09/21/2017 - Regulatory Rollback

Hydraulic Fracturing (Fracking) on Federal and Indian Lands

by EELP Staff

The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule, please email us.

Why it Matters

The Bureau of Land Management (BLM) manages 258 million acres of public lands, and nearly 700 million acres of sub-surface minerals such as oil and gas. These minerals are found beneath land managed by agencies such as the Fish & Wildlife Service, as well as private landowners. The rules for federal land and minerals development were written long before high volume hydraulic fracturing and other modern technologies were used to produce oil and gas. This rule modernizes BLM’s program to ensure protection of drinking water with a particular focus on requiring disclosure of the chemicals used in fracking.

Current Status

BLM formally rescinded the 2015 rule, which had never gone into effect due to litigation, on Dec. 29, 2017. California and a coalition of environmental groups challenged the rollback but it was upheld by the Northern District of California in a March 27, 2020 decision. They have appealed this decision to the Ninth Circuit.

June 12, 2020 Environmental groups and the state of California file an appeal of the Northern District of California’s March 27, 2020 decision upholding the Trump administration’s rollback of the 2015 hydraulic fracturing rule. The case will now go to the Ninth Circuit for review of the district court’s decision.

Oct. 21, 2020 California and the environmental plaintiffs submit their opening Opening briefs in their appeal of the Northern District of California’s decision upholding the Trump administration’s rollback of the 2015 hydraulic fracturing rule. State of California v. BLM, et al, No. 20-16157 (9th Cir.); Sierra Club, et al v. David Bernhardt, et al, No. 20-16158 (9th Cir.)

History

March 20, 2015 Six days before the final rule is published, industry groups sue BLM to stop the rule. Independent Petroleum Ass’n of America v. Jewell, 2:15-cv-00041 (D. Wy.)

March 26, 2015 BLM publishes a rule to regulate fracking on public lands and into public mineral rights. The rule is scheduled to take effect June 24, 2015.

May 29, 2015 Wyoming sues BLM and asks the court to halt the rule until the case is decided. Wyoming v. U.S. Dep’t of the Interior, No. 2:15-cv-00043

Sep. 30, 2015 The District of Wyoming grants a preliminary injunction, halting the rule’s implementation while the lawsuit is being decided.

June 21, 2016 The District of Wyoming strikes down the rule. The court read the Safe Drinking Water Act’s exclusion of hydraulic fracturing from that law’s underground injection program to mean that no federal agency can regulate hydraulic fracturing.

June 24, 2016 BLM appeals the decision to the Tenth Circuit court of appeals.

July 13, 2016 The Tenth Circuit lifts the lower court’s stay, putting the rule back into effect.

Jan. 4, 2017 The Tenth Circuit delays oral argument, scheduled for Jan. 17, 2017 – three days before Inauguration Day.

Trump Era

March 9, 2017 The Tenth Circuit asks BLM if it wants to proceed with oral argument, rescheduled for March 22, 2017.

March 15, 2017 BLM files a motion to further delay oral argument and put the case on hold pending agency review of the rule. The motion notes that the rule “does not reflect” the policies of the Trump Administration.

March 17, 2017 The Tenth Circuit asks the parties to file briefs on whether to put the case on hold or make a ruling. Parties who argue that the Tenth Circuit should rule point out that the lower court’s ruling – that the federal government may not regulate hydraulic fracturing even on federal land – could not stand because of its lack of support in the law and its implications for future public lands regulation.

July 25, 2017 BLM proposes voiding the hydraulic fracturing rule and opens a public comment period through Sep. 25, 2017.

July 27, 2017 The Tenth Circuit holds oral arguments on the rule.

Sep. 21, 2017 The Tenth Circuit dismisses the lawsuit as moot (because BLM was proposing to void the rule), but not before vacating the trial court decision. Parties therefore will not be able to rely on the Wyoming court opinion in future lawsuits about federal authority to regulate hydraulic fracturing. This leaves the fracking rule standing, and without further action it will take effect when the court issues a mandate on the decision, due by mid-November 2017.

Oct. 2, 2017 The Ute Indian Tribe asks the Tenth Circuit to review the decision because they did not address tribal sovereignty claims.

Nov. 6, 2017 Wyoming, Utah, Colorado, and North Dakota ask the Tenth Circuit to review the decision since they feel it unfairly granted a victory to environmentalists by reviving the rule without reviewing its legality.

Nov. 6, 2017 The Tenth Circuit gives environmental groups and Interior until Nov. 20, 2017 to file a reply on the requests to review the decision.

Nov. 20, 2017 Environmental groups and Interior file requests asking the court not to reconsider the Sep. 21, 2017 ruling.

Dec. 27, 2017 The Tenth Circuit rejects the states’ request to review the decision.

Dec. 29, 2017 BLM formally rescinds the rule. There will likely be legal challenges to BLM’s rescission.

Jan. 24, 2018 The State of California and a coalition of environmental groups sues BLM over the rescission. California v. BLM, Case No. 18-cv-00521 and No. 18-cv-00524 (N.D. Cal.).

March 30, 2018 The American Petroleum Institute seeks to intervene and join with BLM in the lawsuit.

June 4, 2018 The Tenth Circuit denied January 2018 motions filed shortly after BLM formally rescinded the rule by North Dakota and the Ute Indian Tribe to dismiss the the case as moot and for lack of jurisdiction. Wyoming v. Zinke, No. 16-8068 (10th Cir.).

July 17, 2018 The Northern District of California denies a motion to transfer the litigation challenging BLM’s rescission of the rule to Wyoming. California v. BLM, Case No. 18-cv-00521 and No. 18-cv-00524 (N.D. Cal.).

March 27, 2020 The Northern District of California upholds the Trump administration’s repeal of the 2015 hydraulic fracturing rule. The court determined it did not violate the Administrative Procedure Act, NEPA, or the Endangered Species Act. The court noted that BLM provided a “reasoned explanation” for changing its position on the sufficiency of preexisting and state and tribal regulations and it “did enough to clear the low bar of arbitrary and capricious review.” The court also found that the citizen group plaintiffs did not have standing to sue because they did not allege any current or ongoing environmental harm but that the state of California plaintiffs did. California v. BLM, Case No. 18-cv-00521 and No. 18-cv-00524 (N.D. Cal.).

June 12, 2020 Environmental groups and the state of California file an appeal of the Northern District of California’s March 27, 2020 decision upholding the Trump administration’s rollback of the 2015 hydraulic fracturing rule. The case will now go to the Ninth Circuit for review of the district court’s decision. California v. BLM, 20-16157 (9th Cir.).

Oct. 21, 2020 California and the environmental plaintiffs submit their opening briefs in their appeal of the Northern District of California’s decision upholding the Trump administration’s rollback of the 2015 hydraulic fracturing rule. State of California v. BLM, et al, No. 20-16157 (9th Cir.); Sierra Club, et al v. David Bernhardt, et al, No. 20-16158 (9th Cir.)