Developments in IPAA et al. v. EPA
In January, oil and gas industry trade associations, including the Independent Petroleum Association of America, sued EPA in the U.S. Circuit Court of Appeals for the D.C. Circuit challenging EPA’s statements on its website that fracking was subject to the Underground Injection Control program regulations for Class II wells. EPA has not wavered in its view and, as noted in a recent post to this blog, presented the planned scope of its guidance “Permitting for Oil and Gas Hydraulic Fracturing Activities Using Diesel Fuels” at several stakeholder meetings last month.
Not surprisingly, EPA argues in a brief filed earlier this month that the case should be dismissed because the court lacks jurisdiction since there is no final agency action and the plaintiffs lack standing to sue because the alleged injury is caused by Congressional action, not the statement on EPA’s website.
EPA argues that “[t]he only question remaining after [the Energy Policy Act of 2005] was what type of UIC permit a party desiring to conduct hydraulic fracturing operations using diesel fuels would need, not whether a permit is needed at all.” Therefore, in EPA’s view there is no question whether “new” regulations are needed.
Briefing will conclude later this month. The outcome of this case may impact state regulatory programs, industry activities, pending private litigation, and participation in FracFocus, the public database created by state regulators.
