June 24, 2016

Court strikes down federal fracking regulations

By Jonathan Wood Attorney

Over on the Federalist Society’s FEDSOC BLOG, I have a post discussing a recent decision from a federal court that federal bureaucrats overstepped their authority when they adopted fracking regulations. In 2005, Congress exempted fracking from regulation under the Safe Drinking Water Act (the primary federal statute intended to protect drinking water). Undeterred, the Bureau of Land Management adopted regulations several years ago to regulate fracking, citing concerns that it could affect drinking water sources. It asserted that the statutory exemption did not matter because it wasn’t regulating pursuant to the Safe Drinking Water Act. It claimed authority under general federal land use statutes.

The District Court of Wyoming wasn’t buying it. The court ruled that:

[I]t makes no sense to interpret the more general authority granted by [the land use statutes] as providing the BLM authority to regulate fracking when Congress has directly spoken to the “topic at hand” … 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.

As I explain in my post, this likely won’t be the final word on this question.

It’s a near certainty that this decision will be appealed to the Tenth Circuit, so this won’t be the last word on the issue. The case raises a host of key administrative law questions and could give some insight into whether the Supreme Court’s recent skepticism of Chevron deference is seeping its way into the lower courts.

You can read the rest of my post on the Federalist Society’s website here.

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