WASHINGTON, June 22, 2016 – A federal judge in Wyoming ruled Tuesday that the U.S. Bureau of Land Management doesn't have the authority to establish rules over fracking on federal and Indian lands, dealing another blow to President Obama’s effort to tighten environmental regulations.
U.S. District Judge Scott Skavdahl, who was appointed by Obama in 2011, said Congress had not granted the BLM that power, and had instead chosen to specifically exclude fracking from federal oversight.
"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. Instead, he continued, the question is "whether Congress has delegated to the Department of Interior legal authority to regulate hydraulic fracturing. It has not."
The Interior Department, which oversees BLM, called the ruling "unfortunate." In an e-mailed statement, it said the ruling “prevents regulators from using 21st century standards to ensure that oil and gas operations are conducted safely and responsibly on public and tribal lands."
At issue were BLM rules requiring drillers to disclose the chemicals they use in the fracking process along with regulations dealing with storage of recovered wastewater and barriers between wells and water zones. Four states – Wyoming, Utah, Colorado and North Dakota, as well as the Ute Indian Tribe – argued that BLM did not have the authority to set the regulations. BLM and a number of green groups said the rules are necessary to protect the environment. The rules have been stayed since last summer.
Before 2005, Skavdahl noted, the authority to regulate fracking would have fallen on EPA, which is authorized to protect underground water sources. Then, during the George W. Bush administration, Congress passed the Energy Policy Act of 2005, which, the judge said, "expressly and unambiguously" excludes fracking from the oil and gas production processes that the agency can regulate.
The judge found that BLM, in trying to take over EPA’s role, had attempted “an end-run” around the 2005 law. “Regulation of an activity must be by Congressional authority, not administrative fiat," he concluded. "The Court finds the intent of Congress is clear, so that is the end of the matter."
Congressional Republicans welcomed the ruling. Here’s a statement released by House Speaker Paul Ryan, R-Wis.:
“Hydraulic fracking is one of the keys that have unlocked our nation’s resurgence in oil and natural gas, making the United States the largest energy producer in the world, creating tens of thousands of good-paying jobs, and lowering energy prices for consumers. Yet the Obama administration has sought to regulate it out of existence. This is not only harmful for the economy and consumers, it’s unlawful — as the court has just ruled. I’ll say it again: Only Congress can write laws. Agencies acting without authority from Congress is simply illegal. I applaud this court ruling, which upholds the Constitution and protects the energy revolution from the heavy hand of big government.”
This is not the first time the Obama administration’s environmental efforts have been blocked by a court. Earlier this year, the Supreme Court stopped EPA from enforcing the White House Clean Power Plan, designed to cut power-plant emissions by a third by 2030. The court said legal challenges to the rules had to be resolved first.