BLM says fracking rule freeze ‘ignores a century of precedent’

By Ellen M. Gilmer | 06/21/2016 08:00 AM EDT

The Obama administration’s new rules for hydraulic fracturing on public and tribal lands are not only legal — they’re overdue, government lawyers told a federal court yesterday.

The Obama administration’s new rules for hydraulic fracturing on public and tribal lands are not only legal — they’re overdue, government lawyers told a federal court yesterday.

In a brief to the 10th U.S. Circuit Court of Appeals, lawyers for the Bureau of Land Management pushed to reverse a lower court’s decision to freeze the fracking rule while it’s being debated in that court.

Critics say the rule exceeds BLM’s authority and encroaches on states’ regulatory turf. Four states, two industry groups and one American Indian tribe are challenging the rule in court.


BLM lawyers and their environmental allies swatted back at the allegations yesterday, arguing that state and federal rules for oil and gas development can and should coexist.

"Federal regulations governing mineral development on public lands have co-existed with state oil and gas regulations for decades," environmental groups represented by Earthjustice told the court. "The Rule is simply a long-overdue update of BLM’s rules to address the recent hydraulic fracturing boom."

The fracking rule sets new requirements for well construction, wastewater management and chemical disclosure for fracking on public and tribal lands, and requires operators to get BLM approval before fracking. It has been stalled in litigation since its release more than a year ago.

The challengers say the process creates a costly red-tape headache for industry, with little to no payoff in environmental protection. And according to tribes, their land shouldn’t be lumped in with public lands in the first place.

The U.S. District Court for the District of Wyoming last year dealt a major blow to rule backers when it issued a preliminary injunction and questioned whether BLM had authority over fracking at all. The high-stakes debate over that authority is center stage in the 10th Circuit appeal.

BLM defended the authority in yesterday’s brief — a final reply to challengers’ arguments in the appeal — saying the plain language and history of federal law grant the agency power over mineral development and environmental protection on federal lands.

"The preliminary injunction rests on the district court’s flawed conclusion that BLM — the agency Congress assigned to oversee all operations on federal and Indian oil and gas leases — somehow lacks authority to regulate subsurface operations like hydraulic fracturing," government lawyers wrote. "That conclusion ignores a century of precedent and decades-old federal regulations."

Challengers have already urged the 10th Circuit to leave the injunction in place, blocking the rule from taking effect until the Wyoming district court decides whether it’s legal.

In briefs last month, they argued that the Mineral Leasing Act and the Federal Land Policy and Management Act — on which BLM is resting much of its argument — were designed to encourage orderly development of oil and gas, not to promote an extensive federal regulatory state (EnergyWire, May 26).

The states in the lawsuit — Wyoming, Colorado, North Dakota and Utah — have also argued that fracking is out of BLM’s hands. They say Congress used the Safe Drinking Water Act to delegate authority over fracking to U.S. EPA and subsequently used the Energy Policy Act of 2005 to revoke that power and leave it in the hands of the states.

BLM lawyers called that logic "astounding" in yesterday’s brief, arguing that the legislative history "clearly states Congress’s intent to preserve BLM’s independent authority to protect groundwater under the MLA and other statutes."

The decision to let the rule take effect is now in the hands of the 10th Circuit. The underlying argument over the rule’s legality is under review at the district court in Wyoming.