Federal Agency’s Fracking Rule Overturned

CHEYENNE, Wyo. (CN) - The U.S. Bureau of Land Management lacks the authority to create and implement rules governing the hotly debated process of fracking on federal and Indian lands, a federal judge ruled.

The states of Wyoming, Colorado, North Dakota, and Utah, as well as the Ute Indian Tribe, challenged in a consolidated action the BLM's final agency decision establishing regulations that apply to hydraulic fracturing, widely known as fracking.

Fracking is a process of horizontal drilling that uses explosive charges to fracture rock and then inject water, sand and chemicals to hold open the resulting fissures, allowing gas and oil to escape. The technology allows petroleum companies to access resources, mostly in shale formations, which were previously unreachable.

The practice has been the center of heated controversy nationwide, especially in communities where fracking has allegedly caused extensive contamination of soil, air and water, as well as earthquakes that are said to be caused by disposal wells where drilling fluids, incased in concrete, are stored thousands of feet below ground.

All of that is aside from the issues of state and private-land leasing, which strip residents of subsurface mineral rights and any control over where and when drilling may take place.

But U.S. District Judge Scott Skavdahl issued an order Tuesday on the plaintiffs' petition for review of final agency action, clearly establishing a boundary between philosophical debate and law.

"The issue before this court is not whether hydraulic fracturing is good or bad for the environment or the citizens of the United States," Skavdahl wrote in a 27-page order. "The Constitutional role of this court is to interpret the applicable statutory enactments and determine whether Congress has delegated to the Department of Interior legal authority to regulate hydraulic fracturing. It has not."

Skavdahl said the Energy Policy Act of 2005 removed the Environmental Protection Agency's regulatory authority over non-diesel hydraulic fracturing, thereby precluding federal agency oversight, including that of the BLM.

"Congressional intent as expressed in the 2005 EP Act indicates clearly that hydraulic fracturing is not subject to federal regulations unless it involves the use of diesel fuels," the judge wrote. "Given Congress' enactment of the EP Act of 2005, to nonetheless conclude that Congress implicitly delegated BLM authority to regulate hydraulic fracturing lacks common sense."

Skavdahl added that the United States' three branches of government couldn't usurp another's granted authority.

"Congress' inability or unwillingness to pass a law desired by the executive branch does not default authority to the executive branch to act independently, regardless of whether hydraulic fracturing is good or bad for the environment or the citizens of the United States" he said. "Congress has not delegated to the Department of Interior the authority to regulate hydraulic fracturing. The BLM's effort to do so through the fracking rule is in excess of its statutory authority and contrary to law."

Barry Russell, president and CEO for intervener-respondent Independent Petroleum Association of America, said the court got it right.

"The judge could not have been more clear," he said in a statement. "We're pleased to see the judge set aside the Interior Department's final rule as it does not have congressional authority to police this already strictly regulated practice."

Independent Petroleum, Western Energy Alliance and six environmental groups all acted as intervener-respondents in the case.

Independent Petroleum spokesman Neal Kirby told the Associated Press on Tuesday that the association is pleased the court ruled in favor of retaining states' rights.

"BLM did not have the authority to issue its rule in the first place," he said. "Today's decision demonstrates BLM's efforts are not needed and that states are — and have for over 60 years been — in the best position to safely regulate hydraulic fracturing."

U.S. Rep. Cynthia Lummis of Wyoming said the ruling puts regulatory authority over fracking where it belongs.

"This rule undermined the careful and efficient regulation of fracturing that states have put in place, like the rules written by Wyoming," the Republican lawmaker said in a statement.

A spokesman for the BLM could not be reached on Thursday.

Shelley Brock, a spokeswoman for Citizens Allied for Integrity and Accountability, a grassroots organization challenging the gas and oil industry in Idaho, says the ruling could prove detrimental to communities that have already been adversely affected by conventional drilling and fracking.

"Here in Idaho we know that the state is so compliant with the industry that it is absolutely worrisome," she told Courthouse News. "The state is telling tax payers they are making so much money off of this. That's how they spin it, but we know that to be untrue. And, even it were true, at what cost does it come?"

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