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BLM Urges Federal Appeals Court to Overturn Frack Rule Injunction

The Interior Department's Bureau of Land Management (BLM) urged a federal appellate court to overturn a Wyoming court's injunction against enforcement of a rule governing hydraulic fracturing (fracking) on public and tribal lands, saying the lower court judge "erred" and had a "crabbed view" of federal regulatory authority.

In an opening brief filed Monday in the 10th U.S. Circuit Court of Appeals in Denver, attorneys for the BLM argued that the agency has the authority to regulate fracking because both it and its predecessors have regulated similar well stimulation techniques since 1936 -- and fracking itself since 1982 -- and that Congress never excluded the practice from its regulatory authority.

"The district court held that Congress has 'directly spoken to the issue and precluded federal agency authority to regulate [fracking] not involving the use of diesel fuels,'" the BLM attorneys said. "That was legal error. Congress has never directly spoken to BLM's authority to regulate [fracking] on federal and Indian lands. Congress instead delegated BLM broad authority to regulate all oil and gas operations on federal and Indian lands. Congress has not carved [fracking] out of that express delegation of authority...

"The social value of [fracking] is not at issue in this case. What is at stake is the federal government’s authority to set the terms and conditions for a particular use of natural resources owned or held in trust by the United States. The district court's crabbed view of that authority contradicts nearly a century of law and practice concerning oil and gas operations on federal and Indian lands."

A coalition of six environmental groups also wants the injunction reversed. In a separate filing on Monday, attorneys for the groups -- the Sierra Club, Earthworks, Western Resource Advocates, Conservation Colorado Education Fund, the Wilderness Society and the Southern Utah Wilderness Alliance -- said the district court erred in finding that the petitioners were likely to prevail, and that both states and the oil and gas industry would be irreparably harmed by the rule.

"The district court essentially side-stepped the requirement of irreparable harm to the states," the environmental groups said. "Any state government challenging a regulation can speculate about potential losses of tax revenue. If that were sufficient, the irreparable harm requirement would be meaningless in any state challenge to a federal regulation."

Last September in Wyoming, U.S. District Court Judge Scott Skavdahl ruled in favor of four states, two industry groups and an Indian tribe that had filed two separate lawsuits in March 2015 over the rules, and issued a preliminary injunction against their enforcement (see Shale DailySept. 30, 2015). Three months later, he denied a motion by the aforementioned environmental groups to expedite proceedings in Wyoming, which would have paved the way to a faster appeal in Denver (see Shale DailyDec. 18, 2015). The BLM filed its appeal in Denver on Dec. 15, 2015.

Meanwhile, in Wyoming on March 4, attorneys representing three groups of petitioners -- the Independent Petroleum Association of America (IPAA) and the Western Energy Alliance (WEA); the States of Colorado, North Dakota, Utah and Wyoming; and the Ute Indian Tribe of the Uintah and Ouray Reservation -- issued separate briefs asking Skavdahl to issue a permanent injunction.

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.

According to court records in Wyoming, a magistrate judge on March 15 granted a motion by the federal respondents to file a consolidated brief to the IPAA, WEA and the four aforementioned states. The respondents will file a separate brief to the Ute Indian Tribe.

The appellate court cases are State of Wyoming et al v. DOI et al [No. 15-8126] and State of Wyoming et al v. Jewell et al [No. 15-8134], while the Wyoming cases are Independent Petroleum Association of America et al v. Jewell et al [No. 2:15-CV-00041-SWS] and State of Wyoming v. U.S. Department of the Interior Secretary et al [No. 2:15-CV-00043-SWS].

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