What the Frack Is Up With BLM’s Fracking Rule?

Last week, the 10th Circuit Court of Appeals dismissed as prudentially unripe appeals of last year’s District Court decision striking down BLM’s 2015 fracking rule.  The District Court ruled that BLM had no authority to issue the rule.  At the time, I thought that the District Court was on shaky ground.  So did BLM and various environmental groups.  They appealed.

Now, in a refrain being replayed in what seems like dozens of cases in multiple courtrooms, BLM moved to dismiss the appeals as unripe, because Secretary Zinke has announced his intention to rescind the fracking rule.

The Court concluded quite reasonably that there was not much point in litigating BLM’s authority to promulgate the 2015 rule when the current administration has already announced its intention to get rid of the rule.

Fair enough, but the Court then had to decide what to do about the District Court’s decision.  Noting the similarity to cases involving mootness, the Court stated that:

we generally vacate the district court’s judgment to prevent it “from spawning any legal consequences.”

The Court thus vacated the District Court decision and dismissed the underlying case.  That certainly prevents it from “spawning any legal consequences.”  It is now as though the case never happened and the District Court decision carries no weight.

Of course, there is one practical legal consequence to the Court of Appeals’ decision.  The 2015 fracking rule – the same one that lost in District Court and that Secretary Zinke has said he wants to rescind – is now, at least temporarily, back in effect.

Be careful what you wish for.

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