Tracking Oil and Gas Laws

For three and half years, the Intermountain Oil & Gas BMP Project has been working on a collection of datasets and maps at LawAtlas.org that focus on water quality, water quantity, and air quality statutes and regulations within oil and gas development in the United States, specifically related to horizontal drilling and hydraulic fracturing (better known as fracking).

Most recently this collection of seven datasets expanded from 13 states (CO, LA, MT, ND, NM, NY, OH, OK, PA, TX, UT, WV, and WY) to 17 states (adding IL, CA, AR, and AK) and added regulations from four federal agencies – Bureau of Land Management, Bureau of Indian Affairs, U.S. Forest Service, and the Environmental Protection Agency. The research, which was funded in part by the Public Health Law Research program (PHLR), is meant to shed light on the regulations in place in the industry, and establish a baseline for how the industry is regulated.

Samelson head shot
Matt Samelson, JD

Matt Samelson, JD, a consultant attorney at University of Colorado Boulder Getches-Wilkinson Center for Natural Resources, Energy, and the Environment, spoke with PHLR about his work and the recent developments in this project.

PHLR: What is the mission of the Intermountain Oil and Gas BMP Project?

MS: The Intermountain Oil & Gas BMP Project has been around for about 10 years. The focus of the project is a searchable database addressing surface resources affected by oil and gas development. It includes mandatory and voluntary Best Management Practices currently in use or recommended Colorado, Montana, New Mexico, Utah, and Wyoming. The database includes resources that run the gamut from air quality, water quality, wildlife, and cultural resources. The component that I personally put together was a comparative analysis that focused on rules and regulations that have been enacted. This serves as a template to track laws and jurisdictions that are addressing air quality, water quality and other environmental issues around oil and gas development, and fracking in particular. The Project focuses primarily on air quality, water quality, and water quantity since so much of the regulatory work that is built up around oil and gas development really goes after those three elements.

PHLR: Why is it important to track oil and gas development laws?

MS: As technological advancements in horizontal drilling and hydraulic fracturing were becoming more widespread in 2009-2010, you started to see rapid oil and gas development, essentially a boom. Areas — even those that have a long history of having gas development — started to see wells moving into their suburbs and into their cities. From the legal stance, this project was meant to show what sort of regulatory regimes were in place as the landscape was changing, and provides baseline information about how the industry is regulated in different jurisdictions.

PHLR: How is the topic of oil and gas development relevant today?

MS: So, Colorado just finished the rule-making that defines a large oil and gas well site and identifies the regulations needed to improve communication as oil and gas development moves into the suburbs. Rural areas or ranches have seen the most oil and gas development in the past, so the people who live in those areas may be more comfortable with the process and perhaps more familiar with the regulations and their legal rights, to some degree. But as the drilling moves into the suburbs, you have a large group of constituents now living close to proposed large oil and gas sites, who have never encountered the industry before. These people are understandably concerned because it’s new, it’s different, and it’s close to their homes and their kids’ schools. I think the topic remains relevant because people are going to have concerns about air quality and water quality. By buildings these databases to provide information for decision-makers, members of the media, and community members, they will have access to important regulations in place designed to protect air quality, water quality and water quantity, and where they are not. This database is also meant to provide information in order to spark more conversations with either the industry or regulators, and to help people become more conversant about the topic of oil and gas development.

PHLR: Most often, we hear about oil and gas development (and particularly fracking) when an incident occurs, why do you think people are not usually aware of this issue and how much it impacts our daily lives?

MS: I think that unless one has visually seen drilling rigs and seen the hundreds of trucks that are going by a site daily, it just doesn’t register with people. We have so much going on in our lives that until an area that you’re familiar with being developed — well pad, drill rigs, trucks, etc. — you probably don’t give much thought to oil and gas development and potential impacts. Because development can be pretty localized, I don’t think people recognize that there’s a lot of development taking place and that it could affect their daily lives.

PHLR: The datasets on LawAtlas.org recently expanded from 13 states to 17 states; will they continue to expand in the near future? Did the dataset change in any other way?

MS: The datasets have been expanded to cover 17 states now, and we added regulations from the Bureau of Land Management, the US Forest Service, EPA (Environmental Protection Agency), and the Bureau of Indian Affairs. There’s a lot of overlap among those federal entities, so we felt it was important that they were included. We also updated the air quality dataset to make it more user-friendly.

The 17 states we cover at the moment are the ones that have significant shale oil and shale gas development taking place. There’s always the potential to add more states, because shale oil and gas development is not limited to those 17 states. Perhaps an interesting way to expand it would be to add other topics apart from air quality, water quality, and water quantity. We could potentially add a topic that would ripple through all the existing states as well as the federal regulations.

PHLR: What are some areas to watch for, or what do you foresee happening in the future regarding oil and gas development laws?

MS: I think one of the areas where we’ll probably see some changes in the future is in the interaction between the state statutes and the state regulators with local governments, and the desire for local governments to have a larger voice in the development that is taking place inside their jurisdictions. Under the existing interpretation of preemption laws between states and local governments, most of the state’s statutes are going to trump local regulations. I think more conversations will arise between the states and local governments around how to increase communication and collaboration in order to avoid conflict between the two when it comes to siting decisions of oil and gas wells, particularly in close proximity to existing neighborhoods.

Matt Samelson is an attorney with Western Environmental Law Partners and is a long-time consultant with the University of Colorado’s Intermountain Oil and Gas BMP Project.  Matt is currently conducting a comparative law research project of select federal, state, and local regulations for major shale oil and gas plays across the nation. The project is part of AirWaterGas (www.airwatergas.org), a program funded by the National Science Foundation as a Sustainability Research Network.  He is also the director of special projects for the Donnell-Kay Foundation, which engages in K-12 education policy in Colorado.  He is a graduate of the University of Colorado Law School and the University of Colorado School of Public Affairs.

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