HEY, JUDGE SKAVDAHL - DON’T THE INTERESTS OF THE UNITED STATES INCLUDE PROTECTING GROUNDWATER ON ITS OWN LAND?

Posted on July 6, 2016 by Karl Coplan

The Mined Lands Act directs the Bureau of Land Management to issue regulations governing mining on public lands for, inter alia, “the protection of the interests of the United States, . . . and for the safeguarding of the public welfare.” More recently, the Federal Lands Policy Management Act specifically directs the BLM to take environmental issues into account in promulgating regulations governing the use of federal lands, that is, to manage federal lands in a way,

That will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values,

Last year, acting under these statutory authorities, the BLM issued regulations governing fracking on federal lands, which required federal lessees to disclose chemicals in their fracking fluids and to take measures to prevent well leakage.  This week, the Federal District Court for the District of Wyoming struck down these regulations as exceeding BLM’s authority to regulate mining on public lands. The Court purported to find this result under the Chevron step I analysis, i.e., finding specific congressional intent that the Bureau of Land Management does not have authority to protect groundwater on public lands.  Despite the broad statutory authorities cited above, the Court found that the Energy Policy Act of 2005, which specifically exempted fracking from EPA regulation under the Safe Drinking Water Act, evidenced Congressional intent that no federal agency has jurisdiction to regulate fracking activities, even on federal lands.

This ruling ignores the obvious difference between EPA regulation to protect groundwater generally under the Safe Drinking Water Act and actions by the BLM to protect the United States’ own properties that are subject to federal leases.  FLPMA specifically directs BLM to take measures to protect ecological interests in managing federal lands, and it seems inappropriate for a federal court to second guess BLM’s balance between resource extraction and groundwater protection.  The United States in general has very broad authority to regulate activities on its own land, and Congress’ decision to exempt fracking on private lands from EPA regulation can’t possibly be read as specific Congressional intent to preclude BLM from protecting groundwater on lands owned by the United States. On another level, this decision reflects a concerning trend towards judicial activism tearing down the Obama administration’s invocation of statutory authorities to advance environmental protection in the face of a hostile Congress – witness the Supreme Court’s stay of EPA’s Clean Power Plan, and the Sixth Circuit’s stay of the Clean Water Rule.              

Environmental law got its start when courts, like the Second Circuit in Scenic Hudson Preservation Conference v. Federal Power Commission, read broad statutory grants of regulatory authority to include environmental protection.  This decision by the District of Wyoming departs from that tradition.  The BLM plans to appeal.



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