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Calls for Hydraulic Fracturing Ban on Shaky Legal Ground

The primary process for the 2020 Presidential Election has prompted public discussion about whether a President may unilaterally end hydraulic fracturing on federal lands.  Virtually all new oil and gas wells in the United States are drilled and completed using hydraulic fracturing.  A “ban” like this would have dramatic economic consequences.  Serious legal questions, including about the constitutional limits of presidential powers, cast doubt on the validity of such a hypothetical ban.

Presidents may address a range of environmental and other concerns associated with energy production on federal lands, but this power is generally exercised through federal regulations adopted consistent with the procedural requirements of the Administrative Procedure Act (APA) and the substantive requirements of particular statutes. Based on existing law and precedents, a presidential order or agency regulation banning hydraulic fracturing on federal lands would face grave challenges when subjected to judicial review. 

Presidential Powers

The head of one of the three coequal branches, the President has robust powers set forth in Article II of the U.S. Constitution. These include, among others, significant powers in the area of foreign affairs and national security as well as the responsibility to direct the work of Executive Branch officials to “take care that the laws be faithfully executed.” Additionally, federal statutes empower the President to manage and protect public lands and resources in a manner consistent with law. For example, the Antiquities Act authorizes the President to protect historically and culturally significant areas of federal lands—a power limited by statute to “the smallest area compatible with the proper care and management of the objects to be protected.”  And other comprehensive statutes, such as the Federal Land Policy and Management Act (FLPMA), authorize federal agencies to manage the federal estate for multiple uses including, among others, conservation, recreation, timber, and energy production. Drilling leases on federal lands are governed by the Mineral Leasing Act, Federal Onshore Oil and Gas Leasing Reform Act, and other related laws and regulations.

Presidents routinely use “executive orders” to take direct action pursuant to their constitutional powers or, at least as often, to direct an Executive Branch agency in some specific way.  There is no constitutional or statutory definition of “executive order,” but an executive order is virtually any written directive by the President that requires, without further congressional action, some particular course of action. Often, these orders carry the force of law when based on valid authority.  Presumably, those calling for hydraulic fracturing bans on federal lands envision the aggressive use of executive orders. 

Prior Efforts to Restrict Energy Production

Executive Branch attempts to restrict oil and gas drilling are not new.  Previous federal prohibitions against oil and gas drilling and hydraulic fracturing regulations, and the resulting litigation, give historical context for any future legal challenges arising from a potential widespread ban on hydraulic fracturing (or even all drilling)—whether via executive order or regulatory actions.  For example, in response to the Deepwater Horizon incident, in May 2010, the Obama Administration issued an order imposing a six-month moratorium halting all offshore exploratory drilling in depths of more than five hundred feet of water.  A group of plaintiffs consisting largely of offshore service companies sued, challenging the moratorium.  A few weeks later, a federal judge in Louisiana preliminarily enjoined enforcement of the moratorium, finding that the blanket ban on all deepwater drilling likely was “arbitrary and capricious”—and thus was likely invalid under the APA and the Outer Continental Shelf Land Act (OCSLA) and its implementing regulations.  Hornbeck Offshore Services L.L.C. v. Salazar, 696 F. Supp. 2d 627, 630 (E.D. La. 2010).  In particular, the court criticized the vast breadth of the moratorium as insufficiently tethered to the underlying facts the government cited to justify it.  The government then issued a second, revised moratorium in an attempt to cure the defects of the first moratorium, but decided to lift the second moratorium several weeks before it was set to expire—before any court had ruled on its validity. 

Separate from direct presidential action to try to ban hydraulic fracturing, a President could direct federal agencies to use regulatory powers under various statutes to impose such a ban. Contrary to some campaign rhetoric, however, executive orders typically direct agencies to take action in a manner “consistent with law,” given that the resulting agency actions are subject to judicial review. No existing federal law expressly authorizes such a ban, so the requirements of the APA would likely forbid any agency from imposing such a unilateral ban in the first instance.

Recent efforts to regulate hydraulic fracturing on federal lands provide some useful insight into this larger issue. In March 2015, almost three years after an initial rule was proposed, the Bureau of Land Management (BLM) issued the final version of its regulations applying to hydraulic fracturing on federal and Native American lands. The new regulations were onerous and greatly impaired lessees’ ability to extract minerals efficiently from federal lands. Several states and industry organizations sued, challenging the substance of the rule and BLM’s authority to issue it.  The U.S. District Court for the District of Wyoming enjoined the rule and set it aside as unlawful.  Wyoming v. United States Dep’t of the Interior, 136 F. Supp. 3d 1317 (D. Wyo. 2015).

