Hydraulic Fracturing (Fracking) on Federal and Indian Lands

The Environmental Policy Initiative is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following

Why it Matters

The Bureau of Land Management (BLM) manages 258 million acres of public lands, and nearly 700 million acres of sub-surface minerals such as oil and gas. These minerals are found beneath land managed by agencies such as the Fish & Wildlife Service, as well as private landowners. The rules for federal land and minerals development were written long before high volume hydraulic fracturing and other modern technologies were used to produce oil and gas. This rule modernizes BLM’s program to ensure protection of drinking water with a particular focus on requiring disclosure of the chemicals used in fracking.

The BLM is proposing to void the rule. The comment period closed on September 25, 2017. 

Current Status

On December 29, 2017 BLM formally rescinded the rule. There will likely be legal challenges to BLM’s rescission.

History

On March 20, 2016, six days before the final rule was published, industry groups sued BLM to stop the rule. – Independent Petroleum Ass’n of America v. Jewell, 2:15-cv-00041 (D. Wy.)

On March 26, 2015 BLM published a rule to regulate fracking on public lands and into public mineral rights. The rule was scheduled to take effect June 24, 2015.

On May 29, 2015, Wyoming sued BLM and asked the court to halt the rule until the case is decided. —Wyoming v. U.S. Dep’t of the Interior, No. 2:15-cv-00043

On September 30, 2015 the District of Wyoming granted a preliminary injunction (halting the rule’s implementation while the lawsuit is being decided).

On June 21, 2016 the District of Wyoming struck down the rule. The court read the Safe Drinking Water Act’s exclusion of hydraulic fracturing from that law’s underground injection program to mean that no federal agency can regulate hydraulic fracturing.

On June 24, 2016 BLM appealed the decision to the Tenth Circuit court of appeals.

On July 13, 2016 the Tenth Circuit lifted the lower court’s stay (putting the rule back into effect).

On January 4, 2017 the Tenth Circuit delayed oral argument, scheduled for January 17, 2017 – three days before Inauguration Day.

Trump Era

On March 9, 2017 the Tenth Circuit asked BLM if it wanted to proceed with oral argument, rescheduled for March 22, 2017.

On March 15, 2017 BLM filed a motion to further delay oral argument and put the case on hold pending agency review of the rule. The motion noted that the rule “does not reflect” the policies of the Trump Administration.

On March 17, 2017 the Tenth Circuit asked the parties to file briefs on whether to put the case on hold or make a ruling. Parties who argued that the Tenth Circuit should rule pointed out that the lower court’s ruling – that the federal government may not regulate hydraulic fracturing even on federal land – could not stand because of its lack of support in the law and its implications for future public lands regulation.

On July 25, 2017 BLM proposed voiding the hydraulic fracturing rule and opened a public comment period through September 25, 2017.

On July 27, 2017 the Tenth Circuit held oral arguments on the rule.

On September 21, 2017, the Tenth Circuit dismissed the lawsuit as moot (because BLM was proposing to void the rule), but not before vacating the trial court decision. Parties therefore will not be able to rely on the Wyoming court opinion in future lawsuits about federal authority to regulate hydraulic fracturing. This left the fracking rule standing, and without further action it would take effect when the court issues a mandate on the decision, which was due by mid-November, 2017.

On October 2, 2017 the Ute Indian Tribe asked the Tenth Circuit to review the decision because they did not address tribal sovereignty claims.

On November 6, 2017 Wyoming, Utah, Colorado, and North Dakota asked the Tenth Circuit to review the decision since they feel it unfairly granted a victory to environmentalists by reviving the rule without reviewing its legality.

Also on November 6, 2017 the Tenth Circuit gave environmental groups and Interior until November 20, 2017 to file a reply on the requests to review the decision.

On November 20, 2017 environmental groups and Interior filed requests asking the court not to reconsider the September 21, 2017 ruling.

On December 27, 2017 the Tenth Circuit rejected the states’ request to review the decision

On December 29, 2017 BLM formally rescinded the rule. There will likely be legal challenges to BLM’s rescission.

For More Information

For more information about this rule see the Save EPA website.

 

 

HLS Student Orgs

ELP on Twitter

Search ELP