Amicus Curiae Brief — Legal Environmental Assistance Foundation, Inc. v. Environmental Protection Agency

MOTION FILED >

SEP 1 8 2002 Sy,

No. 01-1846

In The

Supreme Court of the United States

LEGAL ENVIRONMENTAL ASSISTANCE FOUNDATION, INC.,

Petitioner,

| V.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Respondent,

and

STATE OIL AND GAS BOARD OF ALABAMA,

Intervenor.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE

AND BRIEF AMICI CURIAE IN SUPPORT OF THE RESPONDENT,

FILED ON BEHALF OF AMERICAN PETROLEUM INSTITUTE,

THE COALBED METHANE ASSOCIATION OF ALABAMA,

THE COLORADO OIL & GAS ASSOCIATION,

THE DOMESTIC PETROLEUM COUNCIL,

THE INDEPENDENT PETROLEUM ASSOCIATION OF AMERICA AND

THE US OIL & GAS ASSOCIATION,

Daniel M. Steinway

Thomas C. Jackson

Counsel of Record

KELLEY DRYE & WARREN LLP

1200 19* Street, NW, Suite 500

Washington, DC 20036

(202) 955-9600

Counsel for Amici Curiae

THE LEX GROUP” @ One Massachusetts Ave., NW @ Suite 670 ® Washington, DC 20001

(202) 789-2400 @ (800) 815-3791 @ Fax: (202) 789-1911 ®@ www.thelexgroupdc.com

ai \\

MOTION FOR LEAVE TO FILE

BRIEF AMICI CURIAE

Pursuant to Supreme Court Rule 37.2, the

American Petroleum Institute, the Coalbed Methane

Association of Alabama, the Colorado Oil & Gas

Association, the Domestic Petroleum Council, the

Independent Petroleum Association of America and the

US Oil & Gas Association (collectively “the Proposed

Amici") respectfully move this Court for leave to file the

accompanying brief amici curiae in opposition to the

Petition for Writ of Certiorari filed by the Legal

Environmental Assistance Foundation, Inc. (“LEAF”).

Consent for the filing of this brief was granted by counsel

of record for Respondent United States Environmental

Protection Agency (“EPA”) and Intervenor State Oil and

Gas Board of Alabama. The consent letter from counsel

for EPA has been filed with the clerk’s office. Consent

was withheld by Petitioner LEAF.

The Proposed Amici have a substantial interest in

the petition filed by LEAF. LEAF's petition involves the

regulation of a technology known as hydraulic fracturing

that is used in the production of natural gas and oil. It

involves the pumping of water and other fluids into gas

or oil wells at high pressures that create fractures in coal

seams or other formations which serve as conduits for gas

or oil to flow toward the well. LEAF's petition challenges

EPA's approval of the rules adopted by the Alabama Oil

and Gas Board for the regulation of hydraulic fracturing

of certain types of gas wells under the Safe Drinking

Water Act, 42 U.S.C. §§ 300f-300}-26 ("SDWA").

The Proposed Amici represent the interests of a

wide range of companies involved in domestic oil and

gas production in the state of Alabama and elsewhere.

The members of these associations participate in all

sectors of the domestic oil and gas industry, including

production of oil and natural gas. Hydraulic fracturing is

increasingly used to enhance production of gas and oil

across the country. In fact, in many cases the use of

hydraulic fracturing technologies is essential in order to

make production of gas from wells economically viable.

Accordingly, the members of the Proposed Amici rely

increasingly on this vital technology in Alabama and

elsewhere in order to satisfy the growing demands for

domestic energy supplies. LEAF’s challenge, if upheld,

would affect the way that hydraulic fracturing is

regulated in Alabama pursuant to the underground

injection control provisions of the SDWA. Therefore,

EPA’s interpretation of the application of the SDWA to

hydraulic fracturing in Alabama is of considerable

consequence to the member companies of the Proposed

Amici.

In addition, the Proposed Amici believe that their

participation in the case may assist the Court in its review

of LEAF's petition. Given the extensive knowledge and

experience of their members, the Proposed Amici have

substantial and unique expertise with respect to both

hydraulic fracturing technology and its regulation under

the SDWA in Alabama as well as the regulation of

hydraulic fracturing activities under various state

regulatory programs across the country. The Proposed

Amici believe that the expertise they offer may assist the

Court in understanding the issues raised by LEAF's

petition for certiorari and in determining whether that

_ petition is worthy of the Court's review.

