By John Knetemann

Last Wednesday, an Obama-appointed Federal judge rejected the Bureau of Land Management’s new regulations on hydraulic fracturing.

During a press briefing at the White House, the first question asked was on this ruling. Press Secretary Josh Earnest responded with the following:

Well, my understanding is that this is something that will be considered by the 10th Circuit, so I’d refer you to the Department of Justice for the legal procedures at play here.  We obviously believe that we’ve got a strong argument to make about the important role that the federal government can play in ensuring that hydraulic fracturing that’s done on public lands doesn’t threaten the drinking water of people who live in the area. That’s a pretty simple proposition. And it’s indicative of the kind of common-sense approach that the Obama administration has pursued.  

This is an approach that seeks to protect public health and public safety while also creating space for innovators to strengthen the economy.  And based on the results that we’ve seen in our economy from the dramatic increase in oil and gas that’s produced in the United States, much of which is attributable to developments like fracturing, I think it’s an indication that we’ve pursued this in the right way.  

And that’s certainly been our policy approach.  But when it comes to the legal authority at stake, we’ll continue to make our case in the courts.

It is not a surprise that this case will be appealed, and will most likely make its way to the Supreme Court. However, this is a completely political answer to a completely legal question. The judge did not reject these new regulations because he thought there wasn’t sufficient evidence that fracking contaminated drinking water. He said that his decision wasn’t a consideration of environmental or health factors, but instead the legality of such a regulation. The judge found that the Department of Interior does not have sufficient congressional approval or authority to institute such a regulation, but instead that this is something states must decide upon.

To this point, Colorado already has similar regulations in place that would protect Colorado citizens from these kinds of issues. While this may be “a pretty simple proposition,” it is also a pretty needless proposition. We do not need every level of our government system telling us the exact same thing. Such regulations can cause conflict between state and federal jurisdiction and create a gray zone of uncertainty.

If the current Administration is interested with instituting this approach to hydraulic fracturing, they need to work with state policy makers and regulatory agencies, and not issue it from their offices in Washington D.C.

John Knetemann is an Independence Institute Future Leader.