Monday, October 5, 2015

An Unprecedented Fracturing Ruling with Broad Implications for Federal Environmental and Land Use Law: A Guest Post from Hannah Wiseman

The following is a guest post from Hannah Wiseman, Attorneys’ Title Professor, Florida State University College of Law.

On September 30, 2015, the U.S. District Court for the District of Wyoming preliminarily enjoined the Bureau of Land Management from enforcing the BLM’s recently-promulgated rules for hydraulic fracturing (also called “fracking” or “hydrofracking”) on federal lands.  In other words, the court determined that the federal government may not regulate a key facet of oil and gas development that occurs on lands owned and managed by the federal government--at least not for the time being.  The BLM operates under a broad mandate to manage public lands for a “combination of balanced and diverse resource uses” by current and future generations of people.  Congress, in directing the BLM to protect federal lands for the purposes of recreation, resource extraction, and other uses, highlighted the importance of protecting “water resource . . .  values” on public lands.  This court decision prevents the BLM from fulfilling its Congressional mandates, and it does so on the basis of very shaky legal conclusions--including a fundamental misreading of my research. 

The fracturing rules that the BLM finalized in March 2015 are primarily informational.  (The “rules” are a variety of directives aimed at wells drilled and fractured on federal lands, and are contained within one final rule published by the BLM in March.)  They require operators--entities that drill and fracture oil and gas wells--to disclose existing conditions at wells, such as geology, and to describe their waste management and disposal practices.   The rules also require operators to disclose the chemicals that they used in fracturing, the amount of water that they used, and other information.  Operators may avoid publicly disclosing the chemicals used by submitting an affidavit to the BLM claiming trade secret status.  Additionally, before fracturing a well, operators must show that their wells have been adequately lined with steel “casing,” that this casing has been securely cemented into the ground, and that the casing can withstand the pressure of hydraulic fracturing.   Substantively, the rules prevent operators on federal lands from using open pits to store fracturing wastes, with certain exceptions.  This protects migrating birds, humans, and livestock from exposure to wastes in the pits, and it helps prevent both surface and underground soil and water pollution.

In commenting on the rules, many environmental and citizens’ groups argued that the rules were not adequately stringent, while industry and many states opposed the rules as too stringent and expensive or, alternatively, as duplicative of state regulation.  Many of the rules are not duplicative--most western states do not prevent fracturing wastes from being stored in pits, for example.  For the rules that are duplicative, a well operator that complies with the state rule can submit similar data to the BLM to prove that it has also complied with the BLM’s mandate.  Further, the BLM rules do not prevent states from enforcing their own regulations on federal lands within the state.  For example, if Wyoming and Colorado have more stringent rules for fracturing than the BLM does, these states remain free to enforce these rules at all wells on federal lands.   These states need not obtain any waiver or permission from the BLM--they simply may enforce their own rules.

The decision preliminarily enjoining the BLM from enforcing its fracturing rules on federal lands weakens the BLM’s ability to protect resources on behalf of the American public, including resources used for recreation, renewable energy development, grazing, and other non-oil and gas extraction purposes.  It also has broader implications for environmental and land use law.  In enjoining enforcement of the rule, the court--citing to and misconstruing my research, and ignoring my written and oral congressional testimony explaining my research--essentially concluded that Congress has exempted hydraulic fracturing from all federal regulation, and that the BLM therefore may not regulate fracturing on federal lands. In fact, Congress only exempted hydraulic fracturing from the definition of “injection” under the Safe Drinking Water Act (SDWA).  And the language exempting fracturing expressly indicates that it is only “[f]or purposes of this part,” thus making clear that the exemption is narrow.   This SDWA exemption did not stop the EPA from regulating certain aspects for hydraulic fracturing under other federal acts, including the Clean Water Act and Clean Air Act.  Nor should it stop the BLM from regulating fracturing under the Federal Land Policy and Management Act and Mineral Leasing Act.  Further, the BLM rules address many risks that are not directly addressed by the SDWA, such as protecting soils and surface waters from pollution. 

The court’s conclusion that the exemption of an activity from one part of one federal act impliedly exempts that activity from other federal regulation is, in my view, unprecedented, and it could affect numerous other environmental and land management laws.  For example, because the Clean Water Act exempts certain forms of pollution from agriculture and logging, does this prevent the BLM from regulating many impacts of grazing and logging on federal lands?  It would, it seems, following the court’s logic.   Although this is just a preliminary injunction, this ruling is likely to extend further because of the court’s finding that the entities challenging the BLM rules are likely to win on the merits.

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