For the reasons stated above, the Proposed Amici

respectfully request that this Court grant their motion for

leave to file this brief. |

Dated: September 18, 2002

Respectfully submitted,

Daniel M. Steinway

Thomas C. Jackson

Counsel of Record

Kelley Drye & Warren LLP

1200 19% Street, N.W. Suite 500

Washington, D.C. 20036

(202) 955-9600

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

Sigeeds Ge Aare il

I imms Cor Anes CA... 1

SUMMARY OF ARGUMENT .........................:............... 3

FRIAR, Fis le Re ee ee 5

I. LEAF HAS FAILED TO DEMONSTRATE

THAT ANY OF THE CONSIDERATIONS

GOVERNING REVIEW ON CERTIORARI

SUPPORT A GRANT OF THIS PETITION.......... 5

Il. THE ELEVENTH CIRCUIT’S DECISION

Wie WAM ice a 9

A. EPA's Determination Is Entitled to

| EER MRL A CCE t:/ BA ORg A Tee ky 9

B. Section 1425 Applies to Hydraulic

Fracturing Activities and Provides

States with Significant Flexibility in

Meeting the Requirements of the

af, ERroeUE Re allah am EO ARERR SCE me Te 11

C. EPA Correctly Determined that

Alabama’s Program Complies With

the Provision of the Act Requiring

Applicants to Satisfy the State That

Underground Injection Will Not

Endanger Drinking Water Sources............. 13

es OEE. ks Lied Aan an ico tei Rei ie ROME emi 16

TABLE OF AUTHORITIES

Page

Cases

Babbitt v. Sweet Home Chapter of

Communities for a Great Or.,

SES WS. Gay Came cctscthecserrtirenstetprcnecstednaensian 10

Chevron U.S.A. Inc. v. Natural Res.

Defense Council, Inc.,

467 US. Gar GIR dct ascehdccenkibase 9-10

FTC v. Jantzen, Inc.,

SOG US. Zab (RGGI) srcssesisctsensntatsieiiniattdintDieashcaas elena 8

Hinderlider v. La Plata River &

Cherry Creek Ditch Co.,

SOG TS. FE Mp rvnsniicstccscssstuntciigatoiecnactesnntiticnaias 8

Kleppe v. Sierra Club,

427 US. SOD CRG siiccctssitincien nich Rethcnonsniniteataiain 10

Laing v. United States,

423 US. 2G8 CBG is saicccncctisiaeasestecenctepetis 7

Legal Envt'l Assistance Found., Inc. v.

U.S. Environmental Protection Agency,

276 FS TESS CLES Che, TD cerssetcsckecsenvcnssematacicnais 1

Marsh v. Oregon Natural Res. Council,

GIO US, SOD CECI) onc caceestacisseruiapnapessnsia’ Liediedaapcaniads 10

Morton v. Ruiz,

ee er TI basacratcicenniehsincibansctbcecabsilincibeststitilarbebdbcsaiae 7

Motor Vehicle Mfrs. Ass'n v.