The Wyoming federal district court expressed doubt “that Congress has granted or delegated to the BLM authority to regulate fracking” at all, and even if it did have the authority to issue regulations on hydraulic fracturing, the “BLM ha[d] neither substantiated the existence of a problem this rule is meant to address, identified a gap in existing regulations the final rule will fill, nor described how the final rule will achieve its stated objectives.”  Id. at 1352, 1332.  The court found that the preliminary injunction was necessary to avoid irreparable harm to plaintiffs in the form of infringement on the states’ sovereign authority and interests in administering their own regulatory programs governing drilling.  While the appeal was pending, President Trump issued an executive order in his first month in office requiring the Department of the Interior (DOI) to review its regulations for consistency with policies of the new Administration.  DOI proposed rescinding the rule soon thereafter, and as a result the appeal was dismissed as “prudentially unripe.” (Efforts by the Trump Administration to fully rescind the Obama Administration’s hydraulic fracturing requirements remain in litigation.)

In both these previous attempts by the federal government to restrict drilling in federally-controlled areas, affected parties mounted swift lawsuits challenging the government’s authority and its adherence to procedural requirements.  In each case, the federal government ultimately changed course, precluding any final rulings on the merits of the action. 

No Legal Basis for Hydraulic Fracturing Bans

There is no express constitutional or statutory basis for a President to take actions like banning hydraulic fracturing. Interpreting existing environmental or federal land-management statutes, or emergency provisions, to imply such broad authority likely would be found to be an unlawful use of executive power.   

If the Executive Branch unilaterally tried to impose a “ban” on hydraulic fracturing across federal lands, affected states and other parties again would likely file lawsuits arguing that there is no federal statutory or constitutional authority to unilaterally impose such a ban—and that such action at a minimum would require new legislation.  Further, depending on the nature and scope of a ban plus the quality of the factual or technical evidence used to support it, aggrieved parties likely will contend that it is arbitrary and capricious in violation of the APA.  Each of these arguments has seen success in the past, and the government will have an uphill battle to defend any such action.

Another likely issue will be whether a President could use “emergency powers” to impose a ban on hydraulic fracturing. When encountering such situations, the federal courts often note that presidential actions are most likely to be upheld when “[t]he President acts pursuant to an express or implied authorization of Congress” and least likely to be upheld “[w]hen the President takes measures incompatible with the expressed or implied will of Congress.”  Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J. concurring); Medellin v. Texas, 552 U.S. 491, 525 (2008).  When Congress has been “silent” on an issue, review of presidential action is more complex and requires case-by-case review of the constitutional equities at stake. Here, a presidential ban on hydraulic fracturing across all federal lands—even if based on emergency powers—is likely to be set aside, especially given (a) the lack of any express or implied authorization for such action by Congress, and (b) the incompatibility of such a broad prohibition with federal statutes promoting energy production on federal lands.

Finally, it is possible that such an executive order could be less sweeping and immediate than politically advertised. It could instead instruct federal agencies to undertake rulemaking or otherwise implement certain narrower policies than an outright ban.  Accordingly, federal action could be in the form of new regulations or sub-regulatory guidance by agencies.  However, to lawfully promulgate regulations, agencies generally must follow the rigorous process laid out in the APA, including typically lengthy notice-and-comment periods.  Therefore, barring invocation of emergency exceptions, it could take months or even years after new regulations have been proposed before they would take effect.  Even then, such regulations may be subject to further legal challenges. Regulations must be consistent with the agencies’ statutory authorities and avoid committing any other legal error, and an agency is not permitted to change course from the status quo without reasoned explanation.

In sum, though the possibility of a hydraulic fracturing ban has been contemplated lately in public discourse, the Executive Branch’s power to enact such a ban is not unlimited.  In fact, there are strong legal arguments that this type of action is wholly beyond the President’s authority and would be struck down as unlawful.  Should a President attempt to circumvent this problem by having agencies issue regulations prohibiting hydraulic fracturing, those regulations would require, at minimum, extensive factual support to survive a challenge that they are impermissibly arbitrary and capricious under the APA.  Ultimately, though the government may try to shut down hydraulic fracturing, plaintiffs challenging the action likely have the law on their side to temporarily and permanently enjoin enactment of the ban.

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