On June 21, 2016, the US District Court for the District of Wyoming set aside the US Bureau of Land Management’s (BLM) final rule regulating hydraulic fracturing on federal and Native American lands, finding that BLM lacked Congressional authority to promulgate the regulations. “Congress has not delegated to the Department of Interior the authority to regulate hydraulic fracturing,” Judge Skavdahl wrote in the decision. “The BLM’s effort to do so through the fracking rule is in excess of its statutory authority and contrary to law.”
The Court rejected BLM’s assertion that it has “broad authority” to regulate all oil and gas operations on federal and Native American lands pursuant to the Mineral Leasing Act of 1920, the Federal Land Policy and Management Act of 1976, and other public land use and mineral development statutes. The Court then looked to the Energy Policy Act of 2005, which explicitly removed US EPA’s authority to regulate non-diesel hydraulic fracturing under the Safe Drinking Water Act. The Court reasoned that:
Having explicitly removed the only source of specific federal agency authority over fracking, it defies common sense for the BLM to argue that Congress intended to allow it to regulate the same activity under a general statute that says nothing about hydraulic fracturing.
The Court’s decision blocks the enforcement of BLM’s rule and leaves the regulation of hydraulic fracturing to the individual states. However, the Obama administration has already indicated that it is likely to appeal the decision to the Tenth Circuit Court of Appeals: “We’ll continue to make our case in the courts,” White House spokesman Josh Earnest said at a briefing regarding the Court’s decision. “We believe that we have a strong argument to make about the important role that the federal government can play in ensuring that hydraulic fracturing that’s done on public land doesn’t threaten the drinking water of the people who live in the area.”
Additional reporting by this blog regarding BLM’s final rule is available here and here.