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In today's era of environmental awareness and increasing energy costs, hydraulic fracturing and shale gas development have taken leading positions in the public consciousness. Over the past decade, we have worked with clients on virtually all regulatory aspects of hydraulic fracturing development, particularly leveraging our strong experience with federal regulation. We have advised oil and gas interests on the rapidly evolving issues relating to the federal government's authority, inclination, and practical ability to control various aspects of shale gas development.

Over the past few years, the regulatory attack on hydraulic fracturing has increased dramatically and will continue to present serious challenges to the industry. In fact, some of this regulatory activity may actually be supported by the plaintiffs' bar. The regulatory side of hydraulic fracturing is not a separate "front," but rather is one integral part of a comprehensive strategic plan. Experience has taught us that the representation of our clients in environmental and toxic tort cases can create a web of interrelated litigation, regulatory, and public relations challenges that need to be carefully coordinated and approached consistently. Where the litigation also brings in major policy priorities of the regulatory agencies, it is vital that this type of coordination be in place. At every step, a company's reputation is at stake with environmental agencies, affected communities, the news media, shareholders, and customers. We believe a company defends itself best when it speaks with one voice before regulators, the public, the judge, and the jury.

Our attorneys have been monitoring hydraulic fracturing litigation for many years. We have previously faced some of the plaintiffs' lawyers who are filing these lawsuits and know their "playbook." Frequently, the national plaintiffs' firms that appear to be fomenting this litigation – backed by substantial resources from asbestos, tobacco and other large scale tort litigation – engage regulators and the media to build a chorus of allegations that resurface in lawsuits and can bias jurors against defendants. We have seen this strategy play out in many similar mass tort dockets over the last ten years.

Representative Engagements

  • Represented America's Natural Gas Alliance, as well as a large independent gas producer, in connection with Bureau of Land Management's (BLM) hydraulic fracturing rulemaking, including the development and submission of extensive comments on behalf of each.
  • Provided ongoing advice and analysis to an independent gas producer on strategic options for addressing the anticipated final BLM hydraulic fracturing rule, including potential legal challenges. As part of those efforts, we have communicated regularly with BLM staff with respect to the rule's development, and we have also been actively coordinating with other stakeholders to develop a consistent, broad-based strategy to respond to BLM's actions.
  • Advised various clients regarding EPA's oil and gas New Source Performance Standard (NSPS)/National Emissions Standard for Hazardous Air Pollutants (NESHAP) Subpart 0000 (Quad 0) rule.
  • Filed litigation on behalf of an industry trade association against the final Quad 0 rule. We are currently participating in discussions between industry and the agency regarding that litigation and EPA's reconsideration.
  • Prepared comments on EPA's policy concerning diesel in hydraulic fracturing fluids on behalf of a large independent operator; we continue to advise this client and another industry trade association on various strategies to address issues concerning agency authority and implementation in connection with the policy.
  • Represented a major service company in responding to an EPA information request for sensitive hydraulic fracturing information and in continuing matters relating to EPA's hydraulic fracturing study, the disclosure of potentially sensitive and/or proprietary information, and other anticipated EPA regulatory actions.
  • Represented a large independent gas producer with respect to a dispute over the scope of regulatory authority asserted by the Army Corps of Engineers, under the Clean Water Act (CWA), and that asserted by BLM, with respect to shale gas operations and hydraulic fracturing.
  • Engaged with EPA on behalf of a natural gas producer in response to a high-profile and controversial investigation of alleged groundwater contamination purportedly attributed to hydraulic fracturing operations; EPA's activities implicated issues of sound science relating to an agency study and associated analyses.
  • Defended a large independent gas producer in connection with the investigation of contamination alleged to originate with fracturing operations, and ultimately demonstrated to originate with unrelated historical operations.
  • Defended a large natural gas producer in successfully avoiding threatened CWA citizen suits related to hydraulic fracturing operations in the Marcellus shale.
  • Advised a major oil service company concerning Clean Air Act regulation of engines employed in hydraulic fracturing operations.
  • Counseled a mining company and a large oil service company concerning public lands issues associated with mining sand for use as proppant in hydraulic fracturing operations. 
  • Advise another large independent natural gas and oil producer on work regarding local attempts to regulate hydraulic fracturing and state preemption of those rules.
  • Advised clients on various other EPA regulatory and investigatory issues pertaining to hydraulic fracturing, including, among other things, EPA's diesel guidance, the petitions relating to the scope of Toxic Substances Control Act (TSCA) and Toxics Release Inventory (TRI) obligations, potential Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) issues, issues with respect to EPA's anticipated action on the coalbed methane (CBM)/shale gas Effluent Limitation Guidelines (ELGs), and the conduct of EPA's hydraulic fracturing study.

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Crowell & Moring LLP is an international law firm with offices in the United States, Europe, MENA, and Asia that represents clients in litigation and arbitration, regulatory and policy, and transactional and corporate matters. The firm is internationally recognized for its representation of Fortune 500 companies in high-stakes litigation and government-facing matters, as well as its ongoing commitment to pro bono service and diversity, equity, and inclusion.

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