Gravel2Gavel Construction & Real Estate Law Blog
On September 30, 2015, the U.S. District Court for Wyoming granted requests for a preliminary nationwide injunction against the implementation of the Department of the Interior’s (DOI) Bureau Of Land Management (BLM) rules that apply to hydraulic fracturing on Federal and Indian lands. The lead case is State of Wyoming v. U.S. Department of the Interior.
The final BLM rules were issued on March 26, 2015 (80 F.R. 16128) and were initially scheduled to take effect on June 24, 2015, but the court postponed their effective date pending a filing of the administrative record with the court. The District Court noted that the focus of the new rules is on three aspects of oil and gas development: (1) wellbore construction, (2) chemical disclosures and (3) water management, and all of these matters are already subject to comprehensive regulation under current federal and state law.
The District Court was persuaded that the BLM was without statutory authority to promulgate these rules. The federal laws cited by the BLM as authority—the Federal Land Policy and Management Act of 1976 (FLPMA), the Mineral Leasing Act of 1930 (MLA), the 1930 Right-of-Way Leasing Act, the Mineral Lasing Act for Acquired Lands, the Federal Oil and Gas Royalty Act, the Indian Mineral Leasing Act of 1938, and the Indian Mineral Development Act of 1982—were reviewed by the District Court, which determined that they did not provide the specific statutory authority claimed by the BLM.
Moreover, the BLM’s authority to establish a program to protect underground sources of drinking water was displaced by the Safe Drinking Water Act of 1974 and the EPA’s comprehensive Underground Injection Control (UIC) Program. Indeed, the Safe Drinking Water Act of 1974 was amended by the Energy Policy Act of 2005 which removed EPA’s regulatory authority over non-diesel hydraulic fracturing. According to the District Court, “it defies common sense to interpret the more general authority granted by the MLA and FLPMA as providing the BLM authority to regulate fracking when Congress has directly spoken to the issue in the EPAct”.
The District Court also stated that, even if the BLM had the authority to issue these fracking rules, the BLM’s rulemaking process was flawed. The BLM, the District Court concluded, was not responsive to many of the technical comments that were filed, and in fact failed to reference “a single confirmed case of the hydraulic fracturing process contaminating groundwater”. In addition, the sensitive issue of the forced disclosure of some trade secret and confidential information was criticized by the court as not being especially well-handled.