Obama’s Fracking Comeuppance

A judge he appointed rebukes an anti-drilling regulation as lawless.

Another day, another judicial rebuke to President Obama’s contempt for the rule of law. On Wednesday a federal judge struck down an oil and gas drilling rule imposed with no statutory authority.

In 2015 the Bureau of Land Management published new regulations about well construction and water management for hydraulic fracturing, or fracking, that takes place on federal and Indian lands. The BLM asserted “broad authority” to control oil and gas operations on the basis of laws that were passed in 1920, 1930, 1938, 1976 and 1982 and were allegedly ambiguous. Thus the agency said it deserved the benefit of the interpretive doubt that the courts call Chevron deference.

Abusing Chevron is an Obama specialty. But BLM’s overreach was notably egregious because Congress passed an energy law in 2005 that stripped the executive branch of fracking jurisdiction and gave that power to the states.

The BLM argued that Congress’s choice didn’t matter because the bureau wasn’t mentioned by name in the 2005 law. That claim inspired Judge Scott Skavdahl of Wyoming—an Obama appointee—to conduct a remedial seminar in the Constitution’s separation of powers.

Under the BLM argument, Judge Skavdahl writes, “there would be no limit to the scope or extent of congressionally delegated authority BLM has. . . . Having explicitly removed the only source of specific federal agency authority over fracking, it defies common sense for the BLM to argue that Congress intended to allow it to regulate the same activity under a general statute that says nothing about hydraulic fracturing.”

Judge Skavdahl also rebukes the administrative agencies that “increasingly” rely “on Chevron deference to stretch the outer limits of ‘delegated’ statutory authority by revising and reshaping legislation.” He reminds that agencies derive their “existence, authority and powers from Congress alone,” and that Congress’s “inability or unwillingness to pass a law desired by the executive branch does not default authority to the executive branch to act independently.”

A President who rewrites inconvenient laws ought to alarm Americans of all political persuasions. Principled decisions like Judge Skavdahl’s help restore the constitutional norms that Mr. Obama has done so much to dismantle.

WSJ Opinion article dated June 22 2016



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