Feds defend fracking rule against judicial hold

Feds defend fracking rule against judicial hold
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The Obama administration is fighting in federal court to defend its hydraulic fracturing (fracking) rule, saying a lower court committed a “legal error” when it put the regulation on hold.

Lawyers representing the Interior Department’s Bureau of Land Management (BLM) are asking the Court of Appeals for the 10th Circuit in Denver to overturn a Wyoming-based court’s decision last year to halt the rule and allow regulators to enforce it.

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That judicial injunction stemmed from the arguments from various states and the oil and natural gas industry that Congress has expressly prohibited the federal government from regulating fracking, even on federal and American Indian land, as the BLM did early last year.

“The district court held that Congress has ‘directly spoken to the issue and precluded federal agency authority to regulate hydraulic fracturing not involving the use of diesel fuels.’ That was legal error,” lawyers wrote late Monday in their opening brief in their appeal of the injunction.

“Congress has never directly spoken to BLM’s authority to regulate hydraulic fracturing on federal and Indian lands,” they said. “Congress instead delegated BLM broad authority to regulate all oil and gas operations on federal and Indian lands. Congress has not carved hydraulic fracturing out of that express delegation of authority.”

The administration rolled out the regulation last year in an attempt to update decades-old standards for oil and gas drilling on federal land, and account for the fracking boom of recent years.

The new standards focus on three areas: improving well design standards, ensuring wastewater is properly protected and requiring drillers to disclose fracking chemicals.

“Because Congress has never excluded hydraulic fracturing from BLM’s expressly delegated authority, the district court erred,” the federal lawyers said. “Furthermore, substantial scientific and technical evidence in the record supports BLM’s expert conclusion that today’s greatly expanded hydraulic-fracturing operations pose a risk to groundwater, especially if well casings are inadequately designed or constructed.”

Environmental groups also filed a brief in the court case late Monday, making similar arguments.

“This holding ignored decades of law recognizing that the agency has a broad mandate to manage mineral development on public lands,” wrote the coalition, which included groups like the Sierra Club, the Wilderness Society and Earthworks. “Congress did not carve out one particular technology — hydraulic fracturing — from federal oversight.”

While attorneys fight at the Circuit Court level over the injunction, they’re also fighting in the lower court about the merits of the case and the rule.