2018 OFFICIAL PUBLICATION OF THE MONTANA PETROLEUM ASSOCIATION
The case against the Beartooth Front District CONTINUEd
ONLY IN MONTANA
Be it objections to leases, lawsuits, pushback or petitions, each inevitable
obstacle to development demonstrates a right that exists exclusively
in Montana: broad and unfettered protest ability.
Montana is the lone oil and gas state that allows anyone, anywhere to
protest a proposed well. The opportunity to go before the Board of Oil
and Gas Conservation (BOGC) ahead of approval for drilling operations
is afforded to everyone, regardless of whether a person has a legal
right to the proposed property. This unlimited protest ability holds industry
to a higher standard by placing an additional burden of proof on
companies to address concerns brought forth by the public.
If an application to drill is protested, the BOGC considers the validity
of claims made during public hearings. The right to protest
must not be confused with the right to unjustly prevent or impede
the property right to legal development. Often, protests are based on
false, ill-conceived notions about oil and natural gas, or the temporary
inconvenience of a drilling operation - such as noise, increased
traffic, and dust. Akin to any construction operation, these effects do
not justify the denial of a permit to operate.
Organizers behind the Beartooth Front petition in Stillwater County
have been frequent flyers at hearings of the Board of Oil and Gas,
routinely protesting drilling applications all over the state. In public
hearings on protested applications, the Board has often allowed testimony
to carry on for hours at a time, giving everyone the opportunity
to express their concerns. The reasoning behind Board decisions
to permit drilling applications despite opposition, is that protests are
largely rooted in ideologically-driven fears about oil and natural gas
development, rather than on the environmental track record of past
drilling and fracturing (fracking) operations.
REGULATED ENOUGH ALREADY
Protest ability is not the only area in which Montana regulators up
the ante for responsible development. Exploration and production
activities are heavily regulated by state law and agency rules administered
by the Montana Department of Environmental Quality (DEQ)
and the BOGC (See Exhibit C).
Existing regulation for air and water quality (partial list)
The Montana Ambient Air Quality Standards (MAAQS) establish
statewide targets for acceptable amounts air pollutants to protect
Air Quality: Emission Control Requirements for Oil and Gas Well
Operating Prior to Issuance of a Montana Air Quality Permit, ARM
17-8-1601 through 1606
Montana water quality is regulated under MCA 75-5-301, 302
Montana Water Quality Act; and in administrative rule under ARM
17.30.601 through 641 - Surface Water, and ARM 17.30.1001 through
1045 – Groundwater
The BOGC is a quasi-judicial board comprised of members with
specific qualifications that best represent all interests in Montana.
State law requires the Board to include landowners, both with and
without minerals, three members with industry experience, an attorney,
and a member of the public at large. This makeup lends a unique
perspective and a balanced approach to the regulation and oversight
of oil and gas development. ¬¬
In addition to managing oil and gas permitting, the BOGC has
rulemaking authority, and responds to concerns of the public. During
the height of controversy surrounding hydraulic fracturing (2011),
the Board proactively adopted rules to further safeguard Montana’s
most precious natural resources.
As the result of rules set by the Board, prior to receiving a permit
to drill, oil and gas operators working in Montana must verify their
operations can withstand high-pressured, fracture stimulation, necessary
for the protection of the environment, including groundwater.
Chemical additives used in stimulation activities (hydraulic fracturing)
must also be revealed to the Board and made publicly available.
In the 2017 Legislature, disclosure requirements first established by
the BOGC were further strengthened and put into law.
The Board has also expanded the notification rules. Now, prior
to drilling, companies must provide personalized notification to all
owners of occupied dwellings within a quarter mile of a proposed
well, giving additional consideration to landowners without mineral
rights. Companies have long been required to post public notices in
major newspapers and local papers in the area of proposed drilling,
but they are now required to contact nearby landowners directly.
These rules are just the tip of the iceberg on oil and gas regulation.
THE LAST WORD
Bearing in mind the challenges to continued exploration and production
in Montana, the current regulatory framework, not independently
regulated districts, strikes the best balance for responsible development.
The saying “death by a thousand cuts” rings true on the effect of
unnecessary regulation on revenue generating industries. Rural states
especially risk a competitive business climates and essential out-ofstate
investment when public opinion alone drives policymaking.
By maintaining the status quo, Montana can continue a
longstanding history of responsible environmental stewardship,
alongside the necessary economic production of
oil and natural gas.