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Interior Appeals Decision to Block Fracking Rules on Federal, Tribal Lands

The Obama administration joined a coalition of environmental groups in filing an appeal over a federal judge's ruling in September to block rules governing hydraulic fracturing (fracking) on public and tribal lands from taking effect.

On Thursday, attorneys with the Justice Department's Environment and Natural Resources Division, acting on behalf of the Interior Department (DOI), asked the 10th U.S. Circuit Court of Appeals to reverse U.S. District Court Judge Scott Skavdahl's decision to issue a preliminary injunction (PI) against the rule in September (see Shale DailySept. 30). The rules were developed by DOI's Bureau of Land Management (BLM).

The ruling by Skavdahl, who sits on the bench in Wyoming's federal district court, favored four states, two industry groups and an Indian tribe that had filed two separate lawsuits against the rules in March.

With the appeal, DOI joins a coalition of environmental groups -- specifically, the Sierra Club, Earthworks, the Wilderness Society, Western Resource Advocates, Conservation Colorado Education Fund and the Southern Utah Wilderness Alliance -- also opposed to the delay. The coalition filed a separate appeal to the 10th Circuit Court on Nov. 27.

Last March, Wyoming filed a lawsuit challenging the BLM's authority to regulate fracking. The lawsuit was joined by Colorado and North Dakota in April, followed by Utah in early July (see Shale DailyJune 18April 28April 16March 26). Two industry groups, the Independent Petroleum Association of America (IPAA) and the Western Energy Alliance (WEA), also filed a separate lawsuit in March.

“The funny thing about this is that DOI has sat on this for two months now, and they -- and the environmental intervenors -- really filed this appeal at the last minute,” Kathleen Sgamma, WEA vice president for government and public affairs, told NGI’s Shale Daily on Friday. “There’s now quite a bit of legal wrangling going on. But if the government and the environmental groups had just rolled up their sleeves and gotten to work on this, they would be further along on getting to the merits of this case. They’re actually extending the amount of time that we have our PI.

“You would think that we would be in no rush, but they would be in a rush, to get their rule implemented. But their actions are actually dragging this case out.”

Dan Naatz, IPAA senior vice president for government relations and political affairs, concurred. He said the appeal by DOI “shows that our case was really strong. I don’t want to take any guess on what happened, but I think the government was probably surprised at the depth and breadth of the Skavdahl’s ruling in our favor -- to such a great extent that they had to recalibrate and figure out their strategy.”

Sgamma said she thought the case spoke to a larger issue of the government trying to get too much done before the end of the Obama administration.

“As a result, by trying to do too much, it’s doing nothing well,” she said. “The oil and gas industry has been hit with a barrage of regulations, including this fracking rule, in the last couple of years. It’s intensified in these last few months as they’re rushing in new rule after new rule. They’re simply running out of staff resources to get everything done.”

Naatz added, “We are confident of the fundamental merits of our case and are eager to move expeditiously to that stage of the case. IPAA has long said that the federal government’s efforts are duplicative and not needed, given that states are – and have for over 60 years been – in the best position to safely regulate fracking. BLM’s rule is far-reaching and it has not shown a compelling case that necessitates this rule, nor any specific risk this rule would reduce.”

Court records show the two cases were consolidated to add the Ute Indian Tribe of the Uintah and Ouray Reservation as a plaintiff.

Skavdahl blocked the rules from taking effect in June, but he denied the plaintiffs' request for a PI to block the rule outright, saying he didn't have enough information to rule on their request. In July, he gave the Interior Department more time to enter the administrative record, extending the deadline until Aug. 28 (see Shale Daily, July 17; June 24).

Western state leaders maintain they can adequately regulate fracking, and that regulatory oversight should be spread over both private and adjoining public lands to avoid duplication and confusion.

The case in Wyoming district court is Independent Petroleum Association of America et al v. Jewell et al [No. 2:15-CV-00041-SWS], while the appellate case is State of Wyoming et al v. U.S. Department of Interior et al [No. 15-CV-43-SWS].

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