American Oil and Gas Reporter - July 2016 - 39

gress has spoken directly to the 'topic at
hand' in the (Energy Policy Act)."
Slow Regulatory Overreach
"The judge could not have been more
clear when he ruled, 'Congress has not directed the BLM to enact regulations governing hydraulic fracturing. Indeed, Congress has expressly removed federal agency
authority to regulate the activity, making
its intent clear,'" exults IPAA's Russell.
Adds Congressional Western Caucus
Chairwoman Cynthia Lummis, R-Wy.,
"(Skavdahl's ruling) is a victory not only
for state management and responsible
stewardship of our natural resources, but
also for states' rights. The rule undermined
the careful and efficient regulation of
fracturing that states have put in place."
Thomas Pyle, president of the Institute
for Energy Research, calls the ruling "a
big victory for American families, businesses, and anyone who cares about affordable energy."
But in a larger sense, Pyle goes on,
"This ruling, along with the (U.S.)
Supreme Court's stay of EPA's carbon
rule (see "High Court Freezes Clean
Power Plan," AOGR, March 2016), is an
encouraging sign that the administration's
out-of-the-mainstream agenda is finally
being called into check."
BakerHostetler's Barron explains that
federal agencies-especially under the
Obama administration-have increasingly
relied on Chevron U.S.A. Inc. v. Natural
Res. Def. Council "to stretch the outer
limits of (their) 'delegated' statutory authority by revising and reshaping legislation."
Chevron is a 1984 Supreme Court ruling that holds when reviewing federal
agency authority, if Congress has not
specifically addressed the question, "the
reviewing court must respect the agency's
construction of the statute, so long as it
is permissible," according to Skavdahl's
opinion in Wyoming v. DOI.
However, Barron says Skavdahl counters, "If this court was to accept (BLM's)
argument, there would be no limit to the
scope or extent of congressionally delegated authority (that) BLM has, regardless
of topic or subject matter."
U.S. Senate Environment and Public
Works Chairman Jim Inhofe, R-Ok.,
cheered that aspect of Skavdahl's ruling,
according to published reports, stating,
"Time and again the courts are blocking
action by the Obama administration that
flagrantly goes against the will of Congress
and the American people."

others warn. H. Sterling Burnett, an environment and energy policy research
fellow at The Heartland Institute, comments, "While I applaud the ruling and
am thankful a federal court decided to
uphold Congress' standing as the solely
authorized entity with the power to write
laws, I wouldn't be surprised if the Obama
administration largely ignores the ruling
and hampers existing fracturing projects
on public lands and stalls future ones
through executive orders and rules. The
evidence shows this administration is an
avowed enemy of using fossil fuels."
Barron says he expects BLM or special-interest-group intervenors to appeal
to the U.S. Court of Appeals for the 10th
Circuit, which already has before it a
Justice Department appeal of Judge Skavdahl's preliminary injunction (AOGR,
January 2016, pg. 14).
Indeed, one published report quotes
White House spokesman Josh Earnest
calling Skavdahl's ruling a temporary
setback and saying, "We obviously believe
we have a strong argument to make about
the important role the federal government
can play in ensuring that hydraulic fracturing done on public lands doesn't threaten the drinking water of people who live
in the area. We will continue to make our

case in the courts."
Another report says Earthjustice has
announced its intent to appeal the ruling
on behalf of "a coalition of six environmental organizations backing the BLM
rule."
(Editor's Note: According to published
reports, on June 24, government attorneys
from the Justice Department's Environment and Natural Resources Division
filed notice that they intended to appeal
Judge Skavdahl's ruling to the 10th Circuit
in Denver.)
Nevertheless, the Western Energy Alliance's Sgamma emphasizes that Skavdahl
ruled solely on BLM's statutory authority,
and didn't mention the associations' arguments that the agency's rule making
violated the Administrative Procedures
Act, "which we believe are still strong
and represent another line of defense."
Says Barron, "Even if the 10th Circuit
was to reverse the ruling, a remand to the
district court likely still will be necessary
to decide IPAA's and the Alliance's multitude of technical and administrative
challenges to BLM's unlawful rule-the
same technical and administrative challenges that the district court concluded
likely would be successful on the merits
at the preliminary injunction stage." ❒

Anticipating Appeal
However, the final chapter on hydraulic
fracturing regulations has yet to be written,
JULY 2016 39
American Oil and Gas Reporter - July 2016

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