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Smack down: Bureau of Land Management fracking regulations rejected

By John Knetemann

All the Bureau of Land Management has is a hammer, and everything to them is a nail.

Today, Wyoming federal judge Scott Skavdahl rejected the Bureau of Land Management’s new fracking rules published under the name “Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands.

According to the Bureau of Land Management, this rule began being written in November of 2010, which is well over five years ago, and was meant to take effect on June 24, 2015. However, this rule was delayed when Judge Scott Skavdahl granted a request from North Dakota, Colorado, Utah, and Wyoming for review of the BLM’s new regulations.  In the regulation the BLM states:

The BLM final rule on hydraulic fracturing serves as a much-needed complement to existing regulations designed to ensure the environmentally responsible development of oil and gas resources on Federal and Indian lands, which were finalized nearly thirty years ago, in light of the increasing use and complexity of hydraulic fracturing coupled with advanced horizontal drilling technology.

In a press release issued on March 20, 2015 for the new regulations, the BLM states that the key components of the regulation are:

  • Provisions for ensuring the protection of groundwater supplies by requiring a validation of well integrity and strong cement barriers between the wellbore and waterzones through which the wellbore passes;

  • Increased transparency by requiring companies to publically disclose chemicals used in hydraulic fracturing to the Bureau of Land Management through the website Fracfocus, within 30 days of completing fracturing operations.

  • Higher measures of interim storage of recovered waste fluids from hydraulic fracturing to mitigate risks to air, water, and wildlife;

  • Measures to lower the risk of cross-well contamination with chemicals and fluids used in the fracturing operation, by requiring companies to submit more detailed information on the geology, depth, and location of preexisting wells to afford the BLM an opportunity to better evaluate and manage unique characteristics.

On the day this regulation was issued, March 20, 2015, Western Energy Alliance and the Independent Petroleum Association of America filed a lawsuit against the Bureau of Land Management. According to the lawsuit, the Bureau of Land Management’s new regulations are “procedurally deficient” and “arbitrary and unnecessary burdens that either duplicate state law requirements or improperly curtail the primary jurisdiction of state governments”.

Judge Skavdahl, who rejected the new regulations today, said that this was not a matter of the environmental safety or health effects of fracking, but instead about the jurisdiction of whether “Congress has delegated to the Department of Interior legal authority to regulate hydraulic fracturing.” In this, the judge has ruled that this is not within the BLM’s, which is a part of the Department of Interior, jurisdiction.

Regardless of the jurisdiction of the Bureau of Land Management, it is worth looking at the language of the regulation written. The BLM says that this is a “much-needed complement,” but how needed was this “much-needed” regulation? The report and rule by the BLM doesn’t cite a single issue occurring with fracking that this is addressing. It says that “90 percent of the approximately 2,800 new wells spudded in 2013” used hydraulic fracking, but not one of these 2,520 fracking sites are experiencing the issues it is aiming to fix. The only evidence the report provides is a host of public comments given expressing concern over fracking. In the press release for the regulation, it boasts “a robust and transparent public process that included more than 1.5 million public comments.”

Public comments are fantastic, but it seems that the “much needed” regulation is not a response to a real issue being experienced, but rather a vocal anti-fossil fuel minority and misinformation among the general public. The biggest reasons for this not being a problem among fracking sites is that (1) states already impose similar, if not identical, regulation, and (2) fracking continues to be developed more and more to prevent these kinds of problems.

John Knetemann is an Independence Institute Future Leader.