Attorneys for the federal government have appealed last week's ruling by a federal judge in Wyoming that the Interior Department's Bureau of Land Management (BLM) does not have the authority to enforce a rule governing hydraulic fracturing (fracking) on public and tribal lands.
Last Tuesday, U.S. District Court Judge Scott Skavdahl ruled that fracking was outside the regulatory jurisdiction of the BLM and disagreed with the agency's assertion that Congress had given it broad powers, citing several federal statutes (see Shale Daily, June 22).
An appeal to the Tenth Circuit Court of Appeals in Denver was filed last Friday by six attorneys for the federal government, including four from the Justice Department's Environment and Natural Resources Division.
Kathleen Sgamma, vice president of government and public affairs for the Western Energy Alliance (WEA), told NGI’s Shale Daily that the organization anticipated the government’s appeal.
“Federal regulation of fracking has been a major goal of this administration, and we didn’t expect them to just accept the district court ruling and go home,” Sgamma said Monday. “However, the ruling is extremely strong, and it will be hard for the circuit court to deny the logic.
“Even if it does, we have another line of defense, which is our arguments challenging procedural failures. The district court judge didn’t even touch our arguments about BLM failing to justify the rule and follow regulatory procedures because he was so convinced by the overriding lack of jurisdiction. Those arguments are strong and remain ripe for judicial review.”
Mark Barron, an attorney with law firm Baker & Hostetler LLP, which represented the WEA and the Independent Petroleum Association of America in the case, echoed that sentiment.
“It has always been our expectation that this case would end up in the Court of Appeals,” Barron said Monday. “We believe that Judge Skavdahl’s ruling is narrowly tailored to reflect the will of Congress and will defend the ruling on appeal.
“The government’s appeal overlooks that a lack of statutory jurisdiction is only one problem with the fracking rule. Regardless the scope of BLM’s authority, the final rule remains substantively meritless and the product of a procedurally defective rulemaking. Even if Judge Skavdahl’s ruling were reversed, and there is no reason to expect it will be, the fracking rule still represents illegal regulatory overreach in violation of the Administrative Procedure Act.”
The BLM unveiled its rule in March 2015 (see Shale Daily, March 20, 2015). It would require oil and gas operators to use the FracFocus registry to disclose the chemicals used in fracking as well as use above-ground tanks to temporarily store produced water, among other things. Four states, two industry groups and an Indian tribe sued to stop the rule's enforcement.
In his ruling, Skavdahl said Congress "has not directed the BLM to enact regulations governing fracking. Indeed, Congress has specifically removed federal authority to regulate the activity, making its intent clear." He warned that a ruling in the BLM's favor would create "no limit to the scope or extent of congressionally delegated authority BLM has, regardless of topic or subject matter."
Last September, Skavdahl issued a preliminary injunction against enforcement of the fracking rule (see Shale Daily, Sept. 30, 2015). That decision favored the states of Colorado, North Dakota, Utah and Wyoming; the Ute Indian Tribe of the Uintah and Ouray Reservation; and the Independent Petroleum Association of America and the Western Energy Alliance. The petitioners had asked Skavdahl to issue a permanent injunction.
Six months later, attorneys for the BLM urged the Tenth Circuit to overturn Skavdahl's injunction against the fracking rule (see Shale Daily, March 22). A coalition of six environmental groups -- the Sierra Club, Earthworks, Western Resource Advocates, Conservation Colorado Education Fund, the Wilderness Society and the Southern Utah Wilderness Alliance -- also urged that the injunction be reversed.
The lead case isState of Wyoming v. U.S. Department of the Interior Secretary et al, No. 2:15-CV-00043-SWS. The appellate court cases areState of Wyoming et al v. DOI et al, No. 15-8126, andState of Wyoming et al v. Jewell et al, No. 15-8134.