Federal Judge Gives Fracking A Break Ffrom BLM Regulations

by Marjorie Haun: The oil and gas industry which has advanced the American energy revolution of hydraulic fracturing started off the month of October with an unexpected victory over a long-time, regulatory antagonist.

On Sept. 30, the U.S. Bureau of Land Management’s “fracking” rules released in March were suspended indefinitely by U.S. District Judge Scott Skavdahl. Skavdahl, of the Wyoming District Court, responded to lawsuits brought by the states of Colorado, Utah, Wyoming and North Dakota, along with the Independent Petroleum Association of America and the Western Energy Alliance, by granting the plaintiffs an injunction against the BLM’s rules for fracking on public and tribal lands. The Ute Indian Tribe, which owns a 4.5 million-acre, energy-rich reservation in northern Utah, also joined the effort to block the federal agency’s prohibitive regulations.

According to legal analysis, the lawsuits argued Congress gave authority to regulate the underground injection of fluids, required in the fracking process, or water resources, not to the BLM, but to the Environmental Protection Agency. Skavdahl explained, “regulation of an activity must be by Congressional authority, not administrative fiat.”

The lawsuits also argued that the BLM’s “rule-making process was legally deficient, and that the final rules lack factual or scientific support.”

The key components of the BLM rule addressed the usual concerns of fracking, such as groundwater contamination– of which there are still no cases of—chemical disclose and storage for recovered fluids from fracking.

Over the years, BLM’s track record has been filled with many wins pushing restrictive regulations, which may explain the over-step into another agency’s territory. The agency’s footprint on fracking can be seen in each of the states and the Indian nation that decided to fight back.

North Dakota was one of the first states to bring a lawsuit against the BLM, which, like other western states where fracking occurs, has a strong regulatory framework to guide the industry. According to The Bakken Magazine, “North Dakota Attorney General Wayne Stenehjem said the state was asking the court to invalidate the BLM’s regulations because they interfere with its comprehensive oil and gas development rules and environmental protection standards.” Stenehjem also said the EPA has already been empowered to monitor the safety of underground water resources.

Companies seeking to do exploration and extraction of oil and or natural gas in Colorado, for example, have been impeded by onerous BLM Environmental Impact Statements (EIS), and restrictions on road building and other activities necessary to access drilling sites. The BLM has often sided with environmentalist groups in denying fracking leases or withdrawing pending leases. In 2012, the BLM stirred up controversy when, under pressure from environmentalist groups in western Colorado, it withdrew 20,000 acres of qualifying parcels from available fracking leases.

The BLM in the state of Utah also faces pressure from environmentalist groups, which threaten to sue when a proposal for fracking or shale extraction on public land is introduced. In January 2014, the Deseret News reported that the BLM drew backlash from oil and gas producers when it decided to withdraw 57 parcels from potential fracking leases due to a “last minute request from one special-interest group.”

According to the report, the area BLM director, Juan Palma, met secretly with the Utah Rock Art Research Association, which did not make their concerns public during the obligatory comment period, violating BLM’s own rules. Despite the fact that oil companies conducted $500,000 worth of prior environmental impact research on the disputed parcels, Utah environmentalist groups cheered the BLM’s actions.

The Ute Indian Tribe, whose large reservation is in northeastern Utah, squared off against the BLM following years of regulations which Ute leaders say are “contrary to tribal interests.” In a Deseret News article of June 25, 2015, the Ute Tribe Business Committee Chairman, Shaun Chapoose cited the lack of need for the BLM’s proposed restrictions:

“With over 50 years of hydraulic fracturing operations on the Uintah-Ouray Reservation, there has not been a single documented instance of groundwater contamination. This corresponds with findings in the recent EPA study assessing the potential impacts of hydraulic fracturing on drinking water resources.”

In 2013, Wyoming Gov. Matt Mead sparred with Interior Secretary Sally Jewell, who over sees the BLM, over BLM regulations that were not only expensive, but had no discernible benefit. According to an article in Forbes, Wyoming, at the time BLM proposed its new fracking regulations, already had in place some of the strictest rules in the country governing oil and gas extraction.

Until an administrative record is filed while litigation is pending, Skavdahl’s decision will block the the BLM rule from being implemented anywhere in the nation.
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Marjorie Haun (@Reagan_Girl) is a former public school teacher with a passion for exposing hypocrisy among public officials and political front groups, while bringing the truth about current issues to light. She is the author of a series of children's books, "The Heroes of the Vietnam War: Books for Children," and has written numerous articles, editorials, book reviews and white papers for a number of organizations and news outlets. Article shared on WatchDog.com

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