August 19, 2016

Law profs - including Prof. Funk and Prof. Blumm - issue takedown of decision striking fracking rule

Dozens of law professors - including Prof. Funk and Prof. Blumm from Lewis & Clark -  banded together this week to assail a federal court’s recent decision striking down the Obama administration’s hydraulic fracturing rule. The Environment and Energy reporter is LC alum, Ellen Gilmer.

Law profs issue take down of decision striking fracking rule
Ellen M. Gilmer, E&E reporter (and LC alum)

Published by Environment & Energy Publishing LLC  : Thursday, August 18, 2016

Dozens of law professors banded together this week to assail a federal court’s recent decision striking down the Obama administration’s hydraulic fracturing rule.

According to 36 energy, public lands and environmental law experts, the U.S. District Court for the District of Wyoming got it wrong when it found fracking to be beyond the authority of the Interior Department and its Bureau of Land Management.

“The lower court’s decision has no basis in legal precedent or relevant statutes and violates basic canons of statutory interpretation,” the professors told the 10th U.S. Circuit Court of Appeals, which is reviewing the decision. “It reads a sweeping government-wide exclusion into a surgical amendment explicitly tied to one statute. As a result of this decision, the BLM cannot fulfill its statutory mandate to serve as the chief steward of our public lands.”

The arguments come in the form of a friend-of-the-court brief submitted to the 10th Circuit yesterday. In particular, the professors take issue with the lower court’s interpretation of the Safe Drinking Water Act, as amended by the Energy Policy Act of 2005.
The states challenging the rule — Wyoming, Colorado, North Dakota and Utah — argued that the laws, which effectively remove most fracking from U.S. EPA’s oversight, apply broadly to all federal agencies. The district court leaned heavily on that argument in its ruling that the fracking rule exceeded BLM’s authority, further noting that public lands laws like the Mineral Leasing Act and the Federal Lands Policy and Management Act never expressly give Interior power over the oil and gas production process (EnergyWire, June 22).
According to the law professors, several of whom have worked for Interior, the Justice Department and EPA, that interpretation goes against Congress’ intent to craft a “narrowly tailored” exemption.

“[T]he court’s faulty reasoning violates basic rules of statutory interpretation informed by common sense, which make clear that Congress’s adoption of a narrowly tailored exemption from hydraulic fracturing under the SDWA cannot be extended to cover all manner of other federal regulation of hydraulic fracturing activities,” they said.

Such an interpretation could have unintended consequences, they wrote. Applying the district court’s logic, BLM would be unable to regulate a range of other activities not specifically mentioned in FLPMA, the MLA and other laws, including hardrock mining, off-highway vehicle use, river rafting and snowmobile use.

“FLPMA and other enabling statutes do not contain detailed laundry lists of the activities the BLM may regulate, precisely because they afford broad general authority to the BLM, for instance under FLPMA section 302(b), to address issues and activities as they arise on federal lands,” the brief says. “If the district court’s effort to strip the BLM of its authority to regulate hydraulic fracturing on public lands is allowed to stand, far more is at risk than this particular BLM regulation.”

The states’ legal briefs and the decision at the district court cite a law review article discussing the limits of the federal government’s authority over fracking. The professor, Florida State University’s Hannah Wiseman, has argued that her paper was taken out of context (E&ENews PM, June 22), and signed on to this week’s letter.
“This case should be a slam dunk for the BLM even if the appellate court were to give little deference to the agency,” she said in an email. “The agency clearly has the authority — indeed, a duty — to regulate hydraulic fracturing under several of its enabling statutes.”

University of Denver’s Fred Cheever said the district court’s decision played into a “broader political agenda,” while University of Colorado’s Mark Squillace, who served a brief stint in the Interior solicitor’s office during the Clinton administration, called the court’s reasoning “preposterous.” University of Houston’s Susan Sakmar said a reversal of the decision would be a “no brainer” for the 10th Circuit.

The group of professors also includes University of Houston’s Marcilynn Burke, a former high-ranking official at BLM and Interior who helped craft the fracking rule; Columbia Law School’s Michael Burger, head of the Sabin Center for Climate Change Law; and several authors of environmental casebooks used in law school classrooms across the country, including UCLA’s James Salzman, Lewis & Clark’s William Funk, George Washington University’s Robert Glicksman and the University of Minnesota’s Alexandra Klass.

A group of former Interior officials is also expected to file a brief supporting the fracking rule this week.

Note: the E & E reporter, Ellen Gilmer, received her Master of Studies in Environmental, Natural Resources, and Energy Law (MSL) from Lewis & Clark Law School. For more information about the MSL program visit: