local fracking bans have engaged in a fierce debate over the legality of such legislation. Indeed, suits have been filed in California, Colorado, New York, Texas, and West Virginia to challenge anti-fracking measures enacted by localities. The majority of courts to consider the legality of these local ordinances have held that the anti-fracking measures are invalid. Yet another court has reached the same conclusion. In this latest case, the United States District Court for the District of New Mexico invalidated a fracking ban enacted by Mora County.
In 2013, Mora County adopted an ordinance that prohibited hydraulic fracturing within the county. Mora County’s anti-fracking measure also purported to remove the constitutional rights of corporations found violating the measures. In addition, the ordinance attempted to prohibit parties violating the measure from challenging the law or arguing that the measure is preempted. The ordinance stated that the doctrine of preemption would only be valid in those instances in which state or federal law did not weigh property rights as more important than the rights protected by the ordinance or when state or federal law gave the residents of Mora County greater protection than the ordinance.
Soon after the adoption of the ordinance, SWEPI, LP filed a lawsuit against Mora County, requesting that the court invalidate the measure. SWEPI argued that the fracking ban violated its substantive due process rights, the Equal Protection Clause, the First Amendment, and state law. In addition, SWEPI contended that Mora County lacked the authority to enact the ban.
The court primarily agreed with SWEPI. It held that the anti-fracking measure violated the Supremacy Clause because it conflicted with federal law. Moreover, the court found that the ordinance also contravened the First Amendment. The court also held that Mora County did not possess the authority to enact the anti-fracking measure.
Although the court ruled against Mora County, the court’s decision does not completely forbid future local ordinances that are less restrictive. Rather, the court noted that state law permitted localities to have concurrent jurisdiction with respect to some aspects of regulating oil and gas drilling. Other counties in New Mexico have already adopted legislation similar to that referenced by the district court. Sante Fe County has an ordinance that mandates oil and gas companies engage in extensive planning before initiating drilling.
Likewise, San Miguel County enacted an ordinance that requires companies to go through extensive planning before drilling and that also limits the areas in which companies may drill. If Mora County decides to not appeal the district court’s ruling, it will likely attempt to enact legislation that mirrors the approach of Sante Fe County and San Miguel County. Commentators have expressed concern that counties may not have the funds to enforce this type of legislation.
Read the decision.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Johnjerica Hodge (johnjerica.hodge@nortonrosefulbright.com or 713 651 5698) from Norton Rose Fulbright's Energy Practice Group.
Showing posts with label New Mexico. Show all posts
Showing posts with label New Mexico. Show all posts
Fracking dominates the November ballot
One of the most highly debated issues during the November election was the question of whether localities have the authority to enact fracking bans. Several cities throughout the country have attempted to enact prohibitions against hydraulic fracturing with varying degrees of success. Denton, Texas has become one of the latest cities to consider such a ban.
On November 4th, Denton residents voted on whether the city should enact a ban against hydraulic fracturing within the city limits. The measure passed with 59 percent of Denton residents voting in favor of the measure and 41 percent voting against it. The Denton City Council considered the measure initially; however, rather than enact the ban itself, the Council opted to place the ban on the ballot for the November elections. Denton currently has a moratorium in place banning drilling until January 20, 2015.
Several cities in California and Ohio also attempted to pass local bans against hydraulic fracturing. Specifically, fracking bans were on the ballot in the following localities: Santa Barbara County, California; San Benito County, California; Mendocino County, California; Athens County, Ohio; Gates Mills, Ohio; Kent, Ohio; and Youngstown, Ohio. Most of the proposed fracking bans were defeated. The majority of voters in San Benito County and Mendocino County voted in favor of the ban, but the anti-fracking measure was defeated in Santa Barbara. The anti-fracking measure was defeated in Gates Mills, Kent, and Youngstown, but voters in Athens County approved the fracking ban.
