Two Bureau Of Land Management Regulations On Life Support Under President Trump

In Short

Background: During the Obama Administration, the Bureau of Land Management issued the Hydraulic Fracturing on Federal and Indian Lands Final Rule and the 2016 Methane and Waste Prevention Rule. Both rules prompted petitions for court review.

What's Happening: The recent change in administration has caused a flurry of questions regarding the government's position on these issues and provoked Congress to act.

Looking Ahead: The future of the Federal and Indian Lands Rule and the Methane Rule will be determined in the coming weeks based on the actions of the court, Senate, and President Trump.

The Trump Administration has signaled its intent to pull the plug on two rules issued by the U.S. Department of Interior's Bureau of Land Management ("BLM") in 2015 and 2016. Legal and legislative developments over the next weeks will likely determine whether and to what extent these Obama-era regulations remain in place.

The U.S. Court of Appeals for the Tenth Circuit is reviewing a lower court decision regarding BLM authority to regulate hydraulic fracturing, or fracking, on public and tribal lands. In March 2015, BLM issued the Hydraulic Fracturing on Federal and Indian Lands Final Rule ("Federal and Indian Lands Rule") implementing requirements relating to fracking well integrity, the disclosure of fracking chemicals, and the storage of fracking waste water. Wyoming, Utah, North Dakota, and Colorado, along with industry groups and several Native American tribes, challenged the rule in federal district court in Wyoming. In June 2016, Judge Scott Skavdahl struck down the Federal and Indian Lands Rule, finding that BLM lacked congressional authority to promulgate the regulations. BLM argued that Congress gave it authority to regulate fracking through several federal statutes, including the Federal Land Policy and Management Act of 1976 and the Mineral Leasing Act of 1920. The court rejected this argument, holding that the broad federal statutes cited by the government did not authorize BLM to regulate fracking on federal lands. Further, the court held that Congress expressed its view that the federal government did not have the authority to regulate fracking when it removed the EPA's authority to regulate nondiesel fracking with the 2005 Energy Policy Act. The government and environmental groups appealed the decision within days of its release, and oral arguments were scheduled for March 22, 2017.

Given the recent change in administration, the...