On May 5 2017 the US Bureau of Land Management (BLM) asked the 10th Circuit to pause its review of an Obama-era rule on fracking. The rule, if implemented, would restrict fracking practices on federal and tribal lands.

The move comes at a time when the BLM and other agencies are reconsidering their positions in light of the new administration.

In June 2016 a federal district court judge overturned the rule, stating that the BLM had exceeded its authority in issuing the rule, as Congress never directed the agency to regulate fracking. The BLM appealed, but is now under new leadership and is questioning its stance on the rule.

In its latest brief, the agency defended its ability to promulgate rules such as that at issue, stating that "the district court made a serious and consequential error about federal authority and the interpretation of statutes". However, the BLM also asked the 10th Circuit to allow it time to reconsider its stance on the rule: "The most efficient means of resolving this case—for all involved parties and for the court—is to wait until BLM has finished the process of reconsidering the Hydraulic Fracturing Rule."

The rule, which was issued in March 2015 and blocked later that year, imposes on industry rigorous well casing and wastewater storage requirements. It also requires industry to disclose chemicals used in fracking operations.

The agency noted in its brief that if the court grants the BLM's abeyance request, federal and tribal lessees will continue to operate under pre-rule regulations, as they have since the rule was blocked.

Opponents of the rule and environmental groups have until June 5 to file their responses.

For further information on this topic please contact Barclay Richard Nicholson or Robby Marcum at Norton Rose Fulbright LLP by telephone (+1 713 651 5151) or email ([email protected] or [email protected]). The Norton Rose Fulbright website can be accessed at www.nortonrosefulbright.com.