The Trump Administration Wants to Roll Back Fracking Standards, So We’re Going to Court

Fracking has disrupted the landscape and the life of North Dakota. Theodora Bird Bear has lived in the town of Mandaree on the Fort Berthold Indian Reservation for most of her six decades. When the retiree moved into her current home in the ‘80s, she found juneberries, plums, buffalo berries, chokecherries and turnips growing wild on her property.

“These natural foods which our tribe relied on prior to the 1950s are important to me as a tribal member in our original homelands,” Bird Bear wrote last year. “This landscape is the last of our historic pre-treaty lands.”

Now, nearly 1,000 active oil and gas wells have industrialized the delicate, semi-arid ecosystem all around Bird Bear.

“Sadly, there are very few butterflies visible, especially the monarch butterfly, in the past nine years of the intensive mineral extraction all around my home,” says Bird Bear, who is a member of Fort Berthold Protectors of Water and Earth Rights (POWER). “There are also fewer birds around. The continuous jet-like sound from the frack well sites around my home drowns out the bird songs in the spring and early summer.”

“I am worried about the cumulative and adverse impacts to air and water in Mandaree and Fort Berthold,” she adds. “The secret, proprietary nature of fracking means tribal members like myself aren’t able to fully protect our tribal lands in the event of a toxic fracking spill.”

This week, Earthjustice and our clients, including Fort Berthold Protectors of Water and Earth Rights, went to court to push for more information and more protection for Bird Bear and others living amid fracking operations. We challenged a Trump administration effort to roll back common sense standards around fracking.

These standards were adopted in 2015 by the Bureau of Land Management to protect places like Fort Berthold from the chemical contamination and water pollution that can result when fracking goes awry.  The agency crafted this rule after five years of research and conducting public and tribal outreach sessions across the country—including in North Dakota, where Bird Bear testified. It was the first federal effort since the 1980s to update the agency’s standards for the thousands of fracking operations that occur each year on federal and Indian lands.

But the regulation never went into effect. Litigation by industry groups and some states delayed it. And at the end of 2017, under new leadership from the Trump administration, BLM nixed its own rule.

“BLM recognized in 2015 it needed to take these basic safety precautions in order to meet its responsibilities as the steward of public lands,” said Michael Freeman, one of the Earthjustice attorneys bringing the lawsuit.  “By repealing the rule, BLM is abandoning its duties to the American public as well as to native American communities facing the threat of fracking.”

The Trump administration justified the repeal in part by arguing that states and tribal are doing an adequate job of managing oil and gas development by themselves.  But the reality is that fracking policies vary widely from state to state, and particularly from tribe to tribe, Freeman says. Many tribes don’t have fully-developed tribal regulatory systems to address oil and gas development, or the resources to hire experts who can assess whether a fracking operation is likely to contaminate groundwater or cause a well blowout.

Bird Bear testified that she does not believe the Fort Berthold Tribal Council has the clout to enforce regulations concerning oil and gas extraction based on her experience with lax enforcement of a tribal regulation governing the wasteful flaring of natural gas produced at oil wells.

“After 10 years of oil and gas revenue received by the tribal council, it’s also unlikely they will have political will to stand up for the health of tribal members on Fort Berthold when it comes to oil and gas pollution,” she said.

Several federal laws—including the Federal Land Policy and Management Act, the Mineral Leasing Act—charge BLM with ensuring that development on federal lands benefits the public welfare and prevents unnecessary degradation of resources like water quality.  And under the Indian Mineral Leasing Act, the Secretary of the Interior also has a trust responsibility to ensure that oil and gas extraction on tribal lands is in the best interest of tribes and individual tribal members like Bird Bear.

The 2015 fracking rule set several commonsense standards to protect groundwater, surface water, wildlife, and public health and safety. It would have required oil and gas companies to disclose the chemicals they used in fracking. Companies would have had to store fracking waste in closed tanks, not pits—the latter method can kill livestock or wildlife that mistake the pit for a convenient water source, Freeman says. And the operators would have had to ensure the structural integrity of their wells, in addition to mapping nearby wells to ensure that they wouldn’t hit them while drilling.

On behalf of our clients—which also include Diné Citizens Against Ruining Our Environment, Center for Biological Diversity, Earthworks, Sierra Club, Southern Utah Wilderness Alliance, The Wilderness Society, and Western Resource Advocates, Earthjustice’s lawsuit asks the court to reinstate the 2015 rule on the grounds that its rollback was arbitrary and capricious.

Thanks to BLM’S abrupt reversal of its own fracking laws, tribal land owners are denied the right to assure protection of their ground and surface water in the semi-arid lands of Fort Berthold.  Bird Bear says BLM’s failure to enforce strong regulatory protections on nearby wells has endangered her health. But she’s not giving up on protecting Fort Berthold.

“We have consistently remained anchored here in our pre-treaty homelands,” she testified. “We stayed true to our land and ourselves – and this is our strength.”