On June 21, U.S. District Judge Scott Skavdahl ruled that the Bureau of Land Management (BLM) did not have the authority to regulate hydraulic fracturing on federal or Indian lands, striking down several Obama Administration rules.
In 2015, BLM unveiled rules aimed at increasing the safety of hydraulic fracturing on public lands with a number of new regulations. These regulations included:
1. Disclosure of the components of hydraulic fracturing fluid used;
2. Stronger cement walls between the well and any water zones;
3. Stronger storage rules governing wastewater; and,
4. Disclosure of geology, depth, and other information about existing wells to prevent cross contamination between wells.
The regulations were denounced by producers and several states, who sued the federal government over the new regulations. Specifically, Colorado, Wyoming, Utah, and North Dakota along with the Ute Indian tribe filed suit, arguing that the BLM does not have the authority to regulate hydraulic fracturing as Congress never gave BLM such authority.
The history of federal regulation has moved around significantly between agencies based upon court rulings. However, for decades, the Environmental Protection Agency (EPA) did not believe it had the authority to regulate hydraulic fracturing, until a court ruled in the 1990s that EPA was indeed responsible for such regulation. Then, the Energy Policy Act of 2005 was passed, and it included a specific prohibition on EPA regulating fracturing other than fracturing, which uses diesel fuel, thereby leaving a regulatory gap from the federal perspective. BLM stepped into the gap and Judge Skavdahl ruled that, “The issue before this Court is not whether hydraulic fracturing is good or bad for the environment or the citizens of the United States." The question, instead, is "whether Congress has delegated to the Department of Interior legal authority to regulate hydraulic fracturing. It has not."
For now, the Obama Administration has not commented publicly on whether or not it will appeal the ruling, though it seems likely they will, meaning that states are left to regulate hydraulic fracturing on federal and Indian lands.
For questions on this article, please contact Scott Morrison of APGA staff by phone at 202-464-2742 or by email at
smorrison@apga.org.