Obama Appointed Judge Says Feds Cannot Regulate Fracking On Public Land

Above Photo: Getty Images

A federal judge appointed by President Obama struck down the administration’s regulation on hydraulic fracturing on federal lands on Tuesday, ruling that the Interior Department does not have congressional authority to regulate fracking.

The decision is a major loss for the administration, which worked for years to update its oil and natural gas drilling regulations to account for dramatic increases and innovations in fracking.

Judge Scott Skavdahl of the District Court of Wyoming agreed with the arguments of industry groups and a handful of Western states that said Congress had expressly forbidden Interior from getting into fracking with a 2005 law, with few exceptions.

“Congress has not delegated to the Department of Interior the authority to regulate hydraulic fracturing,” Skavdahl wrote in his opinion published late Tuesday. “The [Bureau of Land Management’s] effort to do so through the Fracking Rule is in excess of its statutory authority and contrary to law.”

Interior had countered with the argument it has broad authority over oil and natural gas development on federal and American-Indian land — the only places where the rule would be enforced. But Skavdahl, who was nominated in 2011 by Obama, disagreed.

“Congress’ inability or unwillingness to pass a law desired by the executive branch does not default authority to the executive branch to act independently, regardless of whether hydraulic fracturing is good or bad for the environment or the citizens of the United States,” he wrote.

Interior declined to comment directly on the litigation but said it is disappointed that it cannot enforce the fracking rule.

“It’s unfortunate that implementation of the rule continues to be delayed because it prevents regulators from using 21st century standards to ensure that oil and gas operations are conducted safely and responsibly on public and tribal lands,” a spokeswoman said.

The Independent Petroleum Association of America, one of the plaintiffs in the case, celebrated the ruling.

“We are pleased to see Judge Skavdahl agrees with the merits of our case: BLM did not have the authority to issue its rule in the first place,” Neal Kirby, the group’s spokesman, said in a statement. “Today’s decision demonstrates BLM’s efforts are not needed and that states are — and have for over 60 years been — in the best position to safely regulate hydraulic fracturing.”

Interior published the rule last year. Its standards focus on three areas: ensuring wells are properly constructed, storing wastewater in a safe manner and mandating that companies publicly disclose the fracking chemicals they use.

Skavdahl last year put an injunction on the rule, prohibiting Interior from enforcing it. Interior appealed that injunction to the Court of Appeals for the Tenth Circuit, a case that was still pending as of Tuesday, though is likely now moot.

Interior could also appeal the final decision released Tuesday.

Congressional Republicans have slammed the fracking rule, calling it costly, unnecessary and unattainable.

“Hydraulic fracturing is one of the keys that has unlocked our nation’s energy resurgence in oil and natural gas,” Speaker Paul Ryan (R-Wis.) said in a statement.

“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.”

The House has repeatedly moved to overturn the rule legislatively. A funding bill passed last week by the House Appropriations Committee would cut off funding to enforce the fracking regulation.