by  Ellen M. Gilmer

A pumpjack bobs on public lands in Utah. A major regulation for the oil and gas industry is up for debate today in federal court.

WildEarth Guardians/Flickr An Obama-era rule for hydraulic fracturing on public and tribal lands finally heads to appellate court today after years of legal turmoil. The 10th U.S. Circuit Court of Appeals will hear oral arguments this morning over whether the Interior Department’s long-crippled fracking rule exceeds the agency’s authority.

The underlying legal question is weighty: Does the federal government have the power to regulate fracking at all?

Recent deregulatory efforts have given rise to another debate: Should the court weigh in on the authority issue if the Trump administration plans to scrap the regulation anyway?

It’s unclear whether the three-judge panel hearing the case will focus on the merits or the procedural questions, but lawyers from the federal government, states, industry, the Ute Indian Tribe and environmental groups are prepared to address both.

Here’s a recap of the legal issues at play: Federal authority over fracking

In June 2016, Wyoming District Judge Scott Skavdahl shocked the Obama administration and its allies with a sweeping ruling that the federal government does not have authority to regulate fracking. The decision embraced an argument from states challenging the regulation — Wyoming, Colorado, North Dakota and Utah — that two federal laws effectively removed fracking from U.S. government oversight.

The states argue that the Safe Drinking Water Act and the Energy Policy Act of 2005 remove most fracking applications from U.S. EPA oversight and that the exemption extends to other federal agencies, including Interior and its Bureau of Land Management.

Congress wanted to leave fracking oversight in the hands of state governments, the states say. The Independent Petroleum Association of America and the Western Energy Alliance, the two industry groups involved in the case, initially pushed separate procedural arguments against the fracking rule but have now largely adopted the states’ position.

“Characterizing this rule as an update of previous regulatory efforts is a misrepresentation,” said BakerHostetler attorney Mark Barron, who is representing the industry groups. “It’s attempted to regulate conduct it has not regulated in the past.”

The Obama administration quickly appealed the decision to the 10th Circuit last summer, calling the ruling “manifestly incorrect” and a misinterpretation of federal law. Government lawyers maintain that public lands laws like the Mineral Leasing Act and the Federal Lands Policy and Management Act give the government broad authority to regulate activities on public lands.

The Trump administration agrees, to some extent. In a supplemental brief in May, Justice Department lawyers representing Interior argued that the lower court’s decision was a “serious and consequential error.”

But the Trump administration is working to roll back the fracking rule and is asking the court to pause court proceedings while that process plays out (*Energywire*<https://www.eenews.net/energywire/stories/1060054178>, May 8).

It’s environmental groups that are expected to push the hardest on the merits arguments.

The Sierra Club, Earthworks and several other groups have been eager for their day in court since the fracking rule was first sidelined by the district court in 2015. An appeal over the lower court’s preliminary injunction of the rule was still pending when the court’s final decision came down last year.

“We’ve been seeking appellate review for nearly two years of Judge Skavdahl’s ruling, and we’re looking forward to having our day in court and getting appellate review of that decision,” said Earthjustice attorney Mike Freeman, who is representing the environmental intervenors.

Freezing the case

The environmental groups are alone in their desire for a core merits ruling from the 10th Circuit right now. Every other party to the litigation filed briefs this summer urging the judges to hold the case in abeyance.

That’s because the Trump administration is actively working to undo the regulation at the center of the case. Just this week, BLM published a formal proposal to rescind the fracking rule because it does not align with the president’s domestic energy priorities (*Greenwire* <https://www.eenews.net/greenwire/stories/1060057810>, July 24).

DOJ lawyers flagged the latest development in a court filing this week, noting that the proposed rollback “is consistent with the description that BLM has previously provided to the Court as a basis to hold this appeal in abeyance.”

The administration and opponents of the fracking rule want to table the legal debate over the regulation at least until the agency completes its new rulemaking process. “Given the issuance of the proposed rule this week, it makes more sense than ever to place the case in abeyance temporarily and let the regulatory process play out,” said Barron, the industry lawyer.

Rule supporters, meanwhile, maintain that a merits decision is necessary for BLM to move forward in the rulemaking process. “Even though BLM said it’s proposing to reconsider the rule, it’s still very much a live dispute, and we think the court should not stay the appeal but go forward and resolve this question,” Earthjustice’s Freeman said. “Whatever route BLM decides to take with this reconsideration process … it needs to know what it has the legal authority to do.”

David Hayes, the deputy secretary under Presidents Obama and Clinton who has joined friend-of-the-court filings supporting the fracking rule, said this week’s proposed rollback actually hurts the Trump administration’s arguments to pause the case. “It demonstrates that the fundamental question of authority, which the Department of Justice has admitted was incorrectly decided below, may never be decided, even though it’s fundamental to the agency’s mission, unless the 10th Circuit goes ahead and gets to the merits of the question,” he said.

Tribal issues

Fredericks Peebles & Morgan LLP attorney Jeffrey Rasmussen, representing the Ute Indian Tribe, might have the toughest job of the day. Amid all the legal wrangling over fracking authority and procedural questions, his goal is to persuade the court to consider a separate, narrower issue: Can BLM regulate tribal lands the same way it regulates public lands? He has six minutes to make his case.

The Utes have been pushing the issue since before the fracking rule was finalized. They and other tribes say BLM overstepped by having the fracking rule apply uniformly to public and tribal lands. Tribal lawyers have argued that BLM was created to manage public lands while the Bureau of Indian Affairs was charged with some oversight of tribal lands.

BIA sometimes adopts BLM rules for itself and delegates some enforcement authority back to BLM. For the fracking rule, tribal lawyers say BLM stretched that enforcement authority into a broader rulemaking authority that Congress never intended ( *Energywire* <https://www.eenews.net/energywire/stories/1060039994>, July 11, 2016).

In briefs this summer, the Utes supported the government’s request to put the case on hold. But Rasmussen plans to push the tribal law issues during arguments today and hopes the panel of judges is willing to take them up even as the Trump administration dismantles the fracking rule.

“Even though we’re not going to be complaining about the substance of the rule that they’re proposing, our position is still that they don’t have the authority to do it,” he said. “It’s not their job. It’s some other agency’s job to make rules. They at most can just apply them.”

Arguments are scheduled for 9 a.m. MDT today in Denver before Judges Jerome Holmes, Harris Hartz and Mary Beck Briscoe. Holmes and Hartz are George W. Bush appointees; Briscoe is a Clinton appointee. All three have mixed records in cases dealing with public lands and natural resources (*Energywire* <https://www.eenews.net/energywire/stories/1060051339>, March 13).