BLM Has No Authority To Regulate Fracking, At Least For Now

Yesterday, Judge Scott Skavdahl of the District of Wyoming held that the Bureau of Land Management did not have authority to regulate the environmental impacts of fracking.  frackingI think Judge Skavdahl probably got it right, but I also think it’s a much closer question than the Judge acknowledged and I could imagine either the 10th Circuit or the Supreme Court reaching a different conclusion.

Judge Skavdahl first reviewed the various statutes cited by BLM as providing authority for the rule.  He concluded that none of them specifically authorize fracking regulation by BLM and, moreover, than none seem to provide BLM with any kind of environmental regulatory authority.  However, as the Judge recognized, through the Federal Land policy and Management Act of 1976:

Congress authorized the BLM, “by regulation or otherwise,” to “take any action necessary to prevent unnecessary or undue degradation of the lands” and to promulgate regulations necessary to achieve FLPMA’s goals.

Absent anything else, that seems to me unambiguously to provide BLM with sufficient authority to regulate fracking.  One might even say that the very purpose of statutes such as the FLPMA is to provide such general authority – precisely because Congress is aware that it cannot anticipate every specific evil that might make itself known in the future.

Here’s where it gets more tricky.  The Safe Drinking Water Act authorizes EPA to regulate “underground injection.”  Until 1997, EPA took the position that its authority over UI did not give it power to regulate fracking.  In 1997, in Legal Envtl. Assistance Foundation v. EPA, the 11th Circuit Court of Appeals rejected EPA’s position, concluding that the SDWA unambiguously did give EPA such authority.

Congress responded to the LEAF case in the Energy Policy Act of 2005, explicitly excluding fracking from the definition of UI (unless the fracking involves diesel fuel).  To Judge Skavdahl, the Energy Policy Act was determinative.  How could Congress forbid EPA from regulating fracking, but still allow BLM to do so?  Judge Skavdahl was particularly persuaded by the fact that EPA had specific authority over fracking, whereas BLM does not, and EPA is the environmental regulatory agency, whereas BLM is a land management agency.

These arguments have some force, and they may be right, but they are not as compelling to me as they were to the Judge.  I would pose the question a different way.  Congress obviously knew how to limit EPA’s authority.  It could have done the same for BLM as it did for EPA.

Isn’t it equally possible that Congress precluded EPA from regulating fracking, precisely because it preferred to leave authority over fracking on federal lands with BLM?  Perhaps it wanted BLM, rather than EPA, in charge of fracking, because BLM has a statutory obligation to balance productive use of federal lands with preservation of those lands, while EPA’s only mandate is environmental protection.

I don’t know if BLM made those arguments before Judge Skavdahl, but that’s the case I’d make on appeal, were I in BLM’s unenviable position.

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