Court tosses BLM frack ruling and appeal

A federal appellate court on Thursday dismissed an appeal of a ruling finding the Bureau of Land Management’s regulation regulating hydraulic fracturing to be illegal, while also vacating the ruling itself.

The 10th Circuit Court of Appeals based its decision not on the merits of the case, but on the fact that the BLM is moving to revoke the regulation. But the action means that the fracking rule takes effect for the time being, said Michael Freeman, an attorney with Earthjustice who is a litigator in the case.

The appeals court determined the the BLM’s move under the Trump administration to revoke the rule make the appeal moot.

“It is clearly evident that the disputed matter that forms the basis for our jurisdiction has … become a moving target,” the court ruled, finding that to proceed with considering the appeal would be a waste of judicial resources.

It said its decision to also dismiss the Wyoming district court decision was guided in part by its general practice of vacating district court judgments when an appeal becomes moot, to prevent them “from spawning any legal consequences.”

The lower court had ruled in 2016 that the BLM lacked the authority to regulate hydraulic fracturing. The new BLM rule requires disclosure of chemicals used in fracking, and also has new well construction and testing requirements, and requires the use of tanks rather than pits when storing fluids flowing back from wells.

Freeman said the rule was scheduled to take effect in 2015, but it was put on hold by a preliminary injunction issued by the Wyoming judge.

But the appeals court’s action means the injunction is no longer in place and the rule takes effect, he said.

“In terms of how long that will be in effect, that’s uncertain,” he said.

But he said it could be some time, given how long rulemaking processes take, including ones to revoke existing rules.

While the BLM could seek to refrain from enforcing the rule while it works on revoking it, Freeman said the federal government has run into legal trouble trying to do the same thing in other situations. Recently, a court ruled against the government’s attempt to postpone the effective date of a new Office of Natural Resources Revenue rule governing royalty valuations for coal, oil and gas as it moved to rescind it.

If BLM officials don’t want to apply the fracking rule they need “to go through their formal rulemaking. They can’t just turn around and say ‘we’re not going to follow our own rule,’” Freeman said.

Kathleen Sgamma is president of the Western Energy Alliance, which has been legally challenging the fracking rule along with the Independent Petroleum Association of America.

“We’re pleased that … IPAA and Western Energy Alliance are even closer to finally putting BLM’s ill-conceived fracking rule to bed,” she said in a news release. “As with the royalty valuation rule that was recently completely rescinded, there are some technicalities to work through in the short term, but just as the court recognizes that it is not worthwhile to expend judicial resources on a rule that is being overturned, it is clear that implementing the rule in the short term is likewise a waste of industry and government resources.” 



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