Parks and Reg: The Threat of Drilling in National Parks and the Role for Progressive State Regulation

By Jackson Erpenbach*

In December 2016, the National Park Service implemented updated regulations for oil and gas drilling activities on park land.[1] The new standards under Part 9, Subpart B (“Rule 9B”) address a number of long-neglected deficiencies which have persisted since the rule’s inception in 1979.[2] Recent deregulatory moves by the Trump Administration, however, already threaten to repeal the rule. A March 28th executive order instructed agencies to “review” and “rescind” environmental regulations “that unduly burden the development of domestic energy resources.”[3] Given the damage that unregulated drilling could do to the nation’s parklands, the administration should refrain from any weakening of the NPS’s new rule. If protections weaken, however, state governments should utilize their significant authority to enforce their own regulations to preserve federal parklands.

The Threat of Unregulated Drilling

Though the federal government owns the land that makes up the National Park System, private parties still own subsurface mineral rights in forty-two national parks, creating “split-estates.”[4] Active drilling operations are present in twelve of these parks, totaling over five-hundred wells.[5] If demand for drilling sites grows, thirty additional parks could be affected.[6]

The NPS promulgated Rule 9B to minimize the harmful consequences of drilling operations by enforcing the use of safer methods and technologies.[7] In December 2016, the NPS implemented a number of improvements to the rule. Among the most meaningful were a closing of the grandfather clause, which previously exempted more than half the drilling operations on NPS land, and the authorization to charge operators higher fees to enhance enforcement efforts and ensure proper cleanup of well sites.[8] Recent actions by both the administration and Congress could threaten these changes and, as a result, the health of national parks.[9]

Unregulated drilling operations pose a distinct threat to both the ecological sustainability of the parklands and the enjoyment of visitors.[10] Among the harms documented by the NPS are degradation of the air, surface water, ground water, and soil; disruption of migratory routes and endangered habitats; disturbance of sensitive cultural sites; and noise pollution that can be heard from miles away.[11] With expanded drilling operations, such harms could significantly degrade the value of national parks.[12] That value, it must be noted, is immense. In addition to providing vital protections for some of the country’s most important biological hotspots,[13] national parks are also instrumental to cultural conservation,[14] enhance economic development,[15] and advance critical research efforts including breakthroughs in climate science.[16] Faced with possible non-enforcement or even withdrawal of federal protections, focus now shifts to available legal approaches.

The Role of State Regulation

The simplest solution would be for the administration to keep Rule 9B in place and provide sufficient funding for enforcement. Federal action could also come from Congress, which could authorize the purchase of private mineral rights underlying parklands.[17] This approach would permanently resolve the issue of split-estates that gave rise to Rule 9B in the first place. Prospective solutions, however, should not, and do not, end at the federal level. State governments have the authority to impose their own environmental regulations in national parks.

Current jurisprudence outlines a bounded range of authority within which states can impose meaningful protections on federal lands, including national parks that lie within their territory. Several cases require mention. First, in Granite Rock the Supreme Court upheld the enforcement of a California state mining permitting program on federal lands.[18] Unless federal law preempts states on the issue in question, states have the authority to promulgate “reasonable environmental regulations” and use the “full extent of their authority in enforcing [those regulations] on federal lands.”[19] Federal preemption is established either where Congress evidences an intent to exclusively occupy a field or where state law conflicts with federal law by standing as an obstacle to the objectives of Congress.[20] The Court determined that Congress did not intend to preempt California’s permitting requirement nor did California’s regulation conflict with federal law.[21] Here, however, the court warns that a state rule which crosses the line between regulation of an activity and prohibition would likely conflict with federal regulations.[22]

This limitation on state authority to prohibit was articulated in the 8th Circuit’s Lawrence County opinion which held that a county ordinance prohibiting new surface mining permits was preempted.[23] The court determined that because surface mining was the only viable method in the area, the ordinance was a de facto ban on mining.[24] A ban would, the opinion continues, run directly counter to relevant federal law which sought to encourage mining while merely regulating negative consequences.[25] These two decisions, then, establish two extremes within which states can enforce regulations with California’s relatively unobtrusive permit on one end and Lawrence County’s functional ban on the other.