Multiple cities have already enacted prohibitions against hydraulic fracturing. Five cities in Colorado have passed ordinances prohibiting fracking, and several cities in California also have fracking bans. In addition, similar legislation exists in localities throughout New York, Hawaii, New Jersey, and New Mexico. Some cities have taken the alternative approach of enacting temporary prohibitions against hydraulic fracturing. Other cities in Texas may also follow Denton’s example. Anti-fracking groups in Alpine, Texas are attempting to garner support for a city ban on hydraulic fracturing.
Courts throughout the country have disagreed on whether localities can enact ordinances barring hydraulic fracturing. Whereas some courts have invalidated local fracking bans, other courts have upheld such local laws. Currently, there are legal challenges to similar local bans pending in California, New Mexico, and Ohio. Indeed, several landowners have already filed suit against Denton to challenge the city’s moratorium on drilling. Moreover, the day after the election, the Texas Oil and Gas Association filed a motion to stop the enforcement of the fracking ban. Although the law is not yet settled on the validity of local fracking bans, one thing is certain—the Denton ban will serve as precedent for other Texas cities considering fracking bans.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Johnjerica Hodge (johnjerica.hodge@nortonrosefulbright.com or 713 651 5698) from Norton Rose Fulbright's Energy Practice Group.
On November 4th, Denton residents voted on whether the city should enact a ban against hydraulic fracturing within the city limits. The measure passed with 59 percent of Denton residents voting in favor of the measure and 41 percent voting against it. The Denton City Council considered the measure initially; however, rather than enact the ban itself, the Council opted to place the ban on the ballot for the November elections. Denton currently has a moratorium in place banning drilling until January 20, 2015.
Several cities in California and Ohio also attempted to pass local bans against hydraulic fracturing. Specifically, fracking bans were on the ballot in the following localities: Santa Barbara County, California; San Benito County, California; Mendocino County, California; Athens County, Ohio; Gates Mills, Ohio; Kent, Ohio; and Youngstown, Ohio. Most of the proposed fracking bans were defeated. The majority of voters in San Benito County and Mendocino County voted in favor of the ban, but the anti-fracking measure was defeated in Santa Barbara. The anti-fracking measure was defeated in Gates Mills, Kent, and Youngstown, but voters in Athens County approved the fracking ban.
Multiple cities have already enacted prohibitions against hydraulic fracturing. Five cities in Colorado have passed ordinances prohibiting fracking, and several cities in California also have fracking bans. In addition, similar legislation exists in localities throughout New York, Hawaii, New Jersey, and New Mexico. Some cities have taken the alternative approach of enacting temporary prohibitions against hydraulic fracturing. Other cities in Texas may also follow Denton’s example. Anti-fracking groups in Alpine, Texas are attempting to garner support for a city ban on hydraulic fracturing.
Courts throughout the country have disagreed on whether localities can enact ordinances barring hydraulic fracturing. Whereas some courts have invalidated local fracking bans, other courts have upheld such local laws. Currently, there are legal challenges to similar local bans pending in California, New Mexico, and Ohio. Indeed, several landowners have already filed suit against Denton to challenge the city’s moratorium on drilling. Moreover, the day after the election, the Texas Oil and Gas Association filed a motion to stop the enforcement of the fracking ban. Although the law is not yet settled on the validity of local fracking bans, one thing is certain—the Denton ban will serve as precedent for other Texas cities considering fracking bans.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Johnjerica Hodge (johnjerica.hodge@nortonrosefulbright.com or 713 651 5698) from Norton Rose Fulbright's Energy Practice Group.
US geological survey researchers release findings on reports of induced seismicity in Colorado and New Mexico
Researchers with the US Geological Survey recently released a study claiming a link between wastewater injection and reported seismicity in the Raton Basin of Northern New Mexico and Southern Colorado. The researchers sought to explain a series of August-September 2011 earthquakes in the region and claimed that there was “strong evidence that [the] earthquake sequence [was] induced by fluid injection in the area.” They came to this conclusion in part because “earthquake rate change” over time appeared “to be solely coming from the area of the wells.”
This is the latest in a series of studies seeking to explain reported earthquakes near areas with oil and gas operations. Previous studies have been conflicted on whether or not such a link can be drawn, and some have conflicted with this new study.
