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Appeals court sidesteps decision on federal fracking regulations

| Thursday, Sept. 21, 2017, 8:18 p.m.
A natural gas drilling site in the Susquehanna County township of New Milford.
A natural gas drilling site in the Susquehanna County township of New Milford.

DENVER — A federal appeals court on Thursday sidestepped a decision on whether oil and gas regulations enacted by the Obama administration are legal, noting that the current administration plans to rescind them.

The 10th U.S. Circuit Court of Appeals in Denver said it would be a waste of time to rule on the regulations, which govern hydraulic fracturing on federal lands, because the Trump administration has already begun the process of revoking them.

The ruling left the status of the regulations unclear, and neither the federal Bureau of Land Management nor its parent agency, the Interior Department, immediately responded to phone calls and emails seeking comment.

Both environmental and industry groups claimed victory.

Mike Freeman, an attorney who represents environmentalists in the case, said the regulations are in force until the Trump administration formally revokes them, and that could take months and get tied up in court.

“Remember, it took the agency nearly five years to develop the rules the first time,” he said.

Kathleen Sgamma, president of the Western Energy Alliance, an industry advocate, noted that the regulations have never been in force because a lower court blocked them before they took effect.

She said the Trump administration won't enforce regulations it plans to undo.

“I don't see a scenario where the government and the industry waste resources on a rule that is going to fundamentally change in the very near future,” she said.

The Bureau of Land Management enacted the regulations in 2015, requiring drilling companies to disclose what chemicals they used within 30 days of any hydraulic fracturing on land owned or managed by the federal government.

Hydraulic fracturing, or fracking, is a widely used drilling technique that boosts hydrocarbon production by injecting a high-pressure mix of water, sand and chemicals underground to break open oil and gas formations.

Opponents say the chemicals are a threat to public health and the environment, and that increased oil and gas production makes global warming worse by increasing energy consumption. The industry says the technique is safe.

A federal judge in Wyoming first delayed the regulations from taking effect and then overturned them last year, ruling the government had no authority to impose them. The Obama administration — which was still in office — and environmentalists appealed to the 10th Circuit.

Before the appeals court could rule, the Trump administration took office and announced it would revoke the regulations. That process is underway but not yet complete.

The 10th Circuit, citing the uncertain future of the regulations, dismissed the appeals but also reversed the Wyoming judge's decision that overturned the regulations in the first place, leading to confusion about whether the regulations are in force.

Wyoming Gov. Matt Mead, whose state challenged the original regulations, said Wyoming officials are reviewing the appeals court decision to figure out what the effects are.

“I appreciate the difficult situation the 10th Circuit Court was in with this rule that the Trump administration is working to rescind,” Mead said in a written statement.

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