The Trump administration and a coalition of environmental groups have found themselves on the same side, albeit for different reasons, in a pair of appellate court cases over an Obama-era rule governing hydraulic fracturing (fracking) on public and tribal lands.
In separate filings Monday, attorneys for the environmental coalition and the Interior Department’s Bureau of Land Management (BLM) urged the U.S. Court of Appeals for the Tenth Circuit Court to reject calls from four western states, two energy industry groups and an Indian tribe for a rehearing over the rule.
Specifically, BLM and environmentalists asked the court to leave intact a ruling by a three-judge panel on Sept. 21 to dismiss litigation against the proposed rule. They also want vacated a ruling last year, which said the BLM does not have the authority to regulate fracking.
That’s where the similarities in the filings end. The Trump administration wants the September ruling kept intact because it ultimately plans to rescind the rule, perhaps as early as January. Meanwhile, the six environmental groups — Sierra Club, Earthworks, Western Resource Advocates, Conservation Colorado Education Fund, the Wilderness Society and Southern Utah Wilderness Alliance — want the court to issue a mandate to officially vacate the district court ruling, which would have the effect of reviving the Obama-era rule, if only temporarily.
“The panel’s Sept. 21 ruling applied well-established law that vacatur of the lower court ruling is appropriate when an appeal is determined to be unripe or moot,” the environmental groups’ filing said, adding that the BLM had not requested a rehearing. “The petitions for rehearing instead represent a thinly veiled attempt to delay issuance of the mandate by relitigating an issue this court already considered and correctly decided.”
Attorneys with the Department of Justice said BLM “expects to publish a new rule as soon as possible after the Office of Management and Budget completed its review of the proposed rule. The court may therefore deny the petitions and stay the mandate until Jan. 6, 2018, giving BLM an opportunity to complete the pending rulemaking that was the basis for the panel’s holding.”
Colorado, North Dakota, Utah and Wyoming, as well as the Independent Petroleum Association of America, Western Energy Alliance and the Ute Indian Tribe of the Uintah and Ouray Reservation, have filed requests for a rehearing — either by the panel or en banc. Earlier this month, the courtagreed to hear additional arguments about the request. They argue that a rehearing would give the panel’s decision to vacate the lower court ruling time to coincide with BLM’s moves to rescind 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.
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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