The Bureau of Land Management (BLM) purports to regulate all “hydraulic fracturing” – fracking – on federal lands based on the potential impacts of fracking to underground drinking water sources, despite the fact that Congress’s Energy Policy Act lets states, not federal agencies, decide how best to regulate fracking’s potential groundwater impacts. BLM denied that the Energy Policy Act undermines its claim of authority, because the statute doesn’t expressly prohibit it from adopting this regulation. The trial court scrutinized this bureaucratic expansion of power and struck down the unlawful regulation. PLF supports the frackers as they defend the lower court decision in the Tenth Circuit.
BLM is not the federal agency charged with protecting groundwater. Instead, EPA has that role under the Safe Drinking Water Act. None of the general land use statutes that the Bureau implements are directed to the protection of underground drinking water. And in 2005, Congress adopted the Energy Policy Act which removed fracking from EPA’s authority and instead left the responsibility in states’ hands. The states quickly responded by adopting or updating their own regulations, and today every state that has fracking regulates it to protect groundwater. Even so, BLM issued a regulation to ban fracking on lands in which the federal government owns an interest, ostensibly to protect underground sources of drinking water.
Several western states, industry groups, and an Indian tribe challenged the regulation, contending that it was unnecessary and duplicative of existing state regulations and that, in light of Congress’ adoption of the Energy Policy Act, BLM has no statutory authority to regulate fracking. BLM believes it has near limitless authority to regulate all activities occurring on lands in which the federal government owns an interest, under a number of general federal land use statutes and the courts can do nothing to prevent this expansion of power because, it says, courts must defer to agency interpretations of the law under the Chevron doctrine. The federal district court struck down the unauthorized regulation and BLM appealed to the Tenth Circuit. As amicus, PLF argues that BLM’s overreach threatens the constitutional separation of powers and cannot be squared by with the Energy Policy Act.
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