State Farm Mut. Ins. Co.,

a ee CI eisnscosnsetiniintincnicnsiacnhcintsitaiaiaticiiesunsnice 9

Patterson v . Lamb,

ay GE Piicncnicrnsesnithdhdaninsintncnensithochanemenadisnic 8

Rice v. Sioux City Mem'! Park Cemetery,

SU eee on NIETE icsihnessieioesiadbakinsnltiossiieanseshiunnesiphonsectins 7

United States v. Mitchell,

RR aU ccaciniscbicncimetihsenneiMangutsinnienseinnondtionts 8

United States v. Rumely,

ee Ie Ns EIEN ds Aeieephctntcistindabinscinctshitnsshdnntdamiqanisccnsiiitie 8

United States v. Ruzicka,

EE I cs odihlseshisencsiciicdinannisieentisiianvanstintionticiehs 7

Statues

Safe Drinking Water Act,

See ee Ot ME, i cocsisnienscnsénsicpiinonnsinbihniabi passim

ies CTT iediieilieddanieiiauinieiielincsesiaiestanntiianetunannidaphaseinpades 9

ey I SI a iitciecchncasnanecitincbenenicsiaysishomiinglntatbennntbietil 7,9

Sa ch natalia trenaeiphceieneinniaigaistinamwenenstaenatont 9

Rules and Regulations

Sup. Ct. ie Seis aissstniinmnstannialdasnnsiensiostinssstapincsisaiie

MT as Be ROI saaitisretestscssasicaresccosesicanbinnsialicn

GG FOG. ROG, Z7IIO CFG) vecisiesisssessasssssicstosntinesess

65 Fed. Reg. 2689 (2000) .........2.......c.sscsscscssssesssees

Legislative History

126 Cong. Rec. H931 (daily ed. Sept. 20, 1980)

H.R. Rep. No. 96-1348 (1980), reprinted in 1980

RON teh ae? DRESS SP ShLS SAR NRC DONORS

Other Authorities

U.S. Environmental Protection Agency,

Evaluation of Impacts to Underground

Sources of Drinking Water by Hydraulic

Fracturing of Coalbed Methane

TRAINED COI iin ni scncscicncsschcbintciobiiiieigs Yonadshesss

iV

The American Petroleum Institute, the Coalbed Methane

Association of Alabama, the Colorado Oil & Gas

Association, the Domestic Petroleum Council, the

Independent Petroleum Association of America and the US

Oil & Gas Association respectfully file this brief as amici

curiae in support of the Respondent, United States

Environmental Protection Agency (“EPA”).’

INTEREST OF AMICI CURIAE

This case involves the regulation of a technique

known as hydraulic fracturing that is used to facilitate the

production of natural gas and oil from wells. This

technology, which involves the injection of liquids at high

pressures into a gas or oil well to create fractures in coal

seams or other formations that serve as conduits along which

oil or gas can travel to a wellbore, is widely used to increase

the productivity of gas and oil wells and is essential in many

cases in order to make production of gas or oil from a well

economically viable. As a result, many companies that are

involved in the domestic production of natural gas and oil

are vitally interested in regulatory requirements relating to

hydraulic fracturing that may affect the ability of operators

of gas and oil wells to make use of this important

technology. The amici represent these companies that are

involved in domestic production of natural gas and oil.

The American Petroleum Institute (“API”) represents

more than 400 companies involved in all aspects of industry

' No counsel for any party has authored this brief in whole or in part. In

addition to the listed amici, entities that have made monetary

contributions to the preparation and submission of this brief include

Columbia Natural Resources, EL Paso Production Company, Equitable

Production Company, and the Ohio Oil & Gas Association.

l

oil and gas operations, including the exploration, production,

refining and marketing of oil and gas products. The

regulation of hydraulic fracturing activities in Alabama in

connection with oil and gas production operations under the

Safe Drinking Water Act, 42 U.S.C. §§ 300f-300)-26

(“SDWA”), has had a direct and substantial impact on API

members and their efforts to develop domestic energy

supplies.

The members of the Coalbed Methane Association of

Alabama ("CMAA") are engaged in the development and

production of coalbed methane resources in Alabama.

Coalbed methane wells in Alabama must generally be

hydraulically fractured in order for the well to be a

productive source of natural gas. Alabama coalbed methane

operators are the only coalbed methane developers in the

country currently subject to the regulation of hydraulic

fracturing as underground injection under the SDWA. The

outcome of this litigation will have a direct effect on the

entire membership of CMAA.

The Colorado Oil & Gas Association (““COGA”) is

the business trade association for the oil and gas industry in

Colorado. While COGA's activities are focused primarily on

producers of oil and gas, it also represents pipeline operators,

processors and power generators. The vast majority of oil

and gas wells drilled in Colorado are hydraulically fractured,

including those related to gas from tight sands and coal

seams in all the state’s major basins.

The Domestic Petroleum Council (“DPC”) is a

national trade association representing 23 of the largest

independent natural gas and crude oil exploration and

production companies in the United States. The DPC

companies are among the most active in applying leading-

ee

edge technology, including hydraulic fracturing, to meet the

increasing domestic demand for energy supplies.

The Independent Petroleum Association of America

(“IPAA”) represents the interests of independent gas and oil

producers, which collectively account for approximately 40

percent of America’s crude oil production and 65 percent of

America’s natural gas production. IPAA members drill

many domestic natural gas and oil wells in Alabama, more

than 50 percent of which require hydraulic fracturing in

order to facilitate the production of oil and natural gas

supplies. IPAA members therefore have a strong interest in

the regulation of hydraulic fracturing in Alabama.

