Attorneys for the Department of Interior’s (DOI) Bureau of Land Management (BLM) have asked an appellate court to vacate oral arguments and abate a case over a rule governing hydraulic fracturing (fracking) on public and tribal lands because the agency intends to rescind the rule.
But environmental groups, which support the rule, filed a separate motion urging the Tenth Circuit Court of Appeals in Denver to deny BLM’s request, arguing that the issue of whether the agency has the authority to regulate fracking on public lands has far-reaching consequences and should be decided by the court now.
Oral arguments in the case are currently scheduled for next Wednesday, March 22.
In a motion filed Wednesday, BLM said an initial review of the rule, which was first unveiled by the Obama administration in March 2015, “does not reflect [the] policies and priorities” of the Trump administration. “Accordingly, the DOI through the BLM has begun the process to prepare a notice of proposed rulemaking for publication in the Federal Registerto rescind the 2015 rule.”
BLM said it expects to issue the notice within 90 days. “To conserve the court’s and the parties’ resources, and in light of the proposed rulemaking process…BLM respectfully requests that the court continue the oral argument and hold these appeals in abeyance pending the outcome of the proposed rulemaking process,” the agency said.
In a separate motion, also filed Wednesday, attorneys for the Sierra Club and other environmental groups said a reversal by BLM “does not eliminate the need for appellate review.
“The abeyance requested by BLM would unfairly prejudice [the appellants] by indefinitely shielding from appellate review the district court’s far-reaching ruling stripping the agency of its well-established authority. An indefinite abeyance also would allow BLM to effectively rescind the rule without the notice-and-comment rulemaking and reasoned decision-making required under the Administrative Procedure Act.
“In addition, the requested abeyance will harm the public interest by allowing thousands of new oil and gas wells to be drilled indefinitely under outdated 30-year-old standards that fail to adequately protect public health and the environment.”
Last week, the appellate court gave the Trump administrationone week to decide whether it wanted to continue defending the rule in court.
In January, the court granted a request made in December by appellees in the case for more time to make their arguments. But in an unusual twist, the court also delayed the proceedings until March 22. The appellees include Colorado, North Dakota, Utah and Wyoming; the Ute Indian Tribe of the Uintah and Ouray Reservation; and the Independent Petroleum Association of America (IPAA) and the Western Energy Alliance (WEA).
The 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. But U.S. District Court Judge Scott Skavdahl ruled in June 2016 that BLM does not have the authority to regulate fracking. The government filed an appeal.
Officially, the legal dispute involves two companion cases: 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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