A federal judge ruled Tuesday against the Obama administration’s proposed regulations on fracking, on the grounds that the Department of Interior does not have the authority to regulate fracking on federal lands.
The decision comes over a year after President Barack Obama’s administration finalized regulations for fracking on public lands. Judge Scott Skavdahl of the District Court of Wyoming sided with the oil and gas industry and a handful of western states, who argued that the Interior cannot regulate fracking according to a 2005 law. The judge’s decision means the Interior can no longer enforce the rule, but the agency could still appeal the decision.
In his opinion, Judge Skavdahl wrote that the “Constitutional role of this Court is to interpret the applicable statutory enactments and determine whether Congress has delegated to the Department of Interior legal authority to regulate [fracking].”
Three simple words can sum up his 27-page paper: “It has not.”
The law Skavdahl cites is the 2005 Energy Policy Act. The federal fracking regulations were shot down largely because of an amendment to the Safe Drinking Water Act (SWDA) within the 2005 law. Originally, the EPA had regulatory authority over fracking under the SDWA because of how “underground injection,” which is part of the fracking process, was defined. The amendment redefined the SDWA’s definition of “underground injection” to exclude fracking, which took away regulatory power from the EPA.
“There can be no question that Congress intended to remove hydraulic fracturing operations … from EPA regulation,” Skavdahl wrote.
This removal of regulatory authority from the EPA applies to the Interior too, according to Skavdahl’s ruling. In legal terms, the Wyoming court has decided that the executive branch cannot enforce these regulations without changing the law — which would require Congress’ action.
Last year, the judge issued an injunction on the Interior’s regulation. He determined that the Interior could not follow through with its proposed regulations until lawsuits involving it were settled. His opinion reflected what he wrote this week — that Congress had not granted the Interior or its Bureau of Land Management (BLM) authority over this matter.
Not everyone agrees with the judge’s decision, however.
“When oil and gas companies are drilling on taxpayer-owned public lands, there is zero question that the Bureau of Land Management has the authority and responsibility to make sure that wells are being drilled as safely and responsibly as possible and that surrounding resources and communities are protected from pollution,” Matt Lee-Ashley, senior fellow and director of the Public Lands Project at the Center for American Progress told ThinkProgress.
“The Wyoming court’s intervention creates a freight-train sized gap in safety standards that raises the danger of well failures and risky drilling practices,” he said.
The bureau currently manages around 700 million acres of mineral estate. Further, it owns over 90,000 well bores on those federal lands, nearly a third located in Wyoming alone. It can fine wells that are drilling without a permit and supervises activities on 3,700 American Indian oil and gas leases. Its Oil and Gas Management leasing program accounts for 63,000 federal onshore oil and gas wells, which is 11 percent of the country’s natural gas supply and five percent of its oil.
The bureau oversees all of this, but according to the judge’s ruling, it cannot issue a federal fracking regulation on those lands.
The regulations were a step forward in the effort to protect communities who live near oil and gas wells from chemicals that are released from the fracking process. A recent study found chemicals emitted from the gas wells in the bodies of the residents living nearby, who have been suffering from negative health impacts as more wells are built in their area.
Skavdahl did not include the environmental and health impacts of fracking in his statement specifically, but implied that the decision could not be based on those impacts.
Everything You Need To Know About Why The DC Circuit Delayed Arguments On Obama’s Climate PlanClimate by CREDIT: AP Photo/ Evan Vucci The Clean Power Plan will get its day in court, but in September, not June …thinkprogress.org“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 regulations would have allowed government workers to inspect the concrete barriers that line fracking wells, required companies to disclose the chemicals used in the process, and provided standards on disposing of fracking wastewater.
Environmental groups have criticized the regulations as not being strong enough, but still, many prefer them over no regulations at all.
“It has been clear all along that the Bureau of Land Management has the authority to safeguard our health and our environment from the dangers of fracking,” Lena Moffitt, Sierra Club’s Director of Beyond Dirty Fuels, said in a statement.
“While there is no way to ever make fracking safe, the oil and gas industry has repeatedly proven that it needs more standards to keep the public safe from the dangers of fossil fuels, not less,” she said.
The Center for Biological Diversity also disagrees with the Wyoming decision.
“The [bureau] clearly has the authority not only to set this weak rule on fracking but to take much stronger actions needed to truly protect our public lands,” said Kassie Siegel, attorney for the center, in response to the decision. “The best way to safeguard America from fracking pollution is to ban this toxic technique and leave dirty fossil fuels in the ground.”
Sydney Pereira is an intern with ThinkProgress.