Wednesday, June 22, 2016

Federal Court Strikes Down BLM Fracturing Rule

In the latest rebuke of the Obama administration’s expansive view of executive power, a federal judge has struck down the Interior Department’s effort to regulate fracking for oil and natural gas. Judge Scott Skavdahl of the District Court of Wyoming already had put a hold on the regulations last year, and in a decision released late Tuesday, he ruled that Congress did not give Interior the power to regulate hydraulic fracturing, indeed it had expressly withheld that power with some narrow exceptions. “Congress has not delegated to the Department of Interior the authority to regulate hydraulic fracturing,” Judge Skavdahl wrote in deciding a lawsuit brought by industry groups and a number of Western states. The “effort to do so through the Fracking Rule is in excess of its statutory authority and contrary to law.” The judge dismissed particularly the claim by the Interior Department and its Bureau of Land Management that it had inherent broad regulatory authority to pursue the public good on federal and Indian lands, the only place the regulations would have applied. “Congress‘ inability or unwillingness to pass a law desired by the executive branch does not default authority to the executive branch to act independently, regardless of whether hydraulic fracturing is good or bad for the environment or the citizens of the United States,” wrote Judge Skavdahl, whom Mr. Obama appointed to the bench in 2011.  Washington Times

 What refreshing language to come from the pen of a federal judge.  Just savor the following:

[The Supreme] Court consistently has given voice to, and has reaffirmed, the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty.

A federal agency is a creature of statute and derives its existence, authority and powers from Congress alone. It has no constitutional or common law existence or authority outside that expressly conveyed to it by Congress.

Although the Secretary asserts FLPMA delegates to BLM broad authority and discretion to manage and regulate activities on public lands, nothing in FLPMA provides BLM with specific authority to regulate hydraulic fracturing or underground injections of any kind; rather, FLPMA primarily establishes congressional policy that the Secretary manage the public lands under principles of multiple use and sustained yield. ...At its core, FLPMA is a land use planning statute. administrative agency's power to regulate in the public interest must always be grounded in a valid grant of authority from Congress.

...the Court holds the Fracking Rule is unlawful, and it is ORDERED that the BLM's final rule related to hydraulic fracturing on federal and Indian lands, 80 Fed. Reg. 16,128 (Mar. 26, 2015), is hereby SET ASIDE.

The above is from a judge appointed by Obama!  Astonishing.

And given the court's differentiation of planning and regulating, one must wonder what other programs this may affect.


Anonymous said...

I read a copy of the decision yesterday and my reaction was pretty much the same as yours. It is one of the best written, most coherent decisions I have read on the subject in a long while. My colleagues reacted in shock and lamented the environmental damage would in their minds most certainly follow. I was especially impressed with the judge's approach of whether or not this is a good idea is not my decision, it is a matter of does the action exceed the discretion granted to it by Congress. Good to know that separation of powers is not totally a dead concept.

Bill said...

I was beginning to think that separation of powers was only something recalled by a dying breed. But by a Federal Judge and he used it.
Really refreshing to me too.