A string of recent cases has provided significant guidance on the admissibility of regulations that fall within this spectrum and establish an expansive basis for state action. Two opinions from the District of Oregon held that state regulations which effectively prohibited a common form of mining fell short of the standard in Lawrence County because other forms of mining were still permissible.[26] A state regulation is not necessarily preempted by federal law even if it would render certain mining operations commercially impracticable.[27] Additionally, the California Supreme Court upheld a moratorium on suction mining even though it was the only commercially viable method available.[28] Importantly for state policymakers, the court noted that judges should be hesitant to strike down state regulations on federal lands because of an “overzealous” preemption doctrine.[29] Instead, there should be a “strong presumption against preemption in areas where the state has a firmly established regulatory role.”[30] The U.S. Supreme Court could clarify, or greatly disrupt, this issue if it chooses to hear the case.[31]

To avoid preemption challenges, state regulations should fall short of outright bans on drilling in parklands, but this leaves significant authority to promulgate meaningful protections. States have authority to regulate drilling operations on parklands whether to prevent contamination of nearby ecosystems or to sanction and clean up infractions after they have occurred. Though states have historically fallen short of federal protection[32], they could choose to exceed federal regulations[33] while resisting industry capture[34] and adapting to local conditions and needs.[35] Additionally, the Supreme Court’s test for federal preemption leaves the states with little to fear from preemption by Rule 9B itself given that its primary stated purpose is to “protect federally . . . owned lands [and] water” and the “uses or experiences” of NPS visitors.[36] State regulation complements these goals rather than posing an obstacle to them.

Conclusion

NPS’s updated Rule 9B is an important step in mitigating the damage that drilling operations inflict on National Parks. The Trump Administration should not take any further steps that may endanger the Rule’s effectiveness. If, however, the federal government abdicates its role as protector of the nation’s environmental resources, states can and should step up by implementing necessary regulatory protections. State action on federal lands can be a small part of the broader push that scholar Heather Gerken terms “progressive federalism.”[37] Federalism, Gerken argues, can be a powerful tool for achieving progressive political goals, particularly in the face of deregulation at the federal level.[38] Given their importance, states should make the preservation of national parks one such progressive goal.

*Jackson Erpenbach is a junior editor with MJEAL. He can be reached at jerp@umich.edu.


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[1] General Provisions and Non-Federal Oil and Gas Rights, 81 Fed. Reg. 77,972 (Nov. 4, 2016).

[2] 36 C.F.R. § 9.30 (2016).

[3] Exec. Order No. 13,783, 82 Fed. Reg. 16,093 (Mar. 31, 2017).

[4] General Provisions and Non-Federal Oil and Gas Rights, 81 Fed. Reg. at 77,973–74.

[5] Id.

[6] Id.

[7] See National Resource Defense Council v. National Park Service, 250 F.Supp.3d 1260, 1299 (M.D. Fla. 2017); see also Sierra Club v. Mainella, 459 F.Supp.2d 76, 108 (D.D.C. 2016) (determining that a drilling operation approved by the NPS threatened park resources).

[8] See Jamila Odeh, Hit the Gas on the Updated National Park Service Regulations, Mich. J. Envtl. & Admin. L. Blog (Jan. 27, 2017), http://www.mjeal-online.org/hit-the-gas-on-the-updated-national-park-service-regulations/; Nicholas Lund, The Facts on Oil and Gas Drilling in National Parks, National Parks Conservation Association (Mar. 29, 2017), https://www.npca.org/articles/1471-the-facts-on-oil-and-gas-drilling-in-national-parks.

[9] See Darryl Fears, This Lawmaker Wants to Ease Rules on Drilling in National Parks, and Conservationists Aren’t Happy, Wash. Post (Feb. 1, 2017), https://www.washingtonpost.com/news/energy-environment/wp/2017/02/01/this-lawmaker-wants-more-drilling-in-national-parks-and-he-just-became-more-powerful/?utm_term=.d67c102b8ff7; House Moves to Encourage Drilling in National Parks, National Parks Conservation Association (Jan. 31, 2017), https://www.npca.org/articles/1462-house-moves-to-encourage-drilling-in-national-parks#sm.000kc1yt814qefh4ujr126vrfw8hf.

[10] General Provisions and Non-Federal Oil and Gas Rights, 81 Fed. Reg. at 77,974.