The US Oil & Gas Association has over 3,000

members representing all sectors of the domestic oil and gas

industry. The Association's mission is to promote and

protect the oil and gas industry. Many of the Association’s

members are affected by regulatory controls on hydraulic

fracturing of oil and gas wells.

SUMMARY OF ARGUMENT

Essentially conceding that there is no conflict among

the circuits on the question it presents, petitioner Legal

Environmental Assistance Foundation, Inc. ("LEAF")

nevertheless asks this Court to review and reject the

determinations of EPA and the U.S. Court of Appeals for the

Eleventh Circuit regarding a narrow and unremarkable

provision of the SDWA. However, the petition for certiorari

filed by LEAF is without any merit.

First, LEAF has completely failed to demonstrate that

the narrow issue it raises, which concerns one aspect of

EPA’s approval of Alabama’s program for regulating

hydraulic fracturing of coalbed methane (“CBM”) wells

under the SDWA, satisfies the criteria generally used by the

Court in considering whether to grant a petition for

certiorari. For example, LEAF has made no effort to

demonstrate that the decision of the Eleventh Circuit below

is in any way in conflict with a decision of another U.S.

court of appeals or a decision of this Court. LEAF has

likewise made no allegation that the validity of EPA’s

determination regarding the compliance of the Alabama

program with section 1421 of the SDWA, 42 U.S.C. § 300h,

is an important issue of federal law that requires resolution

by this Court. This failure by LEAF to address these

important considerations is in essence an admission by

LEAF that the petition does not satisfy the Court’s standards

for review and should lead to the conclusion that certiorari is

not appropriate in this case.

Furthermore, the Eleventh Circuit was correct in

upholding EPA’s approval of the Alabama underground

injection control ("UIC") program for Class II wells. EPA’s

determination that Alabama’s program for regulating

hydraulic fracturing meets the requisite standards for state

UIC programs set forth in section 1421(b) of the SDWA, 42

U.S.C. § 300h(b), is the type of technical judgment by a

federal regulatory agency that is entitled to substantial

deference. Moreover, in enacting section 1425 of the

SDWA, id. § 300h-4, Congress intended that states should

have flexibility in meeting the Act’s requirements when

establishing programs for regulating activities related to oil

and gas production. In light of these standards, EPA’s

conclusion that Alabama’s program satisfies the provision of

section 1421(b)(1)(B)(i) of the SDWA, id §

300h(b)(1)(B)(i), which requires operators to demonstrate

that their underground injection activities will not endanger

underground sources of drinking water, is more than amply

supported by the record. The Eleventh Circuit’s decision to

affirm EPA’s judgment should therefore be upheld.

ARGUMENT

I. LEAF HAS FAILED TO DEMONSTRATE

THAT ANY OF THE CONSIDERATIONS

GOVERNING REVIEW ON CERTIORARI

SUPPORT A GRANT OF THIS PETITION

The question presented for review by LEAF is an

exceedingly narrow one, i.e., whether the Eleventh Circuit

erred in upholding EPA’s approval of Alabama’s program

for regulating hydraulic fracturing as underground injection

under the SDWA. In this Court, LEAF questions only a

single aspect of EPA’s approval of Alabama’s program,

arguing that EPA erroneously determined that Alabama’s

program meets the requirements of section 1421(b)(1)(B)(@)

of the SDWA. That provision of the Act specifies that states

must require operators of underground injection wells to

demonstrate to the state that their underground injection

activities will not endanger drinking water sources, which is

defined under the Act to include injection activities that

result in the presence of contaminants in underground

sources of drinking water at levels that may violate national

primary drinking water regulations (known as "maximum

contaminant levels" or "MCLs") or that may otherwise

adversely affect the health of persons. LEAF concedes that

the regulations of the Alabama Oil and Gas Board regarding

hydraulic fracturing of CBM wells require operators to

demonstrate compliance with the MCLs but contends that

Alabama’s program does not require operators to make a

demonstration that hydraulic fracturing activities will not

otherwise adversely affect human health. Thus, the question

presented to the Court is a very narrow one regarding a very

specific and limited aspect of one state's UIC program.

