Today a Wyoming Federal District Judge halted the BLM’s proposed rule governing fracking on federal lands (including Indian lands). The basis of the opinion was a determination that the 2005 Energy Policy Act which explicitly withdrew authority from the EPA to regulate hydraulic fracturing under the Safe Drinking Water Act, mean that Congress has expressly “spoken on the issue of not regulating fracking.” It is clear that the opinion will be appealed to the 10th Circuit, and my own opinion is that the District Judge misinterprets the specific effect of the SDWA language in the 2005 Energy Policy Act.
It is true, as the Judge points out, that the 2005 Energy Policy Act unambiguously stops the EPA from regulating fracking under its SDWA authority. But under statutory interpretation rules, a limitation on the EPA to regulate fracking generally, does not mean that the BLM can not impose regulations on fracking on public lands.
In multiple statutes, Congress has granted the BLM authority to regulate public lands for “public welfare” (under the Mineral Leasing Act) and for multiple uses, including environmental protection, under the Federal Lands Planning and Management Act. Nothing in the 2005 Energy Policy Act repealed this authority. It is not inconsistent to prohibit the EPA from regulating fracking generally under a statute that was not designed for the operation, and still leaving the BLM authority to manage any activities that could affect groundwater on public lands (which may have other uses than direct drinking water for humans).
While I express no opinion on the wisdom of the BLM’s proposed rule or whether it provides needed environmental protection, I believe that they have the authority to regulate the activity on public lands. Whether they should is another question.