Judge Grants Injunction Blocking Fracking In Favor Of Energy Groups, States, Tribe
A federal judge on Wednesday agreed with two energy organizations, four states including Wyoming and an Indian tribe that the U.S. Bureau of Land Management overstepped its authority to implement new fracking rules on federal land.
"An administrative agency derives its existence and authority to regulate from Congressional authorization or delegation," U.S. District Court Judge Scott Skavdahl wrote in his 54-page order.
"Congress has not authorized or delegated to the BLM authority to regulate hydraulic fracturing and, under our constitutional structure, it is only through Congress action that the BLM can acquire this authority," Skavdahl wrote.
The order follows several months of motions and research after an eight-hour hearing in federal court in Casper on June 23 with the industry and governments asking for a delay in implementing new fracking rules that were scheduled to go into effect on June 24.
In his summary of the issues, Skavdahl wrote the Department of Interior's BLM had worked for a year collecting comments and research in developing regulations they regarded as necessary to oversee hydraulic fracking used in drilling for oil and gas on federal lands. On March 26, they issued their final version of the the regulations dealing with wellbore construction, chemical disclosures and water management, which were already subject to federal regulations.
But the Independent Petroleum Association of America and the Western Energy Alliance, along with Wyoming, Colorado, Utah and North Dakota petitioned the court to impose a preliminary injunction to block the rules. The Wyoming County Commissioners Association and the Ute Indian Tribe also joined these petitioners.
They said the BLM was overstepping its regulatory authority by wanting to duplicate the states’ own work in regulating fracking, which in turn would lead to more bureaucracy and could cut mineral tax revenues.
A preliminary injunction would be necessary to keep the status quo of not implementing the regulations until a trial could happen, they said.
A half-dozen hours before the new BLM rules were to go into effect, Skavdahl issued a delay.
But the preliminary injunction itself didn't happen until today.
The law requires petitioners for preliminary injunctions to meet four standards: Petitioners must prove their case likely would win if it went to trial; that they likely will suffer irreparable harm if the court doesn’t act in their favor; that they will be harmed more than the other side without the injunction; and that a preliminary injunction is in the public interest.
Skavdahl wrote the petitioners succeeded on all four.
- Their case probably would win at trial because the BLM probably would not be able to prove that Congress gave it the authority to regulate fracking. The BLM also fell short of showing environemental harm from fracking, the judge wrote. "The BLM fails to reference a single confirmed case of the hydraulic fracturing process contaminating groundwater."
- The petitioners showed they likely would suffer irreparable harm because the regulations would infringe on the states' and the tribe' sovereignty and their own regulations of fracking, Skavdahl wrote. They also would suffer economic losses from "substantially decreased royalty and tax revenue," as well as additional compliance costs. The energy companies might suffer losses in the disclosure of proprietary information about their fracking processes.
- The petitioners showed they would suffer more injury than the BLM because the Bureau could not show any environmental harm would come from a delay in implementing its rules.
- And a preliminary injunction is in the public interest because of the questions about the BLM's authority, and it would avoid regulatory uncertainty.
"The Court is not persuaded that delayed administrative agency efforts, without more, constitute harm -- even so, such harm does not outweigh the likely harm to Petitioners in the absence of an injunction," Skavdahl wrote.