Late yesterday, Judge Scott Skavdahl of the federal district court in Wyoming issued a much-anticipated order granting a series of preliminary injunction motions filed in litigation challenging the Bureau of Land Management’s (BLM) final rule regulating hydraulic fracturing on public lands.  (Our full coverage of the litigation is available here.)  In a detailed 54-page opinion preceding the order, Judge Skavdahl set out his rationale as follows:

  • Upon examining each of the laws on which the BLM relied to establish its ability to regulate hydraulic fracturing on public lands, the court found the BLM acted outside the scope of its statutory authority by enacting the final rule.  Specifically, Judge Skavdahl found that the explicit exclusion of hydraulic fracturing from the Energy Policy Act of 2005 removed that activity from the realm of federal regulation, and precluded the BLM from issuing its final rule.
  • In addition, Judge Skavdahl evaluated arguments that the BLM’s final rule is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.”  After assessing the BLM’s arguments to the contrary, the court found that the BLM did not give due consideration to whether its concerns or the “potential impacts” it cited were substantiated by facts.  As a result, Judge Skavdahl held that the BLM’s explanations failed to satisfy the arbitrary and capricious legal standard.
  • The court also credited arguments by the Ute Indian Tribe that the BLM failed to properly consult with it on a government-to-government basis, as required by the BLM’s own policies and procedures.  Judge Skavdahl found that the BLM did little more for the Ute Indian Tribe than what it offered to the public in general, which runs counter to the Department of Interior’s policies requiring extra, meaningful efforts to include tribes in decision-making processes.
  • Judge Skavdahl further found that the states (Wyoming, Colorado, North Dakota, and Utah), the Ute Indian Tribe, and the industry groups involved in the litigation adequately demonstrated that they would suffer “irreparable injury” if a preliminary injunction were not issued, and that issuance of the injunction would pose little more than an inconvenience to the BLM’s interests.

As a result of this order the BLM’s final rule will not be implemented until after the conclusion of the litigation, unless an appellate court reverses Judge Skavdahl’s decision in the interim.

Mineral Law Blog will continue to monitor and report on these legal challenges to the BLM’s new public lands hydraulic fracturing rule as they move forward.