The Future of Fracking Regulation by the Bureau of Land Management

Grace Krasnerman

Hydraulic fracturing (“fracking”) accounts for approximately 51% of oil production and 67% of natural gas production in the United States.  The Energy Policy Act of 2005 (“EPAct”) generally excluded fracking from federal regulation under specified programs such as the Safe Drinking Water Act.  Recently, however, the Bureau of Land Management (“BLM”) issued new fracking regulations to maintain public health and environmental welfare for fracking on public and tribal lands.  Several Western states—the primary sites for fracking under BLM’s jurisdiction—filed suit against the Department of the Interior (“DOI”), asserting that BLM lacked the authority to regulate fracking.  In Wyoming v. U.S. Department of the Interior, Judge Scott Skavdahl of the District Court of Wyoming enjoined BLM from implementing the new regulations and affirmed the states’ contention that it was wholly in their authority to regulate fracking.  DOI is currently appealing this decision in the Tenth Circuit, and the pending decision holds enormous implications for the federal government’s ability to regulate the growing fracking industry under existing legislation.

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