Federal District Court: Feds May Not Regulate Fracking on Federal Lands
In a merits opinion issued on June 21, 2016, the U.S. District Court for the District of Wyoming (Judge Skavdahl) held that the U.S. Bureau of Land Management--the agency tasked with protecting and preserving federal lands for multiple uses by the public--lacks the authority to regulate hydraulic fracturing ("fracking") on federally-owned and managed lands. Using a Chevron step 1 analysis (one standard used to review agencies' interpretation of the meaning of statutes that grant agencies authority), the court finds that "Congress has directly spoken to the issue and precluded federal agency authority to regulate hydraulic fracturing," with the exception of fracturing that uses diesel fuels. The court bases this erroneous conclusion on the Safe Drinking Water Act (SDWA)--an Act that governs Environmental Protection Agency and state authority over underground water sources. Under the SDWA, entities that inject substances underground must first obtain a permit from the EPA or a state to ensure that they will not endanger underground drinking water sources.
In 2005, Congress revised the SDWA to provide that the Act excludes non-diesel fracking from the definition of "underground injection" governed by the SDWA. Specifically, the SDWA provided, beginning in 2005: "For purposes of this part …
The Colorado Supreme Court's decisions last month holding that local governments in Colorado could not ban or place long-term moratoria on hydraulic fracturing ("fracking") added to the growing list of states that have preempted local control over this oil and gas production method. This is a troublesome trend and one that calls for closer scrutiny as more states follow this path.
Local governments are "merely" arms of the state, and, therefore, states do have the power to take back the broad land use authority they have historically delegated to local decision makers if they so choose. This is true even in states that have granted broad home rule authority to local governments through their constitutions, although the ability of a legislature or court to take back constitutionally granted home rule is somewhat more limited.
In Colorado, for example, the state constitution makes clear that local law …