Review our our previous coverage on the topic.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Jim Hartle (jim.hartle@nortonrosefulbright.com or 713 651 5695) from Norton Rose Fulbright's Energy Practice Group.
This is the latest in a series of studies seeking to explain reported earthquakes near areas with oil and gas operations. Previous studies have been conflicted on whether or not such a link can be drawn, and some have conflicted with this new study.
Review our our previous coverage on the topic.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Jim Hartle (jim.hartle@nortonrosefulbright.com or 713 651 5695) from Norton Rose Fulbright's Energy Practice Group.
EPA reviews states’ solid waste management regulations for oil and gas operations
In an April 1, 2014 memorandum, the U.S. Environmental Protection Agency (EPA) summarized state regulatory programs concerning the management of solid waste from oil and natural gas exploration, development and production (E&P) operations.
In reviewing each state’s regulations, the EPA focused on surface storage and disposal facilities managing produced waters, drilling muds, drilling cuttings, hydraulic fracturing return fluids, and various other waste liquids and materials intrinsically related to oil and gas E&P.
The EPA found that the state regulations were primarily concerned with the “technical requirements associated with the design, construction, operation, maintenance, closure, and reclamation of surface pits, ponds, lagoons or tanks, as well as financial assurance requirements associated with such facilities.”
Among the common parameters are state requirements for liners in pits and impoundments, secondary containment requirements for tanks, set-back requirements, and various inspection requirements. However, the EPA did find gaps in regulations relating to groundwater monitoring, leachate collection, air monitoring, and waste characterization.
Overall, with the review, the EPA had developed an understanding of the wide-range of state regulatory programs currently in place in the twenty-six (26) oil and gas producing states covered in the summary.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
In reviewing each state’s regulations, the EPA focused on surface storage and disposal facilities managing produced waters, drilling muds, drilling cuttings, hydraulic fracturing return fluids, and various other waste liquids and materials intrinsically related to oil and gas E&P.
The EPA found that the state regulations were primarily concerned with the “technical requirements associated with the design, construction, operation, maintenance, closure, and reclamation of surface pits, ponds, lagoons or tanks, as well as financial assurance requirements associated with such facilities.”
Among the common parameters are state requirements for liners in pits and impoundments, secondary containment requirements for tanks, set-back requirements, and various inspection requirements. However, the EPA did find gaps in regulations relating to groundwater monitoring, leachate collection, air monitoring, and waste characterization.
Overall, with the review, the EPA had developed an understanding of the wide-range of state regulatory programs currently in place in the twenty-six (26) oil and gas producing states covered in the summary.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
Lesser prairie-chicken added to U.S. Fish and Wildlife Service’s list of threatened species
After more than 15 years of review, the U.S. Fish and Wildlife Service (FWS) announced on March 27, 2014 that the lesser prairie-chicken, a species of prairie grouse, is a “threatened” species, a step below “endangered” under the Endangered Species Act (ESA). The lesser prairie-chicken’s population is in rapid decline, due largely to habitat loss and fragmentation and the on-going drought in the southern Great Plains. Once abundant across much of the five range states of Texas, New Mexico, Oklahoma, Kansas and Colorado, the lesser prairie-chicken’s habitat of native grasslands and prairies has been reduced by an estimated 84%. The estimated population of the lesser prairie-chicken was reduced by half from 2012 to 2013.
Anticipating and hoping to ward off the threatened species designation, more than forty (40) private companies in the five states representing oil and gas, pipelines, electric transmission and wind energy voluntarily enrolled more than 3.5 million acres and provided more than $21 million to conserve the prairie-chicken habitat, as part of a comprehensive, science-based conservation strategy under the Western Association of Fish and Wildlife Agencies' (WAFWA) range-wide conservation plan. In addition, a number of on-the-ground programs have been implemented over the last decade to conserve and restore the lesser prairie-chicken’s habitat. These programs include the Lesser Prairie Chicken Initiative, the Bureau of Land Management’s New Mexico Candidate Conservation Agreement, and Candidate Conservation Agreements with Assurances (CCAA) in Oklahoma, Texas and New Mexico.
