Hydraulic fracturing is a process by which water, sand, and chemicals are injected into rock formations in order to release oil and natural gas. The stated purpose of the regulations, which were put in place by the DOI’s Bureau of Land Management (BLM), was “to ensure that wells are properly constructed to protect water supplies, to make certain that the fluids that flow back to the surface as a result of hydraulic fracturing operations are managed in an environmentally responsible way, and to provide public disclosure of the chemicals used in hydraulic fracturing fluids.”
But after the states of Wyoming, Colorado, North Dakota, Utah, the Ute Indian Tribe, the Independent Petroleum Association of America, and the Western Energy Alliance challenged the BLM’s authority to make these regulations, U.S. District Judge Scott Skavdahl ruled that BLM’s fracking regulations were indeed unlawful. “The Court finds that Congress has directly spoken to the issue and precluded federal agency authority to regulate hydraulic fracturing not involving the use of diesel fuels,” Skavdahl ruled.
He cited the 2005 Energy Policy Act, which specifically removes regulation of hydraulic fracturing from the Environment Protection Agency’s (EPA) jurisdiction, and argued that the court must presume that this applies to the DOI as well. “Given Congress' enactment of the EP Act of 2005, to nonetheless conclude that Congress implicitly delegated BLM authority to regulate hydraulic fracturing lacks common sense,” Skavdahl wrote.
His decision was not based on the merits of the regulations or fracking itself, the judge emphasized, but rather on the federal agency’s lack of authority to impose them. “The issue before this Court is not whether hydraulic fracturing is good or bad for the environment or the citizens of the United States. Regardless of how serious the problem an administrative agency seeks to address ... it may not exercise its authority 'in a manner that is inconsistent with administrative structure that Congress enacted into law’,” Skavdahl said, citing several precedents in case law. "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 hydraulic fracturing. It has not,” he concluded.
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