Did the Eleventh Circuit Crack "Frac"? -- Hydraulic Fracturing After the Court's Landmark Leaf Decision
By Markus G. Puder
INTRODUCTION
On August 7, 1997, the United States Court of Appeals for the Eleventh Circuit in Atlanta held that the production enhancement technique of hydraulic fracturing falls within the definition of “underground injection,” under the strictly controlled underground injection control (“UIC”) programs of Part C of the Safe Drinking Water Act (“SDWA”), that all underground injection is required to be regulated (by permit or rule), and that hydraulic fracturing associated with coalbed methane gas is not regulated under Alabama's UIC program. The Eleventh Circuit decided in favor of the Legal Environmental Assistance Foundation (“LEAF”) and remanded the case to the United States Environmental Protection Agency (the “EPA”) for reexamination of its national UIC regulations and their application to the practice of hydraulic fracturing in coalbed methane operations. On October 20, 1997, the Eleventh Circuit rejected the EPA's petition for rehearing in a one-sentence order. On February 18, 1999, the Eleventh Circuit issued a writ of mandamus requiring the EPA to withdraw approval of the Alabama UIC program in late 1999 unless the state, with approval of the Agency, made the pertinent revisions consistent with the terms of the LEAF decision. If the EPA disapproves Alabama's UIC primary program, it will initiate a direct implementation process.
The resolution of the LEAF litigation may trigger new requirements for hydraulic fracturing, a widespread albeit relatively unregulated oil and gas recovery enhancement process. Although the Eleventh Circuit's decision has a limited geographic scope, similar decisions may be handed down in other states. In addition, other types of wells and stimulation techniques might likewise be swept within the definition of “underground injection” requiring regulation under the SDWA. In the course of determining its implementation strategy after LEAF, the EPA has been gathering factual information associated with hydraulic fracturing, although comprehensive national data have not been readily available.
This article discusses the LEAF decision, its potential effects, and alternative legal response avenues. Part I describes the technique of hydraulic fracturing and surveys coalbed methane recovery. Part II overviews the SDWA's UIC program. Part III analyzes potential ramifications of the LEAF case. Part IV develops options for responding to the decision.
On August 7, 1997, the United States Court of Appeals for the Eleventh Circuit in Atlanta held that the production enhancement technique of hydraulic fracturing falls within the definition of “underground injection,” under the strictly controlled underground injection control (“UIC”) programs of Part C of the Safe Drinking Water Act (“SDWA”), that all underground injection is required to be regulated (by permit or rule), and that hydraulic fracturing associated with coalbed methane gas is not regulated under Alabama's UIC program. The Eleventh Circuit decided in favor of the Legal Environmental Assistance Foundation (“LEAF”) and remanded the case to the United States Environmental Protection Agency (the “EPA”) for reexamination of its national UIC regulations and their application to the practice of hydraulic fracturing in coalbed methane operations. On October 20, 1997, the Eleventh Circuit rejected the EPA's petition for rehearing in a one-sentence order. On February 18, 1999, the Eleventh Circuit issued a writ of mandamus requiring the EPA to withdraw approval of the Alabama UIC program in late 1999 unless the state, with approval of the Agency, made the pertinent revisions consistent with the terms of the LEAF decision. If the EPA disapproves Alabama's UIC primary program, it will initiate a direct implementation process.
The resolution of the LEAF litigation may trigger new requirements for hydraulic fracturing, a widespread albeit relatively unregulated oil and gas recovery enhancement process. Although the Eleventh Circuit's decision has a limited geographic scope, similar decisions may be handed down in other states. In addition, other types of wells and stimulation techniques might likewise be swept within the definition of “underground injection” requiring regulation under the SDWA. In the course of determining its implementation strategy after LEAF, the EPA has been gathering factual information associated with hydraulic fracturing, although comprehensive national data have not been readily available.
This article discusses the LEAF decision, its potential effects, and alternative legal response avenues. Part I describes the technique of hydraulic fracturing and surveys coalbed methane recovery. Part II overviews the SDWA's UIC program. Part III analyzes potential ramifications of the LEAF case. Part IV develops options for responding to the decision.
