POLITICS
06/22/2016 03:00 pm ET

Federal Judge Blocks Major Fracking Rule, Calling It 'Contrary To Law'

A rule advanced by the Obama administration was intended to regulate fracking on public and tribal lands.
A protest against fracking and neighborhood oil drilling in Los Angeles on May 14, 2016.
Lucy Nicholson/Reuters
A protest against fracking and neighborhood oil drilling in Los Angeles on May 14, 2016.

A federal judge in Wyoming has permanently blocked a rule that sought to regulate hydraulic fracturing, commonly known as fracking, on millions of acres of public and tribal lands.

A coalition of states and oil and gas producers challenged the U.S. Bureau of Land Management's fracking rule in court, contending it had no basis in existing law. 

U.S. District Judge Scott Skavdahl on Tuesday agreed, ruling that the federal agency's claim that it had "implicit" congressional authority for the regulations "lacks common sense."

"Congress has not delegated to the Department of Interior the authority to regulate hydraulic fracturing," Skavdahl wrote in a 27-page order. "The BLM's effort to do so through the Fracking Rule is in excess of its statutory authority and contrary to law."

That language seemed to be a direct rebuke to the Obama administration, which touted the fracking rule last year as "commonsense" while noting that states and localities should fill in the gaps it left open. The government received more than 1 million public comments during the rule-making process.

The rule sets standards on well construction and wastewater storage, among other requirements. But Skavdahl said the government's policy intentions were irrelevant to the question of what power it had to promulgate them in the first place.

"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.

The judge had already put the rule on hold twice last year while the litigation proceeded, giving other states, industry and environmental groups a chance to pick sides in the dispute and offer their arguments as the case moved forward. 

The U.S. Court of Appeals for the 10th Circuit is presently considering an appeal of one of these earlier orders, and a second appeal of Tuesday's ruling is also likely.

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. U.S. District Judge Scott Skavdahl

House Speaker Paul Ryan (R-Wis.), who has opposed the Obama administration in court on immigration and funding for the Affordable Care Act, among other issues, lauded Skavdahl for defending "the energy revolution from the heavy hand of big government."

"Only Congress can write laws. Agencies acting without authority from Congress is simply illegal," Ryan said in a statement, while noting that fracking helped to keep energy prices low and create jobs.

Citing the appeals process, the Department of the Interior declined to comment on the ruling but obliquely lamented the decision.

"While we defer more comment due to pending litigation, the BLMs modernized fracking requirements reflect today's industry practices and are aimed at ensuring adequate well control, preventing groundwater contamination, and increasing transparency about the materials used in the fracturing process," said a department spokesperson.

"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," the official added.

The White House did not respond to a request for comment, but Sally Jewell, the interior secretary, wrote in a White House blog last year that the fracking rules only marked the beginning of a process that, in the end, rested with the states and the business sector.

"The majority of oil and gas development remains on state and private lands," Jewell wrote. "So, the responsibility for developing this energy safely must now be taken up in state capitals, engineering labs, and boardrooms all across the country."

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