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Appellate Court Sets New Deadline in BLM Fracking Rule Fight

An appellate court panel in Denver said it wants to hear more arguments over an Obama-era rule governing hydraulic fracturing (fracking) on public and tribal lands, and ordered the Trump administration and environmental groups to file responses over the matter by mid-November.

In two separate orders Monday in U.S. Court of Appeals for the Tenth Circuit Court, Judges Mary Beck Briscoe, Harris Hartz and Jerome Holmes ordered the Interior Department's Bureau of Land Management (BLM) and a coalition of six environmental groups to file responses to rehearing requests by four Western states and two energy industry groups by Nov. 20.

Last September, the three judges split over a decision to dismiss litigation over the proposed rule, on the grounds that the Trump administration intends to rescind it. Colorado, North Dakota, Utah and Wyoming, as well as the Independent Petroleum Association of America (IPAA) and Western Energy Alliance (WEA), have since filed requests for a rehearing -- either by the panel or en banc. The Ute Indian Tribe of the Uintah and Ouray Reservation has also requested a rehearing.

For the states and the industry groups, the issue is a matter of timing. They argue that a rehearing would give the appellate court's order that vacated a district court ruling time to coincide with the BLM's ongoing efforts to rescind the rule.

But vacating the rule through a mandate, which the appellate court was scheduled to issue next Monday, would "result in significant regulatory uncertainty that will prejudice BLM and the regulated community, and additional legal proceedings that will unnecessarily burden the resources of the federal courts and the parties.

"By coordinating the effective date of the vacatur to the conclusion of BLM's rulemaking, this court can prevent both of these results," wrote attorneys with Baker & Hostetler LLP, who are representing the IPAA and WEA.

The attorneys added that while it took the BLM five years to promulgate the embattled fracking rule, it was unlikely to take that long to ultimately rescind it.

Six environmental groups -- the Sierra Club, Earthworks, Western Resource Advocates, Conservation Colorado Education Fund, the Wilderness Society and the Southern Utah Wilderness Alliance -- are appellants in two lawsuits over the rule.

The BLM rule would require oil and gas operators to use the FracFocus registry to disclose the chemicals used in fracking and use above-ground tanks to temporarily store produced water, among other things. U.S. District Court Judge Scott Skavdahl ruled in June 2016 that the BLM does not have the authority to regulate fracking. The government subsequently filed an appeal.

Last March, the Tenth Circuit gave the Trump administration one week to decide whether it wanted to continue defending the rule in court. Attorneys for BLM said the Obama-era rule did not reflect the Trump administration's priorities and asked the court to postpone a pair of cases over the rule. The court granted the request, postponing oral arguments until late July.

The cases are State of Wyoming et al v. Zinke et al, No. 16-8068; and State of Wyoming et al v. DOI, No. 16-8069.

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