Jump to Navigation
Jump to Content

Legal Envtl. Assistance Found. v. EPA

ELR Citation: 27 ELR 21385
Nos. 95-6501, 118 F.3d 1467/(11th Cir., 08/07/1997)

The court holds that hydraulic fracturing activities performed in Alabama fall within the definition of underground injection and, therefore, the U.S. Environmental Protection Agency (EPA) must regulate them under the underground injection control (UIC) programs pursuant to the Safe Drinking Water Act (SDWA). Hydraulic fracturing is a method of recovering natural gas that involves injecting fluids into a coal bed. The court first holds that EPA's order denying an environmental group's petition for withdrawing approval of the Alabama UIC program is a final agency action, providing the court with jurisdiction to review EPA's order. In addition, the group's contention that the regulations at issue in this case, as interpreted by EPA, are invalid because they are inconsistent with the SDWA constitutes a substantive challenge to these regulations; thus, the challenge is not time barred as an untimely procedural challenge.

The court rejects EPA's argument that the UIC program regulatory definition of underground injection encompasses only those wells whose principal function is the underground emplacement of fluids. The SDWA requires that state programs approved under the UIC regulation "shall prohibit . . . any underground injection. . . ." Furthermore, the plain meaning of the statutory definition of underground injection comports with this determination. The process of hydraulic fracturing falls within the definition, as it involves the subsurface emplacement of fluids by forcing them into cracks in the ground through a well.

The court also determines that EPA's reliance on the SDWA's legislative history is misplaced. First, as the statutory command is straightforward, there is no reason to resort to the legislative history. Moreover, far from evidencing a legislative intent contrary to the plain meaning of the statute, the legislative history supports it. Finally, the court rejects the argument that because it is long-standing and has been consistent over a long time period EPA's interpretation of the statutory language as excluding hydraulic fracturing from the reach of the regulations is entitled to special deference. Agency interpretations that are at odds with the plain language of a statute are not entitled to deference, and there was no showing that Congress ratified EPA's interpretation when the SDWA was amended.

Counsel for Petitioner
David A. Ludder
Legal Environmental Assistance Foundation
1115 N. Gadsen St., Tallahassee FL 32303
(904) 681-2591

Counsel for Respondent
Patricia McCubbin
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before BIRCH and CARNES, Circuit Judges, and MICHAEL*, Senior District Judge.