With anti-fracking citizens and activists loudly protesting plans by Helis Oil & Gas Co. to drill a well in St. Tammany Parish (northeast of Mandeville) that anticipates the use of "hydraulic fracturing" to extract hydrocarbons, the parish decided to sue the Commissioner of Conservation, who heads the Office of Conservation within the Louisiana Department of Natural Resources.
The lawsuit, which was filed in East Baton Rouge Parish state court in June 2014, seeks:
(1) a declaration that the zoning ordinances of St. Tammany Parish be given "primary consideration" by the Office of Conservation in its handling of permit applications that pertain to the parish;
(2) an injunction halting the Office of Conservation's issuance of orders establishing drilling units in the parish "until such time as [the Commissioner] can prove compliance with all laws not currently being complied with, as well as regulations that are admitted should be in place, but are not"; and
(3) a declaration that "St. Tammany Parish has the authority to ban the practice of hydraulic fracturing, or fracking, during oil and gas well drilling operations".
A September 2014 amendment to the lawsuit adds a fourth request, that the Court declare the drilling unit for the proposed well "invalid, null, void, and of no effect."
Can St. Tammany Use Zoning to Deny Drilling Permits?
What does St. Tammany's request that the Commissioner be required to give parish zoning ordinances "primary consideration" really mean? Is St. Tammany arguing that if its zoning ordinances prohibit drilling wells on certain property, that the Commissioner of Conservation is legally barred from issuing a drilling permit? As the State of Louisiana (through the Commissioner) noted in its legal memorandum in support of "exceptions" that seek to have the lawsuit thrown out of court, Louisiana law clearly provides that the Commissioner, not parish governments or any other agencies or political subdivisions, has exclusive authority to issue drilling permits.
The issuance of a permit by the commissioner of conservation shall be sufficient authorization to the holder of the permit to enter upon the property covered by the permit and to drill in search of minerals thereon. No other agency or political subdivision of the state shall have the authority and they are hereby expressly forbidden to prohibit or in any way interfere with the drilling of a well or test well in search of minerals by the holder of such permit. La. R.S. 30:28(F).
The State argues that local ordinances purporting to regulate drilling or govern the consideration of permit applications are preempted by the pervasive state regulatory scheme, citing Energy Management Corp. v. City of Shreveport, 397 F.3d 297 (5th Cir. 2005) and 467 F.3d 471 (5th Cir. 2006). St. Tammany argues that the legislature granted it express authority to regulate land use through zoning ordinances, citing La. R.S. 33:4776. However, a longstanding general rule of statutory interpretation is that "the specific controls the general." State in Interest of A.C., 643 So. 2d 719, 730 (La. 1994). While St. Tammany has been granted general authority to enact zoning ordinances, the Office of Conservation has been granted specific and exclusive authority to grant drilling permits. Does the statute that expressly forbids St. Tammany from prohibiting or interfering with the drilling of a well trump the statute that grants St. Tammany general authority over zoning in the parish?
Can St. Tammany Secure a Parish-Wide Unitization Moratorium?
Relying heavily on the findings of a legislative audit of the Office of Conservation, St. Tammany argues that "it would be ill-advised and potentially catastrophic to allow another unit to be constructed when the Office of Conservation is incapable of regulating and maintaining current wells." Pet. at ¶ 35. That certainly reads like a public policy argument and not a grounds for what would effectively be a sweeping, open-ended moratorium on the issuance of drilling units in St. Tammany Parish until such time as a state court judge determined that the Office was in compliance with "all laws" and future regulations (extremely broad language that seems problematically vague). Notably, St. Tammany did not cite any legal authority for the requested moratorium in its petition. It remains to be seen whether the parish will offer persuasive authority in opposition to the State's effort to dismiss the requested injunction.
As part of its argument seeking to dismiss the parish's request for a moratorium on unit orders, the State points out that such orders are not drilling permits. Department of Natural Resources communications director Patrick Courreges said that a drilling and production unit means that "if the well is drilled and is successful, this is who gets a piece of it." "Getting a piece of it" means sharing in royalties from production. The State has argued that "divvying up mineral rights via compulsory unitization has no relation whatsoever to the irrelevant and/or spurious factual allegations of the Plaintiff." State's Memorandum in Support of Exceptions at p. 11.
After the filing of St. Tammany's lawsuit and the State's exceptions, the Commissioner of Conservation issued a drilling and production unit order governing the property where Helis has proposed to drill its well. Thus, the request for a moratorium on such orders would have no bearing on the proposed well that prompted the parish's lawsuit. With the order already issued, St. Tammany has added a new request for the unit order to be declared invalid (which is discussed below).
A Challenge to the Prohibition of Advisory Opinions?
St. Tammany wants a declaration from the Court that "St. Tammany Parish has the authority to ban the practice of hydraulic fracturing, or fracking, during oil and gas well drilling operations". According to the Louisiana Supreme Court, "Cases submitted for adjudication must be justiciable, ripe for decision, and not brought prematurely." Louisiana Federation of Teachers v. State, 94 So. 3d 760, 763 (La. 2012). To be a justiciable controversy, there needs to be "an existing actual and substantial dispute, as distinguished from one that is merely hypothetical or abstract". Id. "[T]he dispute presented should be of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Id. In a nutshell, "The jurisprudence of this court is well settled that courts will not render advisory opinions." Id.
The State indicated that it was unaware of any St. Tammany ordinance that bans fracking, and the parish's lawsuit does not identify any such ordinance. Asking the Court to declare that "St. Tammany Parish has the authority to ban the practice of hydraulic fracturing, or fracking, during oil and gas well drilling operations" when the parish has not passed such an ordinance appears to be a textbook example of seeking a prohibited advisory opinion. We will have to wait for St. Tammany's memorandum in opposition to the State's exceptions to see what the parish's response is to this legal argument.
Seeking to Invalidate the Unit Order
St. Tammany's Amended Petition adds a request that the August 29, 2014 unit order issued by the Commissioner of Conservation be declared invalid because the establishment of the drilling unit violated the St. Tammany Parish Unified Development Code. The parish appears to argue that because the drilling unit encompasses land that is not zoned for drilling, it must be invalid. In addition to being subject to the State's legal arguments discussed above, the State might argue that another shortcoming in this request for relief is the fact that a unit order is not a drilling permit. Since the unit order does not authorize drilling, it is unclear how, even if parish zoning ordinances were applicable, it violates such ordinances. As discussed above, a unit order is not a permit to drill.
Where Things Go From Here
The State argues that "[t]he Parish is simply out of line in its effort to use unorthodox and premature litigation to infringe on the deliberative process of an independent state agency" and has asked the Court to grant its exceptions and dismiss all of the parish's claims. As of the date this blog is being posted, a hearing on the State's exceptions is set for October 27, 2014. However, on September 10, 2014 Helis applied for a drilling permit, and on September 12, 2014, St. Tammany filed a motion seeking to get before the Court for a hearing as soon as possible. It remains to be seen whether St. Tammany can offer any winning responses to the well-supported exceptions seeking to dismiss the lawsuit.
Several news articles addressing this litigation can be found at: