Federal district judge in Wyoming sets aside BLM’s final fracing rule

A federal district court judge in Wyoming set aside the US Bureau of Land Management’s final hydraulic fracturing rule after finding the agency did not have the necessary congressional authority to impose it.

“Congress has not delegated to the Department of Interior the authority to regulate hydraulic fracturing. BLM’s effort to do so through the Tracking Rule is in excess of its statutory authority and contrary to law,” Judge Scott W. Skavdahl of US District Court for Wyoming said in his June 21 decision. “Therefore, the court holds the [fracing] rule unlawful, and it is.”

The decision applied to separate lawsuits filed by Wyoming and Colorado, and by the Independent Petroleum Association of America and the Western Energy Alliance. Officials from the two oil and gas trade associations immediately applauded Skavdahl’s ruling.

“The judge determined that the federal government lacks the authority to regulate fracing, period,” said Kathleen Sgamma, WEA vice-president for government and public affairs. “He decided exclusively on statutory authority, so there’s nothing to remand, no do-over.”

She said, “He didn’t even rule on our technical Administrative Procedures Act arguments, which we believe are still strong and represent another line of defense if BLM appeals to the circuit court.”

Rule was found invalid

In Washington, an IPAA spokesman said, “Today’s decision demonstrates BLM’s efforts are not needed and that states are—and have for over 60 years been—in the best position to safely regulate hydraulic fracturing. All of our technical arguments remain valid. Even if such a reversal would occur, the rule is still ruled as invalid under the Administrative Procedures Act.”

It was not immediately clear what BLM might do in response to Skavdahl’s decision. “While we defer more comment due to pending litigation, BLM’s modernized fracing requirements reflect today’s industry practices and are aimed at ensuring adequate well control, preventing groundwater contamination, and increasing transparency about the materials used in the fracturing process,” a DOI spokeswoman in Washington said.

The agency issued the final rule in March of that year (OGJ Online, Mar. 20, 2015), after withdrawing an earlier proposed version when states and oil and gas producers strongly objected.

The judge previously issued preliminary injunctions keeping the agency from enforcing the regulations until legal challenges against it could be resolved (OGJ Online, Oct. 1, 2015), and until BLM could submit a full administrative record in the legal challenges (OGJ Online, June 24, 2015).

“It’s unfortunate that implementation of the rule continues to be delayed because it prevents regulators from using 21st century standards to ensure that oil and gas operations are conducted safely and responsibly on public and tribal lands,” the DOI spokeswoman told OGJ by e-mail.

Contact Nick Snow at nicks@pennwell.com.

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