BLM Hydraulic Fracturing Rule
The Obama administration’s Bureau of Land Management (BLM) released on March 20, 2015 its final rule regulating hydraulic fracturing activities on federal and Indian lands. As written, this precedent-setting regulation would be difficult and costly for small- and medium-sized businesses to comply with and would likely discourage U.S. investment and job creation in the West. IPAA and Western Energy Alliance immediately challenged the BLM hydraulic fracturing rule in the U.S. District Court of Wyoming, characterizing the federal government’s rulemaking as unsubstantiated and duplicative of states’ efforts to regulate hydraulic fracturing operations. Soon after, the states of Colorado, Wyoming, North Dakota, and Utah, and the Ute Indian Tribe joined the legal challenge. States have successfully regulated more than 1.2 million hydraulic fracturing operations for 70 years and many states have recently strengthened their regulations as production has increased and technology has improved. The 2015 nationwide fracking rule is unnecessary and would add another layer of burden for America’s independent oil and natural gas producers already struggling to navigate the complex and confusing regulatory program governing federal lands.
On September 30, 2015, a judge for the U.S. District Court of Wyoming granted IPAA and Western Energy Alliance’s motion for a preliminary injunction of the rule, stating, “Congress has not authorized or delegated to the BLM authority to regulate hydraulic fracturing and, under our constitutional structure, it is only through Congressional action that the BLM can acquire this authority.” On June 21, 2016, shortly after the preliminary injunction appeal case was fully briefed, the District Court judge struck down the BLM final rule. The judge agreed with industry that BLM does not have the congressional authority to regulate hydraulic fracturing on federal lands.
As expected, the Obama administration and environmental parties on June 30, 2016 filed an appeal to the District Court’s ruling with the U.S. Tenth Circuit Court of Appeals. In September 2017, the Tenth Circuit Court dismissed the case, protecting producers from the business uncertainty of having to potentially comply with a regulation that is certain to be rewritten by the Trump administration. On December 29, 2017, the BLM published a repeal of the 2015 BLM hydraulic fracturing rule that took immediate effect and ended the Tenth Circuit Court appellate case. On January 28, 2018, the state of California as well as the Sierra Club sued the BLM over the final repeal rule in the U.S. District Court for the Northern District of California. IPAA and Western Energy Alliance have filed for intervention on behalf of the federal government as well as filed a motion for venue transfer back to Wyoming.