[11] Id.

[12] See Theodore Roosevelt IV, Preserve our National Parks, USA Today (Aug. 23, 2013), https://www.usatoday.com/story/opinion/2013/08/23/roosevelt-fracking-north-dakota-column/2682773/.

[13] Preserving Biodiversity, National Park Service, https://nature.nps.gov/biology/biodiversity/ (Last updated May 27, 2015).

[14] Antoinette Jackson, More than Scenery: National Parks Preserve our History and Culture, The Conversation (July 29, 2016), http://theconversation.com/more-than-scenery-national-parks-preserve-our-history-and-culture-57708.

[15] Todd Davison, Government Must Preserve National Parks, The Hill (Sept. 18, 2013), http://thehill.com/opinion/op-ed/323235-government-must-preserve-national-parks (detailing that national parks receive over 300 million visitors a year, resulting in over $30 billion in spending and supporting over a quarter of a million jobs).

[16] Jim Robbins, Science in the Wild: The Legacy of the U.S. National Park System, Yale Environment 360 (Aug. 24, 2016), http://e360.yale.edu/features/science_in_the_wild_legacy_of_the_us_national_park_system.

[17] Elizabeth Ann Glass Geltman, Oil & Gas Drilling in National Parks, 56 Nat. Resources J. 145, 191 (2016)

[18] California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 594 (1987).

[19] Id. at 580.

[20] Id. at 581 (“[S]tate law can be pre-empted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted. If Congress has not entirely displaced state regulation over the matter in question, state law is still pre-empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.” (internal citations removed)).

[21] Id. at 594.

[22] Id. at 586.

[23] South Dakota Mining Ass’n, Inc. v. Lawrence County, 155 F.3d 1005, 1011 (8th Cir. 1998).

[24] Id. at 1007.

[25] Id. at 1009–10.

[26] Pringle v. Oregon, No. 2:13–cv–00309–SU, 2014 WL 795328, at *8 (D. Or. Feb. 25, 2014); Bohmker v. State, 172 F. Supp. 3d 1155, 1165 (D. Or. 2016), appeal filed, No. 16-35262 (9th Cir. 2017).

[27] Bohmker, 172 F. Supp. 3d at 1166.

[28] People v. Rinehart, 1 Cal. 5th 652, 674 (2016) (petition for cert. filed Feb. 2, 2017).

[29] Id. at 660–61 (“Dual sovereignty is the rule, federal exclusivity the exception.”).

[30] Id. at 661; see also Richard Frank, The California Supreme Court’s Top Environmental Law Decisions of 2016, Legal Planet (December 29, 2016), http://legal-planet.org/2016/12/29/the-california-supreme-courts-top-environmental-law-decisions-of-2016/ (identifying that the decision’s “critical significance is in rejecting a sweeping claim of federal preemption in favor of a strong judicial defense of state (and local) environmental regulation”).

[31] See Rinehart v. California, 137 S. Ct. 2149 (May 15, 2017) (requesting the perspective of the Solicitor General).

[32] Jennifer Errick, Why Don’t States Run National Parks?, National Parks Conservation Association (Oct. 24, 2013), https://www.npca.org/articles/291-why-don-t-states-run-national-parks.

[33] Sean Hecht, “States’ Rights” and Environmental Law: California on the Front Lines, Legal Planet (Mar. 6, 2017), https://legal-planet.org/2017/03/06/states-rights-and-environmental-law-california-on-the-front-lines/.

[34] Gabrielle Cuskelly, Factors to Consider in Applying a Presumption Against Preemption to State Environmental Regulations, 39 Ecology L.Q. 283, 318 (2012).

[35] Nicolas Loris, The Federal Land Freedom Act: Empowering States to Regulate Energy Will Yield Better Economic and Environmental Results, Heritage Foundation (Nov. 21, 2016), http://www.heritage.org/testimony/the-federal-land-freedom-act-empowering-states-regulate-energy-will-yield-better-economic.

[36] 36 C.F.R. § 9.30(a) (2016).

[37] Heather K. Gerken, Distinguished Scholar in Residence Lecture: A User’s Guide to Progressive Federalism, 45 Hofstra L. Rev. 1087 (2017).

[38] Id. at 1091.

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