- The Washington Times - Wednesday, June 22, 2016

DENVER — Even before a federal court ruling threw out the Obama administration’s hydraulic fracturing rule this week, foes of fracking were struggling to dig their way out of a hole after a string of policy and regulatory reversals.

Other environmental crusades targeting the oil and gas industry show signs of progress, but “fractivists” have absorbed a series of political and legal defeats that call into question whether the tactic once viewed as a surefire gusher will ever amount to more than fool’s gold.

The latest setback was delivered by U.S. District Court Judge Scott Skavdahl of the District of Wyoming, who ruled late Tuesday that the Interior Department exceeded its authority with its 2015 rule governing hydraulic fracturing, a widely used extraction technique used to separate oil and natural gas from rock. States have been the primary regulators.

The process has revolutionized world energy production patterns but has faced determined resistance from environmental groups arguing that fracking is either unproven or unsafe.

“Congress’ inability or unwillingness to pass a law desired by the executive branch does not default authority to the executive branch to act independently, regardless of whether hydraulic fracturing is good or bad for the environment or the citizens of the United States,” Judge Skavdahl wrote in his 27-page opinion.

The judge, appointed to the bench by President Obama in 2011, had placed a hold on the regulations pending the outcome of the lawsuit brought by industry groups and four Western states: Colorado, North Dakota, Utah and Wyoming.

“For the past year, we’ve successfully made the case that these rules unlawfully interfere with Colorado’s sovereign right to responsibly and safely regulate the oil and gas industry,” Colorado Attorney General Cynthia H. Coffman said Wednesday. “This case is another unfortunate example of federal bureaucrats overstepping their authority.”

The White House characterized the fracking ruling as a temporary and isolated setback and noted that the 10th U.S. Circuit Court of Appeals is also reviewing the case.

“We obviously believe that we’ve got a strong argument to make about the important role the federal government can play in ensuring that hydraulic fracturing that’s done on public lands doesn’t threaten the drinking water of people who live in the area,” White House spokesman Josh Earnest said. “It’s a pretty simple proposition.”

The decision sideswiped a movement still reeling from another stinging court defeat. Six weeks earlier, the Colorado Supreme Court struck down fracking bans passed by two localities — Fort Collins and Longmont — ruling that state law regulating the industry trumps city and county ordinances.

Not even the Environmental Protection Agency has proved to be a reliable ally. In a long-awaited assessment on fracking and water quality released June 4, the EPA concluded that U.S. fracking activities are “carried out in a way that have not led to widespread, systemic impacts on drinking water resources.”

Food & Water Watch, a leading anti-fracking group, accused the EPA of “injecting politics” into the study by doing the bidding of the fossil fuel industry.

“The fracking industry and big banks have huge stakes in promoting fracking, and we believe their influence explains why EPA chose to run with the controversial and unsupported headline,” Food & Water Watch senior researcher Hugh MacMillan said in a June 14 statement. “Now, the EPA has some explaining to do.”

Kathleen Sgamma, Western Energy Alliance vice president for government and public affairs, said the anti-fracking movement’s problem isn’t a lack of friends in the Obama administration but rather overreach.

“By attempting to stop or make fracking more difficult, either through redundant regulation or ballot initiatives, anti-fossil-fuel forces ran into reality. States are safely regulating fracking and protecting the environment, and citizens increasingly understand that balance,” said Ms. Sgamma. “Environmentalists thought their typical scare tactics could work and the public would buy it, but this year has shown that calmer heads are prevailing.”

Losing ground

The anti-fracking movement hit its peak in 2014 when New York Gov. Andrew Cuomo, a Democrat, issued a statewide ban two years after Vermont outlawed the practice.

Since then, the movement has lost ground even as other environmental campaigns score points at the expense of industry. The Keep It in the Ground effort has successfully delayed several federal mineral-lease sales, and the coal industry has been hit hard by the Obama administration’s tough emissions regulations in what critics call a “war on coal.”

The divestment campaign notched a win last month after persuading the University of Massachusetts to sell off its direct holdings in fossil fuels, although industry supporters point out that most institutions have little or no such direct investments, but rather hold shares in pooled funds.

Against that backdrop, the anti-fracking movement has emerged as something of a weak link. A bright spot appeared this month when voters passed a fracking ban in Butte, California, a town with little or no oil and gas exploration but an active progressive electorate.

Indeed, the anti-fracking movement’s best moments have been at the ballot box in liberal college towns where anti-industry sentiment runs high.

In Monterey, California, voters are slated to decide on an anti-fracking measure in November. Monterey does have oil and gas activity, although the initiative would apply only to “new wastewater injection wells and wastewater ponds,” not the more than 1,500 oil and gas wells already operating.

In Colorado, fractivists are moving to override the state Supreme Court’s decision with a pair of proposed state ballot measures. Initiative 75 would allow localities to make their own fracking rules, and Initiative 78 would require 2,500-foot setbacks between industry operations and “areas of special concern,” which would effectively ban oil and gas development on about 95 percent of the surface area in the five most active producing counties.

The problem is whether the Colorado movement has the financial and political muscle to reach the ballot, given the staunch opposition of Republicans and top Democrats. Although Democrats have called for action to combat climate change, that hasn’t translated into organized opposition to fracking.

In California, a refusal by Gov. Jerry Brown, a Democrat, to support fracking bans has made the issue a nonstarter. Another Democrat, Colorado Gov. John Hickenlooper, has made life difficult for the movement with his strong support for the oil and gas industry.

Two years ago, Mr. Hickenlooper effectively turned fractivists into political personas non grata by persuading Rep. Jared Polis, a Democrat, to pull his financial backing for a statewide anti-fracking ballot initiative. Since then, the movement has struggled to find support among top Democrats, while the pro-industry group Protect Colorado has actively fought to keep such proposals off the ballot.

This year, Yes for Health and Safety Over Fracking has raised about $85,000 to place the two measures on the ballot. About $50,000 came from a single donor, Patricia Olson of Boulder, according to state campaign finance reports.

The Interior Department declined to announce immediately whether it would appeal the judge’s ruling but described it as unfortunate “because it prevents regulators from using 21st century standards to ensure that oil and gas operations are conducted safely and responsibly on public and tribal lands.”

The Sierra Club responded with a statement saying that the Bureau of Land Management “has the authority to safeguard our health and our environment from the dangers of fracking.”

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