However, after reviewing the best available science and the on-the-ground conservation efforts and because “threats impacting the species remain and are expected to continue into the future,” the FWS determined that the “lesser prairie-chicken is likely to become endangered in the foreseeable future and warrants listing as threatened under the ESA.”
The FWS included a final special rule under section 4(d) of the ESA that is supposed to limit regulatory impacts on landowners and businesses from the listing. The rule will allow the five range states to continue to manage conservation efforts for the species and avoid further regulation of activities such as oil and gas development, that are covered under the WAFWA’s range-wide conservation plan. Oil and gas development activities include seismic and land surveying, construction, drilling, completions, workovers, operations and maintenance, and plugging and remediation.
Companies now have 30 days to enroll in a range-wide conservation plan or a CCCA. According to the president of the Permian Basin Petroleum Association, all entities having an interest in the activities covered should consider enrolling because “they’ll find it more palatable than going to the Fish and Wildlife Service for permission to drill a well.”
The president of the Texas Independent Producers & Royalty Owners Association expressed the organization’s disappointment in the threatened species designation, stating that “[t]his undoubtedly will affect independent oil and gas producers operating in the Lone Star State.”
The listing is expected to take effect May 1, 2014, 30 days after publication of the final rule and final special rule in the Federal Register.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
Anticipating and hoping to ward off the threatened species designation, more than forty (40) private companies in the five states representing oil and gas, pipelines, electric transmission and wind energy voluntarily enrolled more than 3.5 million acres and provided more than $21 million to conserve the prairie-chicken habitat, as part of a comprehensive, science-based conservation strategy under the Western Association of Fish and Wildlife Agencies' (WAFWA) range-wide conservation plan. In addition, a number of on-the-ground programs have been implemented over the last decade to conserve and restore the lesser prairie-chicken’s habitat. These programs include the Lesser Prairie Chicken Initiative, the Bureau of Land Management’s New Mexico Candidate Conservation Agreement, and Candidate Conservation Agreements with Assurances (CCAA) in Oklahoma, Texas and New Mexico.
However, after reviewing the best available science and the on-the-ground conservation efforts and because “threats impacting the species remain and are expected to continue into the future,” the FWS determined that the “lesser prairie-chicken is likely to become endangered in the foreseeable future and warrants listing as threatened under the ESA.”
The FWS included a final special rule under section 4(d) of the ESA that is supposed to limit regulatory impacts on landowners and businesses from the listing. The rule will allow the five range states to continue to manage conservation efforts for the species and avoid further regulation of activities such as oil and gas development, that are covered under the WAFWA’s range-wide conservation plan. Oil and gas development activities include seismic and land surveying, construction, drilling, completions, workovers, operations and maintenance, and plugging and remediation.
Companies now have 30 days to enroll in a range-wide conservation plan or a CCCA. According to the president of the Permian Basin Petroleum Association, all entities having an interest in the activities covered should consider enrolling because “they’ll find it more palatable than going to the Fish and Wildlife Service for permission to drill a well.”
The president of the Texas Independent Producers & Royalty Owners Association expressed the organization’s disappointment in the threatened species designation, stating that “[t]his undoubtedly will affect independent oil and gas producers operating in the Lone Star State.”
The listing is expected to take effect May 1, 2014, 30 days after publication of the final rule and final special rule in the Federal Register.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
House Democrats request hearing on induced seismicity
Reps. Henry Waxman (D-Calif.), ranking member of the House Energy and Commerce Committee, and Peter DeFazio (D-Ore.), ranking member of the House Committee on Natural Resources, issued a letter to their Republican counterparts requesting a joint hearing on the issue of seismic activity induced by the underground injection of wastewater from hydraulic fracturing activities. In the letter dated December 18, 2013, the members cite the increased seismic activity in previously seismically inactive locations, the critical need for additional data, and the potential regulatory gaps in current law that put people and property at risk from man-made earthquakes.
