Feds, law professors say judge wrong to block fracking rules

By Ben Neary, Associated Press

A federal judge in Wyoming was wrong to block rules for hydraulic fracturing on federal land, a group of law professors and lawyers for the federal government said in new court documents.

 

CHEYENNE, Wyo. (AP) — A federal judge in Wyoming was wrong to block rules for hydraulic fracturing on federal land, a group of law professors and lawyers for the federal government said in new court documents.

U.S. District Judge Scott Skavdahl of Casper ruled in June that the U.S. Bureau of Land Management lacks the authority to regulate fracking — a technique of injecting materials underground to increase energy production.

The agency released rules last year that could require energy companies to disclose the materials they inject to free up the surrounding oil and gas. The BLM said it was acting in response to public concern that fracking could cause contamination of groundwater.

The Obama administration filed a brief last week with the 10th U.S. Circuit Court of Appeals in Denver arguing the BLM has the power to regulate fracking. John Powell, spokesman for the U.S. Attorney's Office in Wyoming, declined to comment on the case Thursday.

In the ruling, Skavdahl pointed to an article by Florida State University law professor Hannah Wiseman, saying it supported his conclusion that Congress removed fracking from federal regulation in 2005.

Wiseman and 35 other law professors from around the country filed a brief with the appeals court Wednesday saying they disagree with the judge's ruling and claiming it "fundamentally misinterprets the article."

Wiseman said it should be a slam-dunk for the BLM to get the ruling overturned.

"The agency clearly has the authority — indeed, a duty — to regulate hydraulic fracturing under several of its enabling statutes," she said in a statement.

Skavdahl's decision came in response to legal challenges to the federal rules from Wyoming, Colorado, North Dakota, Utah and the Ute Indian Tribe of the Uintah and Ouray Reservation in Utah. A number of environmental groups also joined the case to argue in favor of the rules.

Wyoming Attorney General Peter Michael said Thursday that he has not yet reviewed the new filings. The state and others must file their responses in mid-September.

"Obviously, we're always confident when we've won below," Michael said of the lower-court ruling.

John Robitaille, vice president of the Petroleum Association of Wyoming, said oil and gas producers are already regulated by the state and that the BLM rules amounted to unnecessary and duplicative oversight.

Some 90 percent of new oil and gas wells use hydraulic fracturing techniques to improve production, said Robitaille, whose group supported the state's legal challenge.

"The use of hydraulic fracturing ... has really opened up a lot of opportunity for our business," he said Thursday. "And it's something that we expect to continue well into the future."

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