Wyoming Federal Judge Invalidates Bureau of Land Management Fracturing Regulations
On Tuesday, a Wyoming federal district court set aside a Bureau of Land Management (BLM) rule regulating hydraulic fracturing on federal and tribal lands. The BLM rule imposed strict well casing and wastewater storage requirements on hydraulic fracturing operations. See 80 Fed. Reg. 16,128 (March 26, 2015). The rule additionally required drillers to disclose chemicals used in their fracking operation. The issue presented before the court was “has Congress (the legislative branch) delegated its legal authority to the Department of Interior to regulate hydraulic fracturing.” Judge Scott Skavdahl found that “the Bureau of Land Management lacked Congressional authority to promulgate the regulations.” Wyoming v. Department of the Interior et al., Case No. 2:15-cv-00043 (D. Wyo. June 23, 2016).
The BLM argued it has “broad authority” to impose the hydraulic fracturing regulations under a number of federal statutes including the Federal Land Policy and Management Act (FLPMA), the Mineral Leasing Act (MLA), the Indian Mineral Leasing Act (IMLA), and the Indian Mineral Development Act (IMDA). Further, the BLM asserted that the court should give deference to the federal agency’s statutory construction of the proffered statutes that grant the agency the authority to enforce the fracturing regulations.
However, Judge Skavdahl held that none of the proffered statues delegated authority to the BLM to promulgate regulations over the hydraulic fracturing process. Judge Skavdahl noted that the authority granted to the BLM under the MLA “requiring operators to avoid pollution to groundwater, falls short of regulating the fracking process itself and is not determinative of whether the BLM has statutory authority to engage in comprehensive rulemaking to address the supposed underground environmental effects of hydraulic fracturing.” Additionally, Judge Skavdahl noted that in 2005, Congress passed the Energy Policy Act, which removed hydraulic fracturing from EPA regulation under the Safe Drinking Water Act. The Safe Drinking Water Act regulates underground sources of drinking water.
The BLM argued that no provision in the Energy Policy Act or the Safe Drinking Water Act displaced the BLM’s authority to regulate underground injection. Nevertheless, Judge Skavdahl commented 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 statue that says nothing about hydraulic fracturing.”
For an in-depth analysis of the federal court’s ruling on the BLM rule be sure to read the linked article here. Additionally, excerpts from the district court opinion can be found here.