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Wyoming v. United States Department of Interior

ELR Citation: 46 ELR 20114
Nos. 2:I5-CV-043, -041, (D. Wyo., 06/21/2016) (Skavdahl, J.)

A district court struck down BLM's rule regulating hydraulic fracturing on federal and Native American lands. Although FLPMA authorizes BLM to take any action necessary to prevent unnecessary or undue degradation of the lands by regulation or otherwise, the government failed to demonstrate that BLM is authorized to engage in the kind of comprehensive rulemaking at issue here. Through its passage of the Safe Drinking Water Act, Congress delegated regulatory authority for environmental protection of underground water sources to EPA, not the BLM. Likewise, in enacting the Energy Policy Act of 2005 (EPAct), Congress included an amendment to the SDWA, expressly and unambiguously revising the definition of "underground injection" to exclude "the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities." The EPAct explicitly removes hydraulic fracturing operations (not involving diesel fuels) from EPA regulation under the SDWA's underground injection control program. It is therefore likely that Congress intended to remove fracking from the realm of federal regulation. BLM argued that because no provision in the SDWA or EPAct expressly prohibits regulation of underground injection under any other federal statute, those Acts do not displace its authority to regulate the activity under FLPMA and the MLA. Yet, Congress has not directed BLM to enact regulations governing hydraulic fracturing. And according to the court, with Congress having explicitly removed the only source of specific federal agency authority over fracking, "it defies common sense" for BLM to argue that Congress intended to allow it to regulate the same activity under a general statute that says nothing about hydraulic fracturing. In summary, Congress has not delegated to DOI the authority to regulate hydraulic fracturing, and BLM's effort to do so through the fracking rule is in excess of its statutory authority and contrary to law.