In making this claim, LEAF has failed to demonstrate

that any of the considerations used by the Court in evaluating

whether to grant a petition for certiorari in fact support the

grant of this petition. According to Rule 10 of the Supreme

Court Rules, the Court will grant a writ of certiorari only for

compelling reasons. Rule 10 identifies a number of

considerations that govern the Court’s review of a petition

for certiorari, including whether: (a) a U.S. court of appeals

has entered a decision that is in conflict with the decision of

another U.S. court of appeals on an important matter, or has

decided an important federal question in a way that conflicts

with a decision by a state court of last resort, or has so far

departed from the accepted and usual course of judicial

proceedings, or sanctioned such a departure by a lower court,

as to call for an exercise of the Court’s supervisory power; or

(b) a U.S. court of appeals has decided an important question

of federal law that has not been, but should be, settled by the

Court, or has decided an important federal question in a way

that conflicts with relevant decisions of the Court.

LEAF’s failure to even address the applicability of

these considerations in its petition should be seen as an

implicit acknowledgement that the question presented by

LEAF for review does not meet the Court’s standards for

review on. certiorari. Indeed, a review of these

considerations demonstrates that none of the factors

identified by the Court as supporting a grant of a petition for

certiorari is present in this case.

First, the Eleventh Circuit’s decision to uphold the

Alabama program does not conflict with any decisions

issued by any other U.S. court of appeals or any state court.

In fact, the ruling by the court below represented the first

time that a federal court has been called on to consider

whether a state UIC program met the requirement of section

1421(b)(1)(B)(i). Therefore, there is no conflict for the

Court to resolve.

Similarly, the Eleventh Circuit’s decision does not

conflict with any decision of this Court in any manner. This

Court has not had occasion to interpret the requirements of

section 1421 of the SDWA. Moreover, the standards

employed by the Eleventh Circuit comport with this Court’s

decisions concerning judicial review of federal agency action

under the Administrative Procedure Act, 5 U.S.C. §§ 701-

7106. Therefore, there can be no conflict between the

Eleventh Circuit’s decision and any previous decisions of the

Court.

Finally, the issue presented in LEAF’s petition is not

the sort of “important question of federal law” with respect

to which the Court normally grants certiorari.’ For example,

the issue presented for review is not significant to the overall

administration of the SDWA as a whole, cf United States v.

Ruzicka, 329 U.S. 287 (1946) (issue concerned enforcement

authority of Department of Agriculture that affected overall

administration of the Agricultural Marketing Agreement

Act); the construction of the statute by the lower court is not

at odds with a well-established construction given the statute

by the administrative agency charged with its enforcement,

cf. Morton v. Ruiz, 415 U.S. 199, 201-02 (1974); nor is the

issue novel or troublesome and involved in numerous

pending cases in lower courts, cf. Laing v. United States, 423

U.S. 161, 167 (1967).

2 “Importance” in this context refers to the importance of the issue to the

public as a whole, not its importance to the parties. Rice v. Sioux City

Mem'l Park Cemetery, 349 U.S. 70, 79 (1955).

7

Moreover, the dispute in this case does not involve a

claim for very large amounts of money, cf. United States v.

Mitchell, 463 U.S. 206, 211 n.7 (1983) (case involved claim

for over $100 million); does not directly affect many

individuals, cf Patterson v . Lamb, 329 U.S. 539, 541 (1947)

(lower court decision affected thousands of World War I

draftees); nor are a large number of administrative actions

similar to the one at issue here pending before the Agency,

cf. FTC v. Jantzen, Inc., 386 U.S. 228, 229 (1967). Finally,

the dispute here does not relate to the nature and scope of

obligations between and among the States, cf Hinderlider v.

La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 101,

110 (1938); nor does it concern the scope of authority of

congressional committees, cf United States v. Rumely, 345

U.S. 41, 42 (1953).

Instead, LEAF’s certiorari petition simply challenges

one limited and very discrete aspect of an administrative

agency’s action in approving a single state’s comprehensive

plan in accordance with the requirements of a federal statute.

There is no indication that the decision of the Eleventh

Circuit in this case has any relevance whatsoever to the

enforcement of the SDWA generally, or that a large number

of lower courts and agencies are awaiting resolution of this

particular issue, or that there is any other way in which the

issue presented in LEAF’s certiorari petition can possibly be

construed as a matter of important national interest.

