- The Washington Times - Wednesday, September 30, 2015

A federal judge temporarily blocked the Bureau of Land Management’s new rule on hydraulic fracturing Wednesday, suggesting the agency attempted an “end run” around Congress by imposing a layer of regulation in violation of federal law.

U.S. District Court of Wyoming Judge Scott W. Skavdahl granted the preliminary injunction requested in lawsuits filed by four Western states, the Ute Indian tribe and two pro-energy groups, holding that the BLM cannot proceed with the rules without congressional approval.

“An administrative agency derives its existence and authority to regulate from Congressional authorization or delegation,” said Judge Skavdahl in his 54-page order.

“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,” the order said.

He said the rule violates the Energy Policy of Act of 2005 [EPAct], which specifically prohibits the Environmental Protection Agency from regulating hydraulic fracturing, and rejected the argument that the law applies only to the EPA and not the BLM.

“If agency regulation is prohibited by a statute specifically directed at a particular activity, it cannot be reasonably concluded that Congress intended regulation of the same activity would be authorized under a more general statute administered by a different agency,” said the order.

He added that it “seems the BLM is attempting to do an end-run around the EPAct; however, regulation of an activity must be by Congressional authority, not administrative fiat. The Court finds the intent of Congress is clear, so that is the end of the matter.”

The ruling comes as a setback to the Obama administration’s effort to regulate hydraulic fracturing over the objection of the oil and natural gas industry and state officials, who have accused the administration of encroaching on state authority.

“We are overjoyed that we are finally getting relief from the courts regarding the regulatory overreach of the Obama administration,” said Kathleen Sgamma, vice president of government and public affairs at the Western Energy Alliance, which filed one of two lawsuits challenging the rule with the Independent Petroleum Association of America.

Published in March, the rule requires companies to seek federal permission to conduct procedures such as hydraulic fracturing and disclose chemicals used in fracking fluid. Environmental groups cheered the heightened scrutiny, saying it was needed to update federal requirements and protect water supplies in response to the fracking boom.

Six environmental groups represented by Earthjustice have helped defend the BLM against the lawsuits, which have been joined by Colorado, North Dakota, Utah and Wyoming.

Wyoming Gov. Matt Mead said Wednesday that the decision “supports Wyoming’s position — Congress has addressed hydraulic fracturing and precluded federal regulation of it.”

“Wyoming has sound and responsible rules for hydraulic fracturing — those rules have been in place for years,” Mr. Mead said in a statement.

The Department of the Interior released a statement saying that the BLM is consulting with the Office of the Solicitor and the Department of Justice about the ruling.

“While the matter is being resolved, the BLM will follow the Court’s order and will continue to process applications for permit to drill and inspect well sites under its pre-existing regulations,” said the statement.

House Committee on Natural Resources Chairman Rob Bishop, whose panel held a hearing Wednesday over concerns about federal encroachment on state authority, said the judge’s decision “stops the Obama administration from shoving this harmful policy down the states’ throats.”

“This decision and the testimony from today’s hearing from four Western governors solidifies that this rule is both unjustified and unconstitutional,” Mr. Bishop said in a statement.


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