On May 11, 2012, the BLM published a draft rule intended to “regulate hydraulic fracturing on public land and Indian land.” The BLM alleged the rule was necessary given public concern regarding HF. On September 10, 2012, PAW joined in comments by the Independent Petroleum Association of America (IPAA) and the Western Energy Alliance (WEA) opposing the rule.
On May 24, 2013, after receiving and allegedly reviewing comments, the BLM published supplemental proposed regulations. On August 22, 2013, PAW submitted comments, on behalf of itself and its members, urging the BLM to avoid duplication with Wyoming’s existing regulation of HF. PAW’s comments included technical responses to the BLM’s specific regulations, and expressed concern that federal regulation of hydraulic fracturing will lead to declines in oil and natural gas production on federal lands because the BLM lacks ample staffing, budget, and technical expertise. PAW explained that federal permitting delays will hurt Wyoming’s tax revenue and employment, increase the costs of energy, and increase reliance on imports.
On March 26, 2015, the BLM promulgated its final rule, after receiving over 1.5 million comments, advising that the rule would become effective on June 24, 2015. On March 20, 2015, IPAA and the WEA challenged the rule; on March 26, 2015, Wyoming filed its own petition. On September 30, 2015, the district court granted the petitioners’ motions for preliminary injunction, finding “[a]t this point, the Court does not believe Congress has granted or delegated to the BLM authority to regulate fracking.” Wyo. v. U.S. Dept. of the Interior, ___ F. Supp. 3d ___, 2015 WL 584514 at *22 (D. Wyo. Sept. 20, 2015).
On November 27, 2015, the environmental intervenors appealed the order granting the preliminary injunction to the U.S. Court of Appeals for the Tenth Circuit. On December 15, 2015, the BLM followed suit and filed its own appeal of the preliminary injunction. On January 20, 2016, the Tenth C
ircuit consolidated the appeals. On February 16, 2016, appellants filed their opening briefs. Meanwhile On March 4, 2016, petitioners filed their opening briefs on the merits at the Wyoming federal district court. On March 11, 2016, MSLF filed a motion to participate as amicus curiae and a proposed amicus curiae brief on behalf of the Petroleum Association of Wyoming. Unexpectedly, on March 15, 2016, the district court denied PAW’s motion to participate as amicus curiae.
On June 21, 2016, the Wyoming district court issued its final decision on the merits of the case, holding unlawful and setting aside the BLM’s hydraulic fracturing rules and ruling that the BLM lacks authority to regulate hydraulic fracturing. The district court’s final decision had the effect of mooting the pending appeal of the preliminary injunction. The BLM and the environmental intervenors immediately appealed the district court’s final decision.
On August 12, 2016, the BLM and the environmental intervenors filed their opening briefs. On September 16, 2016, the industry groups and Wyoming filed their response briefs. On September 23, 2016, MSLF filed an amicus curiae brief on behalf of PAW at the Tenth Circuit, defending the Wyoming district court’s final decision.
The Tenth Circuit scheduled oral argument for January 17, 2017; however, after the parties requested an enlargement of time for oral argument, the Tenth Circuit moved the argument to March 22, 2017. On March 9, 2017, the Tenth Circuit ordered the BLM to file a statement confirming its position on the issues in light of the change in administration. The BLM responded by filing a motion to continue the argument and hold the case in abeyance pending “a new rulemaking by BLM.” Environmental intervenors filed an opposition to the BLM’s motion and asked the Tenth Circuit to decide whether the agency has authority to manage oil and gas development on public lands. On March 17, 2017, the Tenth Circuit issued an order directing the BLM to file a supplemental brief addressing its new position regarding, among other matters, whether the Tenth Circuit should decide the appeal before any new regulations issue and whether the environmental intervenors would have standing at the Tenth Circuit if the BLM abandons its appeal. On May 16, 2017, the BLM filed its supplemental brief as directed by the Tenth Circuit. On June 5, 2017, supplemental briefs were filed by the industry groups, the states, and environmental intervenors. On July 27, 2017, the Tenth Circuit heard oral argument. On September 21, 2017, the Tenth Circuit dismissed the appeal and remanded the case with directions to vacate the Wyoming federal district court’s order and dismiss the case without prejudice.