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Senate appropriations bill shields tribes from BLM fracking rule

Friday, June 26, 2015

A fracking wells on the Mandan, Hidatsa and Arikara Nation of North Dakota. Photo by Talli Nauman

A controversial hydraulic fracturing rule continues to draw significant attention in Congress, the courts and Indian Country.

H.R.2822, the fiscal year 2016 Interior appropriations bill, bars the Bureau of Land Management from enforcing the rule on federal and Indian lands. The House opened debate on the measure on Thursday and will continue discussion in the coming days.

The Senate version of the appropriations measure also takes on the rule. But rather than barring it outright, it directs the BLM to grant a "variance" to any tribe that has already developed its own own fracking standards.

The BLM rule does allow for variances to be granted to tribes and states. Section 114 of the Senate version, however, does not give the agency discretion to reject a tribal or state request because it uses the phrase "shall issue."

The bill, which cleared a markup on June 18, "provides an appropriate balance of congressional oversight to ensure the Executive Branch remains within its jurisdictional boundaries so that taxpayers are not subject to undue regulatory burden and red tape,” Sen. Thad Cochran (R-Mississippi), the chairman of the Senate Appropriations Committee, said in a press release.

The fracking rule was finalized by BLM in March and came with a 395-page explanation document. In it, the agency asserted the right to set standards on Indian lands despite objections from some tribes.

"The BLM believes it is fulfilling its part of the [Interior] Secretary’s trust responsibilities by requiring operations on Indian lands to meet the same standards as those on federal lands," the document stated.

The rule officially took effect on Wednesday. However, a federal judge has told the BLM to delay implementation until July 22 in response to a lawsuit from an energy industry group and four states.

The Southern Ute Tribe of Colorado has filed a separate lawsuit challenging the rule. The tribe has developed its own fracking laws and believes the BLM is encroaching on its self-determination rights.

The Ute Tribe in neighboring Utah also plans to challenge the rule in court. The tribe wants to set it own fracking standards on the Uintah and Ouray Reservation.

President Barack Obama has already threatened to veto the House version of the appropriations measure due to the presence of numerous policy riders affecting the fracking rule and other regulations. Democrats in the House and the Senate have vowed to do all they can to prevent the controversial provisions from moving forward.

“Let me be clear," Sen. Barbara Mikulski (D-Maryland), the ranking member of the Senate Appropriations Committee, said at the markup last week. "The President will veto bills at the sequester level and bills with poison pill riders designed for confrontation. Democrats will vote against motions to proceed to these bills on the floor."

Since the House and Senate versions of the Interior appropriations bill differ with the approach to the fracking rule, any differences would have to be resolved by a joint conference committee, assuming the bill clears each chamber.

The Senate's fracking rider follows:

STATEWIDE VARIANCES
SEC. 114. On land under the jurisdiction of a State or federally recognized Indian tribe, if State or tribal laws or regulations are in place regarding the process generally understood to encompass hydraulic fracturing or well stimulation for the purpose of production of natural gas and oil, the Bureau of Land Management shall issue to that State or Indian tribe a statewide variance for all wells from the requirements of the final rule entitled ‘‘Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands’’ 2 (80 Fed. Reg. 16128 (March 26, 2015)).

The House rider reads:

Sec. 439. None of the funds made available by this or any other Act may be used to implement, administer, or enforce the final rule entitled ``Hydraulic Fracturing on Federal and Indian Lands'' as published in the Federal Register on March 26, 2015 and March 30, 2015 (80 Fed. Reg. 16127 and 16577, respectively).

Federal Register Notice:
Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands (March 26, 2015)