Because LEAF has presented no evidence of any

conflict between any courts on the issue that LEAF seeks to

bring before the Court, and because the subject matter of

LEAF’s petition is certainly not a matter of national import

of the sort that usually serves as the basis for a grant of a

petition for certiorari, this Court should deny LEAF’s request

for certiorari.

II. THE ELEVENTH CIRCUIT’S DECISION WAS

CORRECT

The Court should also deny the petition for certiorari

because the decision below was correct. The Eleventh

Circuit appropriately deferred to EPA’s expert judgment that

the Alabama program complies with the requirements of the

SDWA. EPA in turn correctly concluded that the Alabama

program satisfies the requirements of the Act that operators

demonstrate that their underground injection activities will

not endanger drinking water sources.

A. EPA's Determination Is Entitled to

Deference

EPA's determination that the Alabama program meets

the requirements of section 1421(b)(1)(B)(i) of the SDWA is

entitled to substantial deference. This determination is

reviewed under the deferential standards set forth in the

Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551-59,

701-06. Under the APA’s deferential standard of review, an

agency action cannot be overturned unless it is found to be

“arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law." 5 U.S.C. § 706(2)(A). The

scope of review under the "arbitrary and capricious" standard

is narrow and a court is not to substitute its judgment for that

of the agency. Motor Vehicle Mfrs. Ass'n v. State Farm Mut.

Ins. Co., 463 U.S. 29, 43 (1983).

In addition, the determination regarding the specific

steps that a state must take to satisfy the requirements of

section 1421(b)(1)(B)(i) has been left by Congress to EPA.

In such cases, considerable weight should be accorded to an

agency's construction of a statute it is designed to administer.

Chevron U.S.A. Inc. v. Natural Res. Defense Council, Inc.,

467 U.S. 837, 844 (1984). Moreover, in deciding whether a

state has taken sufficient steps to require an operator to

demonstrate that an underground injection activity will not

adversely affect human health, the Agency must utilize its

expertise regarding underground sources of drinking water

and the effectiveness of various regulatory measures to

protect such drinking water sources. In such circumstances,

a court must "defer to ‘the informed discretion of the

responsible federal agencies." Marsh v. Oregon Natural

Res. Council, 490 U.S. 360, 377 (1989) (citing Kleppe v.

Sierra Club, 427 U.S. 390, 412 (1976)). See also Babbitt v.

Sweet Home Chapter of Communities for a Great Or., 515

U.S. 687, 708 (1995) ("When Congress has entrusted [an

agency] with broad discretion, we are especially reluctant to

substitute our views of wise policy for [those of the

agency]."). Thus, EPA's approval of Alabama's program

should not lightly be overturned.

EPA's determination is also entitled to deference

because it is a product of a long and careful review process

by the Agency. The Alabama Oil and Gas Board adopted its

hydraulic fracturing regulations after consulting with EPA

and providing the public with an opportunity for comment on

the proposed regulations. EPA in turn approved the

Alabama regulations only after several public hearings and

consideration of extensive and detailed comments submitted

by LEAF and others. In approving the Alabama program,

EPA provided a detailed explanation of the rationale for its

decision and specifically addressed the arguments that LEAF

now advances in its petition. 65 Fed. Reg. 2889 (2000).

Thus, LEAF's arguments have been carefully considered at

every stage of this proceeding.

10

B. Section 1425 Applies to Hydraulic

Fracturing Activities and Provides States

with Significant Flexibility in Meeting the

Requirements of the SDWA

The Act provides Alabama with significant flexibility

in meeting the requirements for UIC programs, including the

requirement of section 1421(b)(1)(B)(i). As the court below

found, EPA was authorized to review the adequacy of the

state’s program relating to permitting of hydraulic fracturing

activities pursuant to the standards of section 1425 of the

Act, 42 U.S.C. § 300h-4. See Legal Envt'l Assistance

Found., Inc. v. U.S. Environmental Protection Agency, 276

F.3d 1253, 1258-61 (11™ Cir. 2001). Section 1425 provides

that, in seeking approval of a program for the regulation of

certain types of underground injection that are associated

with oil and gas development, a state may demonstrate that

its program meets the statutory standards for state programs

set forth in section 1421(b)(1) and is an effective program to

prevent underground injection which endangers drinking

water sources and need not demonstrate compliance with

each of the specific detailed regulatory requirements

promulgated by EPA for UIC programs, see 40 C.F.R. Parts

144-146.

