In a win for good environmental policy, the federal district court in Wyoming struck down the Bureau of Land Management’s controversial hydraulic fracking rule.

The rule would have set federal water, chemical disclosure, and construction requirements for fracking operations on federal and Indian lands in addition to already existing state regulations.

The Case

At issue in the case was whether Congress had ever given the BLM (a Department of Interior agency) the duty or authority to regulate fracking. Quoting from a 1973 case, the court said of the BLM: “An agency may not bootstrap itself into an area where it has no jurisdiction.”

Contrary to its claims, the BLM has neither a history of regulating fracking on federal lands nor congressional authority to do so. Congress clearly gave that authority (through the Safe Drinking Water Act) to the Environmental Protection Agency. This duty was upheld by the courts and later retracted by Congress in the Energy Production Act of 2005. On this matter, the court said:

Having explicitly removed the only source of specific federal agency authority over fracking, it defies common sense for the BLM to argue that Congress intended to allow it to regulate the same activity under a general statute that says nothing about hydraulic fracturing … The BLM has attempted an end-run around the 2005 [Energy Policy] Act.

The court’s determination led to a lesson on constitutional government and separation of powers: “In recent years, as does the BLM here, federal agencies have increasingly relied on Chevron deference to stretch the outer limits of its “delegated” statutory authority by revising and reshaping legislation.” (For more on Chevron deference, see here.) Only Congress has the authority to delegate duties to the BLM.

Better Environmental and Energy Policy

In response to the ruling, a Department of Interior spokesman said:

It’s unfortunate that implementation of the rule continues to be delayed 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.

Not only was this misleading, but this statement also fails to recognize what constitutes good environmental stewardship. The BLM started work on its first regulation of fracking operations in November 2010 and did not finalize a rule until March 2015. In contrast, states have effectively regulated fracking operations on private, state, and federal lands for decades and have updated regulations with technological advancements.

According to the Western Energy Alliance, states have overseen 1.2 million fracking operations, 98 percent of which occur in seven states (four of which sued the government over the BLM’s rule). This local expertise, rather than the BLM’s one-size-fits-all approach, leads to environmental policy that is better suited to unique landscapes and more responsive to local concerns.

To this point, the Western Governors’ Association noted in a letter to the Department of Interior:

Most of the federal and tribal lands where BLM has jurisdiction and where this new federal rule will apply are located in Western states that have a long history of oil and gas production and robust regulations designed to protect the environmental and public health. Because there are often profound differences in geology, ecology, hydrology and meteorology, the states are best equipped to design, administer and enforce laws and regulations related to oil and gas development.

The rule would have been a detriment to good energy policy and environmental policy alike. Adding a redundant layer of federal regulation on top of what states already do would certainly increase wait periods. The BLM took an average of 220 days simply to complete a drilling permit application compared to an average of 30 days for states. Extended wait times and administrative headaches do not add up to good energy policy or a safer, cleaner environment.

Despite what the BLM may believe, it does not have a roving commission to fix whatever problems it sees. Congress delegates responsibility to the governmental agencies. In this case, Congress has empowered states, not the BLM, to regulate fracking and in doing so has protected more responsive, adaptive energy and environment policy.