Professor inadvertently helped sink fracking rule

By Robin Bravender | 06/22/2016 04:10 PM EDT

Many law professors would be thrilled to have their work cited in a major court decision.

Not Hannah Wiseman.

The Florida State University law professor, who specializes in energy and environmental law, was dismayed when her 2008 law review article was cited by opponents of an Obama administration hydraulic fracturing rule in their bid to freeze the rule. And yesterday, she was irked again when she was cited in a strongly worded ruling that struck down the administration’s regulation.

Hannah Wiseman
Hannah Wiseman says her 2008 legal article was misinterpreted to help sink the Obama administration’s fracking rule. | Photo by Christi Morgan, Florida State University College of Law.

The federal judge and those opposing the rule got it wrong, Wiseman said.

"I’m frustrated that the petitioners and the court have continued to use the article for a proposition that it doesn’t stand for," Wiseman said today in an interview. "I am not excited to have my article used in this manner."

She attempted to clarify her argument in a House Natural Resources Committee hearing last year, where she suggested that her comments had been taken out of context. She wrote a blog post today calling the court’s opinion that cited her work "erroneous." And she’s planning to co-author a brief to clarify her article if the court’s ruling is appealed, as expected.

Wiseman wrote the article in 2008 when she was a visiting assistant professor in a two-year fellowship position at the University of Texas School of Law. (She noted today that she "was not even a tenured law professor" at the time, and it was the first article she’d written about hydraulic fracturing.)

Judge Scott Skavdahl, appointed by President Obama to the U.S. District Court for the District of Wyoming, cited her article as he presented an issue central to the case: whether a 2005 energy law removed fracking from federal regulators’ reach. The footnote, citing Wiseman’s article, says the Energy Policy Act "’conclusively withdrew fracing (sic) from the realm of federal regulation,’ leaving any regulatory control to the states."

But Wiseman said she was taken out of context.

The comments in her article were intended to indicate that Congress exempted hydraulic fracturing from the Safe Drinking Water Act, "but not to suggest that many other well development stages associated with fracturing, such as flowback disposal and discharge, are exempt from federal laws," she wrote in her congressional testimony last year. "Notably, my article also does not address the separate authority of the BLM to regulate fracturing on federal lands," she added.

Skavdahl ruled yesterday that the Bureau of Land Management lacked congressional authority to promulgate the regulations (EnergyWire, June 22).

"The court’s erroneous determination that a Congressional exemption of one activity from one federal environmental act exempts that activity from all other federal statutes — including statutes that apply to activity on lands owned and managed for the benefit of the public — could have far-reaching consequences," Wiseman wrote in her blog post today published by the Center for Progressive Reform.

"Unfortunately, the court in both its preliminary injunction and merits opinion largely adopts petitioners’ dishonest interpretation and use of my article," she wrote. "Law review articles can provide useful history and can help illuminate the meaning of statutes and prior court opinions, but courts should not use them in place of direct legal precedent."