Congress enacted section 1425 in 1980 in order to

provide oil and gas producing states with some degree of

flexibility in meeting the requirements of the Act for

approval of state UIC programs. As the House Committee

on Interstate and Foreign Commerce noted:

Most of the 32 states that [already] regulate

underground injection related to the recovery

or production of oil or natural gas (or both)

believe they have programs already in place

1]

that meet the minimum requirements of the

Act including the prevention of underground

injection which endangers drinking water

sources. This is especially true of the major

producing states where underground injection

control programs have been underway for

years. /t is the Committee’s intent that states

should be able to continue these programs

unencumbered with additional Federal

requirements if they demonstrate that they

meet the requirements of the Act.

H.R. Rep. No. 96-1348, at 5 (1980), reprinted in 1980

U.S.C.C.A.N. 6080, 6084 (emphasis addec). See also 126

Cong. Rec. H931 (daily ed. Sept. 20, 1980) (statement of

Rep. Broyhill) (section 1425 “should free the producing

States which have been doing a good job of regulating

underground injection relating to oil and natural gas from the

requirements of EPA regulations and allow them to continue

their current programs”). Congress further emphasized that

state programs relating to oil and gas production should be

subject to as little federal control as possible by providing

that EPA regulations for UIC programs may not "interfere

with or impede" oil and gas production unless such

requirements are essential to ensure that underground

sources of drinking water will not be endangered. 42 U.S.C.

§ 300h-1(b)(2).

Consistent with these congressional directives, EPA

has long recognized that, in seeking approval of programs

pursuant to section 1425, states have flexibility in meeting

the standards of section 1421 of the Act. EPA has not issued

specific regulations setting forth requirements for such

programs, but has instead issued guidance that states may

follow in developing programs pursuant to section 1425. See

12

46 Fed. Reg. 27333 (1981). EPA's guidance is "much less

detailed" than the regulations that apply to other UIC

programs and "leaves a great deal more discretion to the

State to develop and EPA to approve State UIC programs

under Section 1425." Jd. at 27334.

Thus, Congress intended that States be given

flexibility in meeting the statutory requirements of section

1421 as they apply to activities such as hydraulic fracturing

that relate to oil and gas production. LEAF has requested

that the Court grant certiorari in order to closely examine the

details of an EPA-approved program that was evaluated

pursuant to a statutory provision adopted by Congress with

the specific purpose of granting the states a substantial

degree of latitude in meeting statutory criteria. There is no

reason for the Court to conduct such a review.

G EPA Correctly Determined that Alabama’s

Program Complies With the Provision of

the Act Requiring Applicants to Satisfy the

State That Underground Injection Will Not

Endanger Drinking Water Sources

In light of these standards, it is evident that EPA's

determination that the Alabama program satisfies the

requirements of section 1421(b)(1)(B)(i) finds ample support

in the record. As noted above, while the Act provides that a

well operator must demonstrate that its underground

injection activity will not endanger drinking water sources, it

does not specify how such a demonstration must be made.

Rather, EPA's regulatory guidance provides that such a

demonstration may be made in a variety of ways. 46 Fed.

Reg. at 27336. The Agency guidance specifies that the

burden must remain on the operator to provide the state with

sufficient information to determine that the proposed

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underground injection will not violate maximum

contaminant levels or otherwise adversely affect the health

of persons, but provides states with flexibility in determining

what information must be submitted by an operator. /d.

Moreover, the EPA guidance indicates that the state need not

require the submission of specific information that is already

in the state's files. /d.

Consistent with these guidelines, the Alabama

program contains numerous provisions that ensure that

hydraulic fracturing activities will not adversely affect the

health of persons. For exampie, the Alabama regulations

mirror EPA regulations by specifically prohibiting hydraulic

fracturing activities that would adversely affect human

health. Ala. Admin. Code r. 400-3-8-.03(2). This express

prohibition alone should be more than sufficient to protect

drinking water sources.

However, the Alabama regulations go even further

and do not rely solely on this prohibition against adversely

affecting human health in order to satisfy the requisite

criteria for approving this program. For example, the

regulations contain numerous other key provisions to ensure

that hydraulic fracturing activities do not adversely affect

public health. These provisions include a prohibition on

hydraulic fracturing within 300 feet of the surface, where

most drinking water wells are found. Jd. r. 400-3-8-.03(d).

