Clarification on the Tenth Circuit Court Dismissal of the BLM Fracking Rule Appeal

September 22, 2017

Denver – This press release clarifies the status of the Bureau of Land Management’s (BLM) hydraulic fracturing rule after yesterday’s Tenth Circuit Court of Appeals dismissal of the appeals. As stated yesterday in our press release, the circuit court’s ruling was a major victory for the Independent Petroleum Association of America (IPAA) and Western Energy Alliance, and we are even closer to finally putting BLM’s ill-conceived fracking rule to bed.

Earthjustice’s and Earthworks’ press releases issued yesterday were incorrect that the BLM fracking rule is now in effect, and display ignorance of the basic workings of the Tenth Circuit Court. Under the Federal Rules of Appellate Procedure, after the Circuit Court enters a judgment, parties to the case have a certain period of time to petition for a rehearing. For cases involving the United States, the time period for submitting a rehearing request is 45 days. Seven days after the time to file a request for rehearing expires or seven days after the Court denies a request for rehearing, the Court issues a mandate. The Circuit Court’s judgment does not become effective and enforceable until a mandate issues. Therefore, it is likely that will not occur until early to mid-November.

The second piece of misinformation Earthworks and others tried to spin yesterday was that the Circuit Court overturned the District Court’s ruling that the federal government does not have the authority to regulate fracking. In fact, the Circuit Court dismissed the environmental groups’ appeal specifically because BLM is in the process of redoing the rule, and therefore addressing the merits of the appeal would be a waste of judicial resources. The vacatur of the lower court decision is procedural, not based on the merits of the ruling. That means that the Circuit Court did not rule that the District Court was wrong, and has not reversed or even criticized the lower court’s ruling. Furthermore, the Tenth Circuit did not feel there is any environmental urgency requiring it to address the merits of the case. The Circuit Court has no reservations about allowing oil and natural gas development to continue on federal and Indian lands under the current regulatory status quo, without the BLM fracking rule. 

“There will be some legal maneuvering between now and when the Circuit Court’s ruling goes into effect, but the bottom line is the BLM fracking rule is not in effect,” said Kathleen Sgamma, president of the Alliance. “The misinformation that the rule is now suddenly enforceable was yet more fake news from environmental groups trying to spin their defeat in court as a victory. I wish to assure all producers operating on federal and tribal lands that yesterday’s ruling does not mean they must suddenly comply with the ill-conceived fracking rule. We urge BLM to finish its rulemaking quickly so that by early November when the Circuit Court’s ruling goes into effect, there will be certainty for companies operating on federal and tribal lands. IPAA and Western Energy Alliance will be submitting comments on Monday, September 25th, the last day of the public comment period.”