According to the ranking members, “[t]he tremendous boom in U.S. oil and natural gas production over the past several years has been the result of the expanded use of hydraulic fracturing and horizontal drilling, techniques that generate large quantities of wastewater, which is often disposed of through underground injection,” and reference a recent report by the National Research Council that linked seismic events to wastewater injection in Arkansas, New Mexico, Ohio, Texas, and other locations. The members also point to a joint October study from the U.S. Geological Survey and Oklahoma Geological Survey that suggested tremors in the state "may" be linked to hydraulic fracturing.
In the letter, the members argue that it is not clear that current requirements under the Safe Drinking Water Act Underground Injection Control (UIC) program are adequate to address the risk posed by induced seismicity to critical surface infrastructure such as nuclear power plants and dams, not to mention homes and businesses in the vicinity of injection wells.
It must be noted that the causal connection between hydraulic fracturing and earthquakes continues to be unresolved – studies and experts have produced research and opinion on both sides of the issue. Oklahoma state geologist G. Randy Keller called the claims "a rush to judgment," while Interior Department Deputy Secretary David Hayes said his teams have found "no evidence to suggest that hydraulic fracturing itself" is the cause of earthquakes.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
According to the ranking members, “[t]he tremendous boom in U.S. oil and natural gas production over the past several years has been the result of the expanded use of hydraulic fracturing and horizontal drilling, techniques that generate large quantities of wastewater, which is often disposed of through underground injection,” and reference a recent report by the National Research Council that linked seismic events to wastewater injection in Arkansas, New Mexico, Ohio, Texas, and other locations. The members also point to a joint October study from the U.S. Geological Survey and Oklahoma Geological Survey that suggested tremors in the state "may" be linked to hydraulic fracturing.
In the letter, the members argue that it is not clear that current requirements under the Safe Drinking Water Act Underground Injection Control (UIC) program are adequate to address the risk posed by induced seismicity to critical surface infrastructure such as nuclear power plants and dams, not to mention homes and businesses in the vicinity of injection wells.
It must be noted that the causal connection between hydraulic fracturing and earthquakes continues to be unresolved – studies and experts have produced research and opinion on both sides of the issue. Oklahoma state geologist G. Randy Keller called the claims "a rush to judgment," while Interior Department Deputy Secretary David Hayes said his teams have found "no evidence to suggest that hydraulic fracturing itself" is the cause of earthquakes.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
USFWS Withdraws Proposed Endangered Status for Dunes Sagebrush Lizard
According to FWS, the withdrawal is based on its conclusion that the threats to the species as identified in the proposed rule no longer are as significant as believed at the time of the proposed rule.
FWS originally proposed the dunes sagebrush lizard for listing on the Federal Lists of Endangered and Threatened Wildlife and Plants (commonly referred to as the “Endangered Species List”) on December 14, 2010.
FWS originally proposed the dunes sagebrush lizard for listing on the Federal Lists of Endangered and Threatened Wildlife and Plants (commonly referred to as the “Endangered Species List”) on December 14, 2010.
On December 5, 2011, FWS extended its final determination on whether or not to list the dunes sagebrush lizard as endangered until June 14, 2012, due to significant scientific disagreement regarding the sufficiency or accuracy of the available data relevant to the proposed listing.
Under the ESA, it is unlawful for any person to “take” an endangered and threatened species, which means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”
Under the ESA, it is unlawful for any person to “take” an endangered and threatened species, which means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”
FWS regulations define “harm” for purposes of the Act to include “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”
Environmental groups had been pressuring FWS for years to list the dunes sagebrush lizard on the endangered species list, claiming that the lizard was endangered primarily as a result of rapidly expanding oil and gas development in the Permian Basin of New Mexico and Texas.
Environmental groups had been pressuring FWS for years to list the dunes sagebrush lizard on the endangered species list, claiming that the lizard was endangered primarily as a result of rapidly expanding oil and gas development in the Permian Basin of New Mexico and Texas.
Placement of the lizard on the endangered species list would have greatly limited oil and gas activities in its habitat, thus significantly impacting oil and gas production in southeastern New Mexico and west Texas.
This article was prepared by Heather M. Corken (hcorken@fulbright.com or 713 651 8386) and Kristen Roche (kroche@fulbright.com or 713 651 5303) from Fulbright's Environmental Law Practice.
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