By Amber Penn-Roco
On March 26, 2015, the Bureau of Land Management issued a final rule concerning hydraulic fracturing on federal and Indian lands, which was in turn challenged by the States of Wyoming, Colorado, North Dakota and Utah, as well as the Ute Indian Tribe of the Uintah and Ouray Reservation.
The final rule was supposed to take effect on June 24, 2015. However, Petitioners requested, and obtained, a preliminary injunction, enjoining the BLM from applying the rule, pending the resolution of the litigation.
The Ute Tribe described the final rule as “a throwback to the old paternalistic policies of the federal government that completely disregard tribal interests.” The Ute Tribe believes that:
Tribes must be given an opportunity to regulate hydraulic fracturing on tribal lands in accordance with our own tribal policies and priorities” and that tribes are the proper stewards of reservations “because this is our homeland, and we live and work on these lands.
Overall, the Ute Tribe believes that the final rule “[i]nfring[es] upon tribal sovereignty and [by] placing significant roadblocks to the development of tribal minerals[, this] will undermine the federal trust responsibility and serve to limit economic development opportunities for the Ute Indian Tribe.”
This week, the U.S. District Court granted the Petitioners request for a preliminary injunction. According to the Court, the “fundamental question presented in this case is whether Congress granted or delegated to the BLM the authority or jurisdiction to regulate fracking.” The Court fond: “At this point, the Court does not believe Congress has granted or delegated to the BLM authority to regulate fracking.” This was especially true where:
Congress expressly . . . remove[d] from the EPA the authority to regulate any non-diesel fracking on federal or state lands. It is hard to analytically conclude or infer that having expressly removed the regulatory authority from the EPA, Congress intended to vest it in the BLM, particularly where the BLM had not previously been regulating the practice.
The challenge to the final rule has come under some criticism. In a case of extremely strange bedfellows, many environmental groups, including the Sierra Club, have intervened in the litigation in defense of the rule.
In response to the Court’s preliminary injunction, Sierra Club Executive Director Michael Brune stated: “While these regulations didn't go far enough to protect public health, they were a first and necessary step in reining in the dirty and dangerous oil and gas industry, and would begin to hold them accountable for the pollution they cause . . . Fracking needs more regulation, not less.”
That remains to be seen but tribal sovereignty shouldn't be overlooked in the fracking conversation.
Amber Penn-Roco’s practice focuses on tribal sovereignty issues, including environmental issues, economic development, and complex Indian Country litigation. Her experience also includes work on transactional matters, including entity formation, environmental compliance and permitting. She is an enrolled member of the Chehalis Tribe.