The Department of Interior’s fracing regulations paused by Wyoming judge

A group including several states and Native American tribes filed their final briefs with a Wyoming judge today to stop new federal rules regarding hydraulic fracturing. The U.S. Department of Interior is appealing a preliminary injunction by filing their opening brief this week in the U.S. 10th Circuit Court of Appeals in Denver, reports the AP.

The DOI and its Bureau of Land Management are trying to implement more stringent regulations on oil and gas operations that would require additional well integrity tests and enhanced public disclosure of fluids used during hydraulic fracturing operations on federal lands.

At issue: BLM lacks authority to regulate hydraulic fracturing

Last year, U.S. District Judge Scott Skavdahl blocked the implementation of those rules in response to a legal challenge from the states of Colorado, North Dakota, Utah and Wyoming. The states claim the BLM lacks authority to regulate hydraulic fracturing.

The states, along with groups representing the energy industry and the Ute Indian Tribes of the Uintah and Ouray, based in Utah, filed their final briefs with Skavdahl this week. It is now up to the judge either to rule on the case or possibly hold more hearings.

The states point to the 2005 Safe Drinking Water Act, which bars the federal government from regulating underground injections like fracing, except when diesel fuel is used. And in that instance regulatory authority lies with the U.S. Environmental Protection Agency, not the DOI. Furthermore, Skavdahl said, existing laws limit the Interior’s authority to oil and gas activities on the surface, reports Casper Star Tribune.

The Interior’s lawyers and environmental groups cite the Mineral Leasing Act and the Federal Land Management and Policy Act, which they say gives the government broad powers to regulate development on federal land.

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“Every federal oil and gas regulation since 1920 has addressed subsurface operations and has sought to protect subsurface resources, including groundwater,” the government’s attorneys wrote in their appeal.

Complicating the matter further, however, is the fact that the 10th Circuit will be considering the merits of Skavdahl’s injunction even as the judge continues to decide the legal basis for the original case. Attorneys on both sides expect a decision from the Wyoming District Court in the next couple of months.

The debate by politicians, environmental groups and media regarding the effects of hydraulic fracturing on drinking water has been a favorite protest topic since the shale boom started. The combination of horizontal drilling and hydraulic fracturing resulted in the shale boom by allowing strong production of oil and natural gas from tight (nonporous rock) formations in shale layers around the U.S. and Canada.

However university-led studies produced data from hundreds of water well tests in the vicinity of oil and gas wells that were fractured in the Appalachian basin and in Texas. The university data indicate that in the few occasions where contaminated water wells were detected in the area of the oil or gas wells, it was caused not by the process of hydraulically fracturing the rock, but by well casing and cement failures. In the studies, Duke, Ohio State, Stanford, Dartmouth and Rochester scientists concluded that failed pipe and cement allowed gas to leak, not hydraulic fracturing.

Regardless of the scientific facts, activists and politicians like Bernie Sanders have found they can generate political capital by issuing emotional appeals to stop fracing.

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