For proposed fracturing activities from 300 to 750 feet below

ground surface, an applicant must provide information

regarding the locations of nearby drinking water wells and

the Alabama Oil and Gas Board is authorized to deny

approval of a proposed hydraulic fracturing activity if any

such wells could be adversely impacted by the proposed

activity. Jd. r. 400-3-8-.03(c)(3). Moreover, consistent with

EPA guidance, such applicants must provide the Board with

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a description of the proposed fracturing operation, including

the maximum length of the fractures to be created in the

coalbed formation and the types of fluids and materials to be

used in the fracturing operations. /d. r. 400-3-8-.03(c)(4). In

addition, all applicants seeking approval of underground

injection activities must provide well logs showing that there

is an adequate confining layer to prevent upward migration

of fracturing fluids. Jd. r. 400-3-8-.03(a)(5). Applicants

must also provide information to the Board concerning the

construction of the CBM well that is to be fractured in order

to demonstrate that the well itself will not serve as a conduit

for the transmission of contaminants from deeper formations

where fracturing is to occur to shallower formations where

drinking water wells may be found. /d. R. 400-3-8-.03(a)(2),

(3). These provisions are more than adequate to satisfy the

requirements of the SDWA, particularly in light of the fact

that there is no evidence that any drinking water wells have

ever been contaminated due to hydraulic fracturing

activities.”

> This lack of evidence of actual contamination has recently been

reaffirmed in a draft study released by EPA. U.S. Environmental

Protection Agency, Evaluation of Impacts to Underground Sources of

Drinking Water by Hydraulic Fracturing of Coalbed Methane Reservoirs

(2002), available at www.epa.gov safewater/uic/cbmstudy.html. EPA

has described this study as the most extensive study ever undertaken of

the potential impact of the hydraulic fracturing of CBM wells on

underground sources of drinking water. The report concludes that the

potential threat to underground sources of drinking water posed by

hydraulic fracturing of coalbed formations such as occurs in Alabama is

low and that, although thousands of coalbed methane wells are

hydraulically fractured nationwide on an annual basis, there is no

persuasive evidence that any drinking water wells have been

contaminated by such fracturing operations. /d. at ES-1. In light of this

low level of risk, the information regarding proposed hydraulic fracturing

operations that operators must submit to the Alabama Oil and Gas Board

is more than sufficient for the Board to satisfy itself that such

operations will not adversely affect human health.

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Thus, LEAF’s argument that the Alabama UIC program

does not comply with the requirements of section

1421(b)(1)(B)Q) is wholly without merit. This Court should

not grant certiorari in order to hear arguments on appeal

from a decision to approve the Alabama UIC program that

was Clearly based on sound decisionmaking.

CONCLUSION

LEAF’s petition for certiorari should be rejected for

several reasons. First, LEAF’s petition does not offer a

single justification for granting certiorari under the standards

normally applied by the Court. Indeed, LEAF’s failure to

present such an argument is quite possibly attributable to the

fact that LEAF’s petition does not resemble in any manner

the sort of dispute that the Court normally deems worthy of

review. There is no conflict in the lower courts on the issue

presented by LEAF, the Eleventh Circuit opinion does not

clash with Supreme Court precedent, and LEAF’s petition

does not present any pressing issue of national concern of the

type that might prompt the Court to grant certiorari.

Furthermore, LEAF’s substantive position has no

merit. The Alabama UIC program complies with the

statutory requirements of the SDWA, and EPA was correct

to approve the revised program. The Eleventh Circuit rightly

deferred to EPA’s judgment on this matter and upheld the

decision with respect to the program’s compliance with the

requirements of section 1421(b)(1)(B)(i). Indeed, the

Alabama UIC program contains language nearly identical to

that found in the relevant SDWA section. LEAF’s argument

that the Alabama program somehow does not comply with

this section is, therefore, wholly without merit. For these

reasons, LEAF’s petition for certiorari should be denied.

16

ee

Dated: September 18, 2002

Respectfully Submitted,

Daniel M. Steinway

Thomas C. Jackson*

Kelley Drye & Warren LLP

1200 19" Street, NW, Ste 500

Washington, DC 20036

(202) 955-9600

Counsel for Amici Curiae

*Counsel of Record

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