Wyo. pollution study seeps into fracking rule battle

By Ellen M. Gilmer | 05/02/2016 06:56 AM EDT

A controversial new study on water contamination from oil and gas development has made its way to a high-stakes legal battle over hydraulic fracturing. The question now is whether the court should consider it.

The research, released last month, ties water pollution to oil and gas activity in Pavillion, Wyo. — the site of a yearslong investigation that was abandoned by U.S. EPA in 2013. A former EPA scientist now at Stanford University followed up on the agency’s work and determined that water wells in the small town were likely contaminated with fracking wastes stored in unlined pits (ClimateWire, April 4).

Environmental groups defending the Obama administration’s new rule for fracking on public lands flagged the study for a federal court last week. As the U.S. District Court for the District of Wyoming weighs whether the fracking rule is legal, it should consider the findings of the latest Pavillion study, the groups argued.


"The Citizen Groups submit the attached articles to ensure that the Court is not left with an incomplete picture of the Pavillion research," lawyers for the Sierra Club, Earthworks, the Wilderness Society, the Conservation Colorado Education Fund and the Southern Utah Wilderness Alliance wrote in a legal brief.

The study’s findings, they say, underscore the very purpose of the fracking rule: to protect against environmental and health damage from fracking. The rule sets new requirements for well construction, wastewater management and chemical disclosure, and requires operators to submit drilling plans and obtain Bureau of Land Management approval before fracking.

"By requiring advance review and approval, BLM’s hydraulic fracturing rule allows the agency to identify such operations and ensure that measures are taken to protect usable aquifers," they wrote.

But according to Western states challenging the fracking rule, the newest Pavillion research has no place in the litigation. Not only is the environmentalists’ request out of line with court procedural rules, they said, it’s also not relevant to the litigation.

"[T]he so-called supplemental authority is not ‘pertinent and significant,’" lawyers for Wyoming, Colorado and Utah told the court Friday. "Instead, the Special Interest Groups’ sur-reply is an attempt to rebut the factual conclusions of a Wyoming water quality study that post-dates the fracking rule."

The states added that even the original EPA Pavillion study was irrelevant because BLM didn’t use the study as a basis for the fracking rule.

Judge Scott Skavdahl has discretion over whether to accept the Stanford study as a "supplemental authority" in the case. The Obama appointee has previously focused on broader questions of agency jurisdiction in the litigation, zeroing in on whether BLM has authority to regulate fracking.