The Trump administration’s repeal of Obama administration regulations on hydraulic fracturing was cleared by a federal court Mar. 27 in a ruling that stressed methodical adherence to procedural requirements.
Judge Haywood Gilliam, nominated to the federal bench by President Obama in 2014, concluded that the Bureau of Land Management (BLM) had clearly explained its reasoning on why it chose to repeal the regulations, had exercised appropriate authority in a cost-benefit analysis, and had clearly articulated its assessment of the environmental consequences and implications for endangered species.
The opinion meant that—pending possible appeals—BLM had cleared the procedural hurdles of the Administrative Procedure Act, the National Environmental Policy Act, and the Endangered Species Act.
“I thought it was a disciplined application of administrative law,” said Mark Barron, a partner in law firm Baker Hostetler LLP. He participated in the case as an attorney on behalf of the Independent Petroleum Association of America and the Western Energy Alliance.
Barron stressed the organized way in which the opinion was written, with citations to points of evidence in the record for each of the legal arguments at issue.
“I think the structure of the opinion will hold up on appeal,” Barron said.
The decision came in a pair of consolidated cases, California v. US Bureau of Land Management and Sierra Club v. Zinke, argued in the US District Court for the Northern District of California.
Question of adequate explanation
Many legal challenges to regulatory decisions hinge on arguments that procedural steps were shortchanged rather than whether the outcomes will be better or worse for people or the environment. Gilliam emphasized that in his opinion.
“The Court’s task is not to decide whether the changes the Federal Defendants seek to make will result in better or worse environmental policy,” the judge wrote.
“Instead, the narrow question for the Court is whether the admitted policy change represented by the Repeal was so inadequately explained as to be arbitrary and capricious,” he wrote.
The “arbitrary and capricious” phrase comes from the Administrative Procedure Act, a law designed to prevent regulators from neglecting their legal obligations.
“Having reviewed the record in light of these principles, the Court finds that BLM adequately articulated a reasoned explanation for its change in position regarding the sufficiency of BLM’s preexisting regulations and state and tribal regulations for hydraulic fracturing,” the judge wrote.
Gilliam was referring to more than the big picture of policy change. “BLM provided requirement-by-requirement explanations for the removal of the 2015 Rule requirements,” he wrote.
States regulate fracturing
Variations in state and tribal regulations were cited by the Obama administration in promulgating its 2015 regulations on hydraulic fracturing. The argument did not work in an earlier case and has not worked in the latest case.
The argument for uniform nationwide regulations was rejected by Judge Scott Skavdahl of the US District Court for Wyoming when he ruled in a lawsuit by the state of Wyoming against the Obama administration’s fracturing regulations. Skavdahl, too, was an Obama nominee to the federal bench.
Gilliam noted that more states have issued regulations fracturing since the 2015 federal rulemaking. The additional regulatory regimes may vary, but, like Skavdahl, Gilliam did not appear to be troubled by that. The law “does not require BLM to attest that the additional state and tribal regulations completely fill the exact same regulatory gaps as would the 2015 rule,” Gilliam wrote.
Skavdahl vacated the 2015 regulations, but the Tenth Circuit Court of Appeals vacated his ruling in 2017 because the Trump administration was preparing to rescind the 2015 rulemaking, a step that led the appellate court to hit the pause button—not allowing the 2015 regulations to go into effect but not allowing the district court to overturn those rules, either.
The Trump administration in December 2017 published its final rule rescinding the 2015 rule.
The Sierra Club, asked whether it would appeal Gilliam’s decision, has said only that it is reviewing the decision.
