American Oil and Gas Reporter - October 2015 - 18

IndustryDigest
Wyoming Judge Halts
BLM's Fracturing Rule

The U.S. District Court for the
District of Wyoming on Sept. 30 issued
a preliminary injunction to prevent the
U.S. Bureau of Land Management from
regulating hydraulic fracturing on
federal and Indian lands.
Independent Petroleum Association
of America President Barry Russell
calls the ruling "a big win for our
industry."
"We are pleased to see Judge Scott
W. Skavdahl agrees with our request to
hear the merits of our case before this
federal rule goes into effect," Russell
continues. "Today's decision is
consistent with IPAA's position that
BLM's efforts are not needed, and that
states are-and have been for 60 years-
in the best position to safely regulate
hydraulic fracturing."
Adds Kathleen Sgamma, vice
president of government and public
affairs for the Western Energy Alliance,
which along with IPAA challenged the
BLM fracturing rule under the
Administrative Procedures Act (AOGR,
April 2015, pg. 58), "We are overjoyed
that we finally are getting relief from
the courts regarding the regulatory
overreach of the Obama administration.
"Following on the heels of the U.S.
District Court of North Dakota's rebuke
of the waters of the United States rule
(see "Judge OKs Clean Water Rule
Injunction," AOGR, September 2015,
pg. 157), we hope BLM, the
Environmental Protection Agency, and
other agencies that are rushing to
implement even more regulations on the
businesses that create jobs will pause
and actually follow the law and
regulatory procedure," Sgamma says.
In his ruling, Russell says, Judge
Skavdahl states, "At this point, the court
does not believe Congress has granted
or delegated to the BLM authority to
regulate fracturing. An administrative
agency derives its existence and
authority to regulate from congressional
authorization or delegation. Congress
has not authorized or delegated to the
BLM authority to regulate hydraulic
fracturing, and under our constitutional
structure, it is only through
congressional action that the BLM can
acquire this authority."
"As IPAA and WEA stated in their
March 20 lawsuit, BLM's rule making
18 THE AMERICAN OIL & GAS REPORTER

is 'a reaction to unsubstantiated
concerns,' and we requested the
regulations be set aside because the
administrative record lacks the factual,
scientific, or engineering evidence
necessary to sustain the agency's
action," Russell comments. "This ruling
guarantees that the BLM cannot put the
hydraulic fracturing rule in place until
the entire case is concluded."
Noting that days after WEA and
IPAA filed their lawsuit, the states of
Utah, Colorado, Wyoming and North
Dakota, and the Ute Indian Tribe, also
filed for review, Sgamma observes,
"The judge found the state petitioners'
arguments compelling. BLM could
point to no risk from fracturing that is
not already being managed successfully
by the states, or demonstrate that its rule
will deliver any environmental benefit
not already provided by the states.
"(Judge Skavdahl) agreed with us
that vague notions of public concern are
not a sufficient basis to impose
centralized control," she adds. "He
admonished BLM for acting on
unfounded claims rather than rational
evidence." r

Federal Judge Limits
Extent Of His Injunction
On Waters Of U.S. Rule

WASHINGTON-A federal judge
says his Aug. 27 injunction against the
"waters of the United States" definition
developed by the U.S. Environmental
Protection Agency and Army Corps of
Engineers applies only to the 13 states
that requested the legal action.
The plaintiffs allege the final
WOTUS rule violates the Clean Water
Act, Administrative Procedures Act and
the U.S. Constitution (AOGR,
September 2015, pg. 157).
Ralph Erickson, U.S. District Court
judge for the District of North Dakota,
granted a motion for a preliminary
injunction to stop the two agencies from
implementing their WOTUS rule,
issued June 29. The states that sought
that injunction-North Dakota, Alaska,
Arizona, Arkansas, Colorado, Idaho,
Missouri, Montana, Nebraska, Nevada,
South Dakota, Wyoming and the New
Mexico Environment Department and
state engineer-had requested Erickson
apply his ruling to all states.
Erickson admitted there were

compelling reasons for extending and
limiting the injunction. "There is a
desirability for uniformity regarding a
national rule with national application.
On the other hand, there is the idea of
respecting the decisions of other courts
and sovereign states," he wrote. "The
decision involves balancing the interests
of competing sovereign entities, as well
as undermining the ruling of other
courts. Under these circumstances, the
court declines to extend its decision
beyond the entities that are actually
parties in this litigation."
Erickson said he agreed with the
plaintiffs' arguments about the WOTUS
definition irreparably diminishing state
power over their waters, and how it
could cause significant unrecoverable
economic losses. However, he added,
the "states," as defined by the
injunction, were the 12 states and two
New Mexico offices that filed the
complaint.
Confining the court's order to the
specific harms of the plaintiff states
aligns with principles of injunctive
relief, the judge wrote, adhering to the
concept of being no more burdensome
to the defendant than necessary to
provide complete relief to plaintiffs.
Four courts have denied preliminary
injunctions on WOTUS lawsuits, with
two saying they lacked jurisdiction
while the others deferred decisions until
the Judicial Panel for Multidistrict
Litigation (JPML) decides whether all
cases should be consolidated.
A coalition of business groups,
including the American Petroleum
Institute, American Farm Bureau, and
National Association of Manufacturers,
filed a lawsuit Aug. 19, challenging
federal plans to consolidate the 10
lawsuits. If the JPML does accept
consolidation, the groups ask it to deny
the government's request to transfer all
cases to the U.S. District Court for the
District of Columbia, arguing none of
the original litigants filed in that court
and the government has not provided
any persuasive reason to consolidate the
lawsuits there. r

Challenge By States
To Clean Power Plan
Again Held Premature

WASHINGTON-A group of
attorneys general led by West Virginia
seeking to stop the Obama
American Oil and Gas Reporter - October 2015

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