Federal Lands, Federal Authority: The Case for Federal Regulation of Fracking on Public Lands

Hydraulic fracturing, or “fracking,” continues to grow rapidly as an oil and gas extraction method in the United States, and its growth has recently led to the emergence of natural gas as the nation’s new leading energy source for power generation. However, the hydraulic fracturing process carries innumerable environmental and health-related concerns, and federal regulations to address these concerns have struggled to keep up with the blistering pace of fracking’s growth and development within the United States.In 2015, the Bureau of Land Management (BLM), under the Obama administration, promulgated a rule to ‘complement’ its regulations with respect to hydraulic fracturing on federal and Indian lands, citing the Mineral Leasing Act (MLA) and Federal Land Policy and Management Act (FLPMA) as sources of statutory authority. This 2015 Fracking Rule faced intense opposition, first from industry and state parties within the federal court system, and later from the BLM itself under a newly-elected President Trump. This Note argues that the Bureau of Land Management has the statutory authority to regulate hydraulic fracturing on federal public lands under the MLA and FLPMA, by cause of the plain language, general history, and reasonable agency interpretation of these statutes. This Note further supports BLM’s authority to regulate hydraulic fracturing with justifications related to both natural resource protection and the effectiveness of federal-level regulation. Legal battles over BLM’s authority are ongoing, and the question of whether or not BLM has statutory authority to regulate fracking on federal public lands remains critical as the nation continues to struggle in deciding how to best utilize our commonly-shared lands and resources. Additionally, it will be increasingly important to continue developing and updating federal hydraulic fracturing regulations in order to increase our understanding of this extraction method, while hopefully mitigating its associated environmental and health risks