Judge OKs loosening of Obama-era restrictions on fracking

(Courthouse News) The Bureau of Land Management did not violate environmental laws when it rescinded Obama-era restrictions on fracking throughout the western United States, a federal judge ruled Friday.

Joined by a coalition of conservation groups, California’s Attorney General sued the Bureau of Land Management and Department of Interior after it decided to repeal a 2015 rule that tightened restrictions on hydraulic fracturing for natural gas on federal and tribal lands.

But a legal challenge brought by the states of Wyoming and Colorado stopped the 2015 Fracking Rule from ever taking effect. After a federal judge in Wyoming issued an injunction, the Tenth Circuit took the case up on appeal, and its review of the injunction was still pending when the bureau repealed the rule.

U.S. District Judge Haywood Gilliam referenced the legal logjam in his 30-page opinion Friday, saying the environmental landscape was unaltered by the repeal.

“Without dispute, the 2015 Rule was never in effect in this case, and the Tenth Circuit declined to reach the merits of the injunction based on BLM’s intention to rescind that rule. So the court cannot find that the repeal significantly impacted the environment,” he wrote.

Because of the injunction, Gilliam found, the rule’s environmental protections stayed hypothetical. “Instead, the environmental status quo never changed,” he said.

In addition to finding in the bureau’s favor on California’s National Environmental Policy Act claim, Gilliam said the repeal of the rule didn’t seem to have a threatening effect on any endangered species.

“BLM contends, as it did with respect to plaintiff’s NEPA allegations, that the repeal maintained the environmental status quo on BLM lands such that there would be no effect on threatened species or their habitats from the repeal,” he wrote. “Instead, BLM already had protections in place for threatened species through site specific measures on lands open for oil and gas development and the repeal did not open any additional lands previously lacking protections. The court agrees that BLM provided a rational connection between its choice to repeal the 2015 Rule and the fact that BLM lands open to oil and gas development already employed site-specific protections where needed.”

Earthjustice attorney Tom Delehanty, who represents the Center for Biological Diversity, the Sierra Club and the Wilderness Society, among other groups, told Courthouse News in an email that while disappointing, Gilliam’s ruling was not an endorsement of the bureau’s actions.

“By repealing the 2015 BLM hydraulic fracturing rule, the Trump administration has put our environment and vulnerable communities at risk from groundwater pollution caused by poorly designed and constructed fracking operations. While we’re of course disappointed by this ruling, the fight to protect our lands and communities from fracking will continue,” Delehanty said. “Notably, the court’s ruling did not address the merits of most of our claims and expressly declined to endorse the Trump administration’s repeal as a matter of environmental policy.”

Rebecca Jaffe, an attorney with the Department of Justice’s Environment and Natural Resources Division, declined to comment on the case, as did a Justice Department spokesperson. California Attorney General Xavier Becerra’s office said they are reviewing the ruling.