December 12, 2017

Archives for November 17, 2017

Tenth Circuit: Appeal of Fracking Regulation Unripe Due to Uncertainty of Future

The Tenth Circuit Court of Appeals issued its opinion in State of Wyoming v. Zinke on Thursday, September 21, 2017.

In this case, the Tenth Circuit Court of Appeals is asked to decide whether the Bureau of Land Management (BLM) acted beyond its statutory authority when it created a regulation that governed hydraulic fracturing (fracking) on lands owned by the United States.

As fracking has become more common, public concern has increased about whether fracking is contributing to contamination of underground water sources. The BLM responded by preparing a regulation that attempted to modernize the existing federal regulations governing fracking on lands owned by the United States by increasing disclosure of the chemicals used in fracking, updating the standards for wellbore construction and testing, and addressing management of water used in the fracking process.

The finalized, published fracking regulation attempted to regulate fracking in four ways: by (1) imposing new well construction and testing requirements; (2) imposing new flowback storage requirements; (3) imposing new chemical disclosure requirements; and (4) generally increasing BLM’s oversight of fracking.

Shortly before the fracking regulation was to take effect, the Independent Petroleum Association of America (IPAA) and the Western Energy Alliance (WEA) filed a petition for review under the Administrative Procedure Act (APA), opposing the new regulation. North Dakota, Utah, and the Ute Indian Tribe also intervened.

The petition for review asserted that the fracking regulation violated two provisions of the APA in two ways: (1) the regulation was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; and (2) it was in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.

The district court concluded that no statute authorized the BLM to regulate fracking. The district court reasoned that states may regulate underground injections of any substance, not the federal government. According to the district court, only the states could regulate fracking.

While the parties supporting the regulation brought an appeal, the BLM asked this court to hold these appeals in abeyance, explaining that President Trump’s Executive Order required the Department of the Interior to review its regulations, including the fracking regulation, for consistency with the policies and priorities of the new administration. Another Executive Order directed the Secretary of the Interior, as soon as practicable, to publish for notice and comment proposed rules suspending, revising, or rescinding the fracking regulation at issue. The Secretary of the Interior then stated that the BLM would rescind the regulation in full.

The issue addressed in this appeal is whether the BLM has the authority to regulate fracking on lands owned or held in trust by the United States and thereby to promulgate the fracking regulation. The Tenth Circuit Court of Appeals held that the case was not ripe for review, as there was no hardship to the parties. The only harm suffered will be the continued operation of oil and gas development on federal lands, which represents no departure from the status quo since 2015. Further, the BLM will be able to proceed with its proposed rule rescinding the fracking regulation, and would face more uncertainty if these appeals were to remain under advisement. The appeal was held to be unripe and unfit for judicial review.

The Circuit dismissed the appeals, finding that the subject matter is unripe and the record is notably undeveloped or the future is particularly uncertain.

The Tenth Circuit Court of Appeals DISMISSED the appeals as prudentially unripe, VACATED the district court’s judgment invalidating the fracking regulation, and REMANDED with instructions to dismiss the underlying action without prejudice.

Tenth Circuit: Unpublished Opinions, 11/16/2017

On Thursday, November 16, 2017, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

United States v. Jenks

United States v. Portillos

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.