US District Court Strikes Down Fracking Regulations on Federal Lands

Jeannette Richard | June 30, 2016 | 10:04am EDT
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A fracking rig in Bradford County, Pennsylvania. (AP photo)

 

(CNSNews.com) -- The Department of the Interior (DOI) has no authority from Congress to regulate hydraulic fracturing (“fracking”) on federal and Indian reserve common-use lands, a U.S. District Court in Wyoming ruled last week.

Hydraulic fracturing is a process by which water, sand, and chemicals are injected into rock formations in order to release oil and natural gas.

The stated purpose of the regulations, which were put in place by the DOI’s Bureau of Land Management (BLM), was “to ensure that wells are properly constructed to protect water supplies, to make certain that the fluids that flow back to the surface as a result of hydraulic fracturing operations are managed in an environmentally responsible way, and to provide public disclosure of the chemicals used in hydraulic fracturing fluids.”

But after the states of Wyoming, Colorado, North Dakota, Utah, the Ute Indian Tribe, the Independent Petroleum Association of America, and the Western Energy Alliance challenged the BLM’s authority to make these regulations, U.S. District Judge Scott Skavdahl ruled that BLM’s fracking regulations were indeed unlawful.

“The Court finds that Congress has directly spoken to the issue and precluded federal agency authority to regulate hydraulic fracturing not involving the use of diesel fuels,” Skavdahl ruled.

He cited the 2005 Energy Policy Act, which specifically removes regulation of hydraulic fracturing from the Environment Protection Agency’s (EPA) jurisdiction, and argued that the court must presume that this applies to the DOI as well.

“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 wrote.

His decision was not based on the merits of the regulations or fracking itself, the judge emphasized, but rather on the federal agency’s lack of authority to impose them.

“The issue before this Court is not whether hydraulic fracturing is good or bad for the environment or the citizens of the United States. Regardless of how serious the problem an administrative agency seeks to address ... it may not exercise its authority 'in a manner that is inconsistent with administrative structure that Congress enacted into law’,” Skavdahl  said, citing several precedents in case law.

"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,” he concluded.

Dan Kish, the senior vice-president for policy at the Institute for Energy Research, a non-profit organization that researches the global energy market, noted that the BLM’s regulations were also unnecessary and burdensome because the states already regulate fracking.

“In terms of its impact, first and foremost, anytime you have regulations piled on top of regulations, it makes things harder for people to operate. It’d be like if you go to get a driver’s licence, if you have to go to two different places and take two different tests, rather than simply go to one. That’s not a good use of your time, and probably costs you more, and that’s part of the reason people were upset about this,” Kish told CNSNews.com.

“The other thing about it it that when the federal government makes regulations, it doesn’t matter where, which place - you could be talking about Nevada and California - they have the same exact rules and regulations that they would in Michigan or Pennsylvania, or some place else. And so the idea is that states know better, their local commissions. And additionally, the federal government is much, much slower, takes much, much longer in processing permits than states do…,” he continued.

“There’s really no reason for the federal government to get involved in this if the states are already regulating it, and it’s a waste of money, it’s a waste of time.”

Kish went on to say that the Obama administration created the fracking regulations in order to hamper the energy production industry.

“Under the Obama administration, the Department of the Interior is doing whatever the folks who don’t want the production of oil and gas and coal in the United States had asked them to do…,” he said.

“[These people] have asked their friends in the administration who are very close to them to do whatever [is] possible to make it harder for people to produce energy in the United States, and that’s what this is all about.”

However, Kish added that the court decision will not have “a huge impact” on the fracking industry in general, since it only deals with fracking on federal and Indian lands, which has only a small percentage of fracking activity, thanks to the Obama administration’s policies.

“Most of the energy produced in the United States is already produced on private and state lands because of things like this,” Kish told CNSNews.

“The federal government - especially under the Obama administration - the federal government has made it harder and harder and harder to produce energy of any kind,” he said, noting that “under the Obama administration, the amount of oil and gas produced on federal lands has dropped significantly as a percentage of the overall oil and gas produced in the United States.”

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