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Law Professors, Former Interior Officials Urge Court to Overturn BLM Ruling

Four former high-ranking officials at the Interior Department and nearly 40 law professors are urging an appellate court to overturn a ruling by a federal judge in Wyoming that the Bureau of Land Management (BLM) does not have the authority to enforce a rule governing hydraulic fracturing (fracking) on public and tribal lands.

U.S. District Court Judge Scott Skavdahl ruled in late June 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. Attorneys for the government subsequently filed an appeal to the 10th Circuit Court of Appeals in Denver (see Shale Daily, June 27; June 22).

In an amicus brief filed last week, the four former Interior officials, who served under Democratic and Republican administrations, called Skavdahl's ruling "deeply flawed." The officials are Lynn Scarlett, deputy secretary and COO at Interior 2005-2009; David Hayes, deputy secretary and COO 1999-2001 and 2009-2013; James Caswell, BLM director under President George W. Bush; and Michael Dombeck, acting BLM director 1994-1997.

"We believe that a uniform comprehensive rule is vital," the former Interior officials said. "Under the district court's ruling, protection of the federal lands from fracking would depend entirely on the states. While some states may have adequate regulations to protect the federal lands, others may not regulate fracking at all.

"In our practical experience, such gaps in regulation are problematic and likely to hinder Interior in its fundamental role as guardian of the federal lands. Uniformity creates certainty for regulated parties. And a uniform rule gives effect to Interior's multiple-use mandate by regulating fracking to protect the environment, so that oil and gas mining and environmental quality may coexist on federal lands."

In a separate amicus brief also filed last week, 38 law professors disagreed with Skavdahl's citation of the Safe Drinking Water Act (SDWA) to assert that the BLM doesn't have the authority to regulate fracking.

"The lower court’s decision has no basis in legal precedent or relevant statutes and violates basic canons of statutory interpretation," the professors said. "It reads a sweeping government-wide exclusion into a surgical amendment explicitly tied to one statute [the SDWA]. As a result of this decision, the BLM cannot fulfill its statutory mandate to serve as the chief steward of our public lands. For these reasons, the district court's decision should be reversed."

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.

Last September, Skavdahl issued a preliminary injunction against enforcement of the fracking rule (see Shale Daily, Sept. 30, 2015). Attorneys for the BLM urged the 10th Circuit to overturn the injunction six months later (see Shale Daily, March 22).

The case is State of Wyoming et al v. Jewell et al [No. 16-8068].

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