The District Court for the District of Wyoming ruled this week that the Department of Interior and Bureau of Land Management(BLM) do not have authority to regulate fracking, even on federal lands. As we previously reported, in the Spring of 2015, four states, an Indian tribe, and two industry groups filed suit to block the the BLM’s rules to regulate fracking on federally owned lands. The judge had already determined that the plaintiffs were likely to succeed on the merits of their case, granting a preliminary injunction last September that prevented the implementation of the rules pending the outcome of this lawsuit.
In the lawsuit, the states argued that Congress did not empower the BLM to regulate water resources or underground injection. They asserted that Congress gave exclusive authority to regulate underground injections to the EPA and the states by creating the Underground Injection Control Program (UICP). The states then noted that in the Energy Policy Act of 2005, Congress expressly exempted fracking from the UICP. Therefore, they argued that the exemption from the UICP was an expression of Congressional intent to prohibit all federal regulation of fracking-related underground injection.
Taking a different approach, the plaintiff industry groups argued that the rule-making process was legally deficient, and that the final rules lack factual or scientific support. Additionally, the groups claimed that the rules are ultimately unnecessary because they duplicate state standards. Meanwhile, the Ute Indian Tribe maintained that the BLM’s rule is not consistent with the federal government’s trust obligation to the tribe.
The BLM argued that as many as seven different statutes granted it “broad authority” to regulate fracking, including the Federal Land Policy and Management Act of 1976, the 1930 Right-of-Way Leasing Act, and the Indian Mineral Development Act of 1982. In an extensive analysis of the legislative history of these laws, the court determined that Congress had not expressed intent to confer to the BLM the power to regulate the process of fracking. And because Congress expressly addressed the regulation of fracking in the Energy Policy Act of 2005, the court determined that the BLM’s argument that Congress implicitly gave the agency authority over fracking “lacks common sense.” The court also noted that prior to issuing the regulations, the agency itself had long maintained that it did not have the authority to regulate fracking. Having found that the agency lacked Congressional authority to regulate fracking, the court did not address the plaintiff industry groups’ arguments about the agency’s rule-making process, or the Indian tribe’s claims about the agency’s obligation to confer with the tribe.
The agency is likely to appeal the judge’s ruling. We will continue to monitor this case.