Interior.gov
The Bureau of Land Management’s hydraulic fracturing rule, the subject of legal wrangling by environmental and industry groups and currently under review by Trump administration officials for complete rescission, will continue to be on hold for a few more weeks.
A September decision by the appeals court threw out a lower court’s determination that the BLM lacks authority to regulate fracking, moving up the possible implementation of the rule this month. But industry trade associations and four Western states asked the court to postpone vacating the lower court ruling to allow the administration to complete its rule rescission.
The 10th Circuit Court of Appeals is entertaining responses to rehearing requests from the government and environmental groups by November 20, according to E&E News.
Industry groups asked the court to consider a pause and not move forward with vacating the Wyoming district court’s decision on federal regulation of fracking until the rulemaking review process at BLM had been completed.
“Industry Petitioners assert only that vacatur of the district court’s decision should not become effective until the Bureau of Land Management (“BLM”) concludes its rulemaking to rescind BLM’s 2015 hydraulic fracturing rule (the “2015 Rule”),” wrote lawyers for the Independent Petroleum Association of America and Western Energy Alliance.
“Coordinating vacatur with the ongoing administrative process is necessary not only to avoid prejudice to BLM and the regulated community but also to promote judicial economy and protect valuable judicial resources,” they continued.
Vacating the decision and allowing the rule to go into effect would trigger compliance issues for oil and gas producers and “compromise” the rulemaking process, the groups argued.
“But if vacatur of the district court’s decision becomes effective before BLM completes its rescission rulemaking, BLM’s ability to complete the on-going rulemaking will be compromised,” attorneys for the industry trade associations wrote. “Once the district court’s decision is vacated, BLM will be compelled to institute temporary procedures to implement and enforce a rule of dubious legal validity, diverting resources from the on-going rulemaking to rescind the 2015 Rule. And if BLM does not enforce the 2015 Rule for whatever reason, BLM may be subject to legal challenges seeking to compel enforcement.”
Complying with the rule, even briefly, would be “inequitable,” exposing oil and gas producers to legal liability, and counterproductive given the explicit intent by BLM to rescind the rule, lawyers told the court.
“When that ruling is vacated, oil and gas operators will have to comply with the 2015 Rule – at least temporarily – or risk legal liability from regulators and third parties for failing to do so. Oil and gas operators will be forced to expend resources – in the form of money, equipment, and manpower – to comply with a rule that BLM has stated unequivocally will be rescinded and that the operators have already defeated in court. Such a result is inequitable,” they wrote.
The court’s September ruling said that addressing the underlying legal questions while the BLM was moving to rescind the fracking rule would be “a very wasterful use of limited judicial resources.”
“Our proceeding to address whether the District Court erred in invalidating the BLM’s fracking regulation when the BLM has now commenced rescinding that same regulation appears to be a very wasteful use of limited judicial resources,” the court wrote in September.
Four Western states—Utah, Wyoming, Colorado, and North Dakota—have also asked the 10th Circuit to revisit its September ruling on the hydraulic fracturing regulation to stall its implementation while the Trump administration works to rescind it.
The September ruling did not adjudicate the merits of whether the federal government has the legal authority to regulate hydraulic fracturing, but in throwing out the Wyoming district court decision that ruled the federal government lacked authority to regulate, the rule itself would have been allowed to take effect this month. But the mandate to reinstate the rule will be delayed by the rehearing requests.
“That is not only contrary to long-established vacatur precedent, but also severely inequitable given the District Court’s un-reviewed finding the HF Rule irreparably harms the States, and warrants prompt rehearing,” lawyers for the Western states wrote to the court last week.
Industry groups told E&E News that should the rule be reinstated before the BLM rulemaking rescission is finished, they will ask for a preliminary injunction in the U.S. District Court for the District of Wyoming.
Western Wire is a project of Western Energy Alliance.
