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In appeal of US fracking ruling, arguments center on precedent

Washington — A recent judge's decision that overturned Obama administration rules on hydraulic fracturing on federal and Indian lands ignores more than a century of regulatory precedent, an attorney appealing that decision said Monday.

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"The decision ignores decades of case law," said Mike Freeman, a Colorado-based attorney with Earthjustice. "We respectfully think that the judge got it flat wrong."

On Friday, Earthjustice, along with the Sierra Club, filed opening briefs with the 10th US Circuit Court of Appeals in an appeal case that may ultimately determine whether the federal government can regulate fracking.

The US Department of the Interior also filed briefs arguing that a century of legal precedent and federal regulations allow the agency's Bureau of Land Management to regulate fracking.

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"BLM has the authority to oversee resource extraction on federal and Indian leases, including well-stimulation activities, to protect natural resources and the environment," Interior wrote. "BLM and its predecessors have been doing so for nearly 100 years, and modern hydraulic fracturing operations simply are a new version of historically regulated well stimulation techniques."

In March 2015, BLM finalized new rules that included new chemical disclosure, well construction, and fluid disposal requirements for fracking operations on federal and Indian land. Production on those lands currently accounts for about 5% of total US oil supply, according to the US Energy Information Administration.

Industry groups, including the Western Energy Alliance, and states, including North Dakota and Wyoming, successfully sued to have the rules overturned.

In June, US District Court of Wyoming Judge Scott Skavdahl ruled that Interior's fracking rule was "in excess of its statutory authority and contrary to law."

In his decision, Skavdahl wrote that his decision did not deal with whether fracking is "good or bad for the environment," just whether Interior had authority to regulate the practice.

Freeman with Earthjustice called Skavdahl's ruling a "legal error," and claimed that BLM was simply updating its regulations for the first time in roughly 30 years.

"These aren't radical requests," Freeman said. "Most of the requirements are industry best management practices."

Freeman said that answers from petitioners in the case to the briefs filed last week, including responses from the states and industry groups fighting the rules from taking place, are due by September 16. Replies to those answers are due October 7 and, Freeman said, he expects oral arguments in the case will begin before the end of the year.

The appeal could be decided in early 2017.

--Brian Scheid,

--Edited by Annie Siebert,