Good News on Fracking Rule Ruling

​In March, Judge Haywood Gilliam in the Northern District of California upheld the Trump BLM’s 2017 rescission rule that overturned the 2015 Obama hydraulic fracturing rule. This means that the 2015 fracking rule that the Independent Petroleum Association of America (IPAA) and Western Energy Alliance have been fighting in three different courts for so many years has received another district court ruling against it. And while echoes of Monty Python’s “I’m not dead yet” echo in my ears, as the environmental groups are likely to appeal, the 2015 BLM fracking rule has lost another serious lifeline.

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A rough summary of how we got here:

• In 2015, the Obama Administration finalized a hydraulic fracturing rule. IPAA and Western Energy Alliance immediately file suit in the Wyoming District Court, followed later by the states of Wyoming, North Dakota, Colorado, and Utah and the Ute Tribe, and obtained a stay. Because of trade associations focused on the small, independent producer, working with states and tribes, the 2015 rule has never gone into effect.
  
  
• In 2016, Judge Skavdahl in the Wyoming District Court rules that states, not the federal government, have jurisdiction to regulate fracking, and overturns the 2015 rule.
  
  
• Environmental groups appeal to the Tenth Circuit Court, but in 2017, the circuit court dismisses the case as moot along with the Trump Administration’s new rule rescinding the 2015 rule.
  
  
• At the end of 2017 after the rescission rule is finalized, environmental groups along with the states of New Mexico and California sue in the District of Northern California. The decision to file in the San Francisco court was a clear case of venue shopping, as there’s much less federal production in California than Wyoming, and the plaintiffs didn’t want a court with the knowledge and experience of the rule and federal development that the Wyoming court has.
  
  
• IPAA and Western Energy Alliance intervene in the case, as does the State of Wyoming and API. Although API had not been involved in the fracking rule to that point, API was likewise concerned about the precedent that could be set by overturning the rescission rule, since it had gone through the proper rulemaking process.
  
  
• After the usual slow winding through the courts, we fast forward to today, with the successful ruling upholding the rescission rule.
  

 
We’ll see what the next move is from the environmental groups, but it’s pretty damning that the San Francisco-based court has put another dagger in the heart of the 2015 fracking rule. An appeal to the Ninth Circuit, also largely perceived as liberal, is likely, but even that court has precedent regarding the discretion of the Executive Branch to set policy. The Trump Administration went through the proper rulemaking process, and although the judge made clear in his ruling that it is not the policy he prefers, he adhered to the Administrative Procedures Act (APA) in upholding the rescission rule.

Author

Kathleen Sgamma, President of Western Energy Alliance

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