Federal judge issues preliminary injunction of BLM’s fracing……10/05/2015

Federal judge issues preliminary injunction of BLM’s fracing rule

By Nick Snow
OGJ Washington Editor

A federal court judge in Wyoming issued a preliminary injunction that will keep the US Bureau of Land Management from enforcing its hydraulic fracturing rule until legal challenges against it are resolved.

“Congress has not authorized or delegated to BLM authority to regulate [fracing] and, under our constitutional structure, it is only through congressional action that BLM can acquire this authority,” Judge Scott W. Skavdahl of US District Court for Wyoming said in his Sept. 30 order.

He found not only that the Independent Petroleum Association of America and Western Energy Alliance are likely to prevail in their challenge to the rule as arbitrary and capricious, but also that the states of Colorado, North Dakota, Utah, and Wyoming, and the Ute Indian Tribe showed that BLM had exceeded its authority.

The rule originally was scheduled to become effective on June 24. After a June 23 hearing on the motions, Skavdahl temporarily blocked its implementation until the administrative record was filed (OGJ Online, June 24, 2015). His latest order will prevent the rule from going into effect while litigation is pending. The preliminary injunction applies nationwide.

Officials from both groups of plaintiffs applauded Skaydahl’s action. “We are pleased to see Judge Skavdahl agrees with our request to first hear the merits of our case before this final federal rule goes into effect,” IPAA Pres. Barry Russell said on Sept. 30. “Today’s decision is consistent with IPAA’s position that BLM’s efforts are not needed and that states are—and have for 60 years been—in the best position to safely regulate hydraulic fracturing.”

Hopes agencies will pause

Kathleen Sgamma, vice-president of government and public affairs at Western Energy Alliance in Denver, said, “We are overjoyed that we are finally getting relief from the courts regarding the regulatory overreach of the Obama Administration.”

She said, “Following on the heels of the US District Court for North Dakota’s rebuke of the Waters of the US rule (OGJ Online, Aug. 28, 2015), we hope BLM, EPA, and other agencies that are rushing to implement even more regulation on the very businesses that create jobs will pause and actually follow the law and regulatory procedure.”

North Dakota Atty. Gen. Wayne Stenehjem (R) called BLM’s rule “another example of federal regulatory overreach” where federal regulators attempted to exercise authority they do not have. “It is significant that the court noted the states are likely to succeed on the merits when the lawsuit is concluded,” he noted.

Sgamma said Skavdahl also agreed with IPAA and WEA that vague notions of public concern are not a sufficient basis to impose centralized federal control.

“BLM provided no evidence that its rule is necessary or that state regulation is not already protecting the environment,” she said. “That is a significant finding for the oil and gas industry, since for several years, the environmental lobby has fomented fear in the public about an engineering process that has been safely regulated by states for decades.”

IPAA’s Russell said, “The industry’s arguments have provided a compelling argument to stop the agency from moving forward. This ruling guarantees that BLM cannot put the hydraulic fracturing rule in place until the entire case is concluded.”

Contact Nick Snow at nicks@pennwell.com.

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