Former top Interior Department officials from both Democratic and Republican administrations say the agency’s beleaguered hydraulic fracturing rule is on solid legal ground.
In a friend-of-the-court brief filed today, the bipartisan group said a federal district court was mistaken when it ruled in June that fracking is beyond the authority of Interior and its Bureau of Land Management.
The group weighed in on an appeal of the decision "to demonstrate that the district court’s decision seriously misapprehends the Department’s historical mission, its statutory authority, and its important responsibilities for the stewardship of federal lands," it wrote.
It is urging the 10th U.S. Circuit Court of Appeals to reverse the lower court’s decision and restore the fracking rule, which was rolled out in March 2015 and tangled in state- and industry-led litigation until June, when the U.S. District Court for the District of Wyoming threw it out (EnergyWire, June 22).
The group includes Lynn Scarlett, deputy secretary for Interior under George W. Bush; David Hayes, deputy secretary under Presidents Clinton and Obama; James Caswell, BLM director under Bush; and Michael Dombeck, BLM acting director under Clinton and special assistant and science adviser under George H.W. Bush.
The group’s bipartisanship is a testament to Interior’s long-standing practice of regulating all aspects of oil and gas development on public lands, it said.
"We have different views on many aspects of federal land management and natural resources policy; indeed, amici may not all agree on the wisdom of any particular approach to regulation of hydraulic fracturing on federal lands or the optimal role for States and tribes in the regulation of hydraulic fracturing on federal lands," the brief says. "But we are unified in our conviction that the Interior Department has — and must have — the authority to promulgate uniform rules to protect federal lands and natural resources from the risks posed by hydraulic fracturing."
The officials are represented by Sean Donahue and Susannah Weaver, attorneys who frequently represent environmental groups before the Supreme Court.
Hayes, who helped craft the fracking rule and left the Obama administration in 2013, said he and many other former officials have been anxious to get their position on the record.
"All of us who have had the responsibility to manage our public lands responsibly and safely understand the scope of that responsibility," he said in an interview. "And the notion that the federal government does not have the authority to regulate, in an across-the-board fashion, fracking activities on public lands is astonishing."
The officials note that regulation of fracking and other activities on public lands is a fundamental exercise of the Constitution’s property clause, which gives Congress authority over how federal property is managed. Congress used the Mineral Leasing Act, Federal Land Policy and Management Act, and other statutes to put Interior in charge of those lands.
Congress’ decision to remove fracking from U.S. EPA’s oversight under the Safe Drinking Water Act has no bearing on Interior’s long-standing authority over oil and gas activities on public lands, the officials said.
Hayes said he’s confident the 10th Circuit will restore the rule.
"I have great confidence in the courts of appeals in the United States, and my only regret is that it’s taken this long to get to the court of appeals," he said.
A lawyer for industry groups opposing the rule did not immediately respond to a request for comment.