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Does the President Have the Authority to Ban Fracking?

Photo 118540536 © Anton Foltin - Dreamstime

Several Democratic presidential candidates are campaigning on promises to ban fracking on federal lands, or on some more extreme platforms – from Sens. Elizabeth Warren, Bernie Sanders and Kamala Harris – place a ban on all fracking in the United States including on private property. World leaders have advised against a U.S. ban for a multitude of reasons, including the disastrous impact it could have on the economy. But does a president actually have the authority to fulfill this campaign promise?

In short, the answer is “no.”

As CNN recently explained:

“Without an act of Congress, the president could not issue an outright ban on fracking across the United States.”

And Forbes contributor Robert Rapier called those proposing an immediate ban “either pandering or naïve.”

Congress Works to Reaffirm States’ Rights

In recent weeks, there has been an effort on Capitol Hill to reaffirm the need for an act of Congress to issue such a far-reaching ban.

House Republicans introduced a resolution, H656, to affirm that states would “maintain primacy for the regulation of hydraulic fracturing for oil and natural gas production on state and private lands,” and that no president could issue a moratorium on hydraulic fracturing without congressional approval. House Democrats quickly blocked the vote.

During the floor debate, Rep. Debbie Lesko (R-Ariz.) spoke on the importance of the House considering the resolution:

“In recent weeks, many of the Democratic candidates for president have pledged to ban hydraulic fracturing in the United States… While this widely used practice is often vilified by extreme environmentalists and proponents of the Green New Deal, in fact, hydraulic fracturing is heavily regulated by the states and governed by stringent industry standards…”

In the Senate, Sen. Pat Toomey (R-Pa.) introduced his version of the resolution, S411:

“What I’m trying to do is put a spotlight and encourage senators and House members to underscore that the president does not have the legal authority to do this and that would then contribute to forming the basis for a very, very aggressive pushback if a future president were to attempt to exercise powers that he or she doesn’t legally have.”

States Have Authority to Regulate Fracking

State governments frequently revise their regulations on oil and natural gas production, but the attempts to revert to a one-size-fits-all approach from the federal government are on the rise. Regulations out of Washington that attempt to regulate oil and natural gas production through the Bureau of Land Management and the Environmental Protection Agency ignore the complexities inherent to America’s diverse regions and their needs.

David Spence of the University of Texas School of Law argued in the Wall Street Journal that states are best positioned to design and implement regulatory systems that are well-tailored to local needs and conditions:

“Different rules for different states are necessary to match the local geography—for example, drillers may use different drilling specifications or wastewater-disposal methods, depending upon the location.”

The Obama administration’s climate approach focused on tighter regulation of hydraulic fracturing on federal land, but every attempt faced multiple legal challenges. In 2016, U.S. District Judge Scott Skadvahl ruled that the BLM lacked the authority and approval from Congress to issue regulations over hydraulic fracturing. He also noted that fracking has already been regulated by industry standards, state and federal law.

“’The issue before this Court is not whether hydraulic fracturing is good or bad for the environment or the citizens of the United States,’ he wrote. The question, instead, is ‘whether Congress has delegated to the Department of Interior legal authority to regulate hydraulic fracturing. It has not.'”

The judge agreed with the four states – Colorado, North Dakota, Utah and Wyoming – as well as the Ute Indian Tribe of the Uintah and Ouray and industry groups that challenged the rule as an overstep of agency authority. In his opinion, Skadvahl noted that because Congress, at one point, had already taken federal authority to oversee hydraulic fracturing away from EPA, lawmakers “weren’t intending for another federal agency to step in and take on a similar role.” The referred case is the Energy Policy Act of 2005, which was passed by Congress with bipartisan support and exempted fracking from activities that the EPA could regulate.

“The BLM has attempted an end-run around the 2005 EP Act; however, regulation of an activity must be by Congressional authority, not administrative fiat. The Court finds the intent of Congress is clear, so that is the end of the matter.”

Western Energy Alliance’s Kathleen Sgamma said:

“The United States has experienced a regulatory onslaught from an administration that acts as if it is not bound by the limits of the law. The regulatory overreach has cost hundreds of thousands of jobs and prevented considerable economic growth.”

The BLM overreach was not the first time that the Obama administration attempted to impose a blanket ban on oil and natural gas production. In 2010, a New Orleans federal judge overturned Obama’s radical moratorium on deepwater drilling in the Gulf of Mexico. In his ruling, Judge Martin Feldman cited false claims by the administration and violations of the Administrative Procedure Act (APC), “which protects against arbitrary government actions.” Under the APC, federal agencies are required to provide clear reasonings for their policy decisions and allow the public an opportunity to weigh in when they are proposing new regulations, making notable changes or removing them altogether. According to Judge Feldman’s ruling:

“In the Executive Summary to the Report, the Secretary [Salazar] recommends ’a six-month moratorium on permits for new wells being drilled . . .’ Much to the government’s discomfort and this Court’s uneasiness, the Summary also states that ’the recommendations contained in this report have been peer-reviewed by seven experts‘. . .the experts themselves, pointedly observe, this statement was misleading. The experts charge it was a “misrepresentation.’ It was factually incorrect.  . . five of the National Academy experts and three of the other experts have publicly stated that they ‘do not agree with the six month blanket moratorium‘ on floating drilling.”

Federal Lands

According to the Mineral Leasing Act, oil and natural gas on public lands are developed by leasing. The BLM is the primary administrator of the act and oversees “nearly 250 million surface acres and 700 million subsurface acres, located in 12 western states, including Alaska.” BLM manages commercial energy and mineral resources on public and federal lands. BLM’s rights are further highlighted in the Federal Land Policy and Management Act, which clearly states that it is “responsible for leasing federal oil and gas and geothermal energy resources, and for supervising the exploration, development, and production operations of these resources on both federal and Indian lands.”

Both acts indicate that without congressional consent, no laws or policies could be imposed on energy production on federal lands. BLM has the authority over federal and public lands leasing, and proposed regulations by any branches of government would be considered an overreach.

Scaling Back Production Doesn’t Scale Back Demand

Major U.S. energy companies have responded to the presidential candidates’ pledges saying that if a new administration cracks down on federal land leasing, they have the flexibility to develop these resources in other places. Such a move could raise prices significantly for producers and consumers because a ban would not remove demand for natural gas.

“If anything, it will shift the economic benefit away from the U.S. to another country, and potentially impact the price of that commodity here and globally,” said Exxon Vice President Neil Hansen.

The U.S. Bureau of Economic Analysis reported that the oil and natural gas industry alone contributed $218.8 billion to the economy in 2018. The shale revolution has also had a significant impact on U.S. consumers. American families are saving a combined $203 billion annually in electricity costs thanks to increased natural gas and oil production, according to a recent White House Council of Economic Advisors report.

As Professor James Coleman of Southern Methodist University said,

“No country in the world has ever abandoned a natural resource of this proven value.”

Conclusion

The fact is, many Democratic candidates are currently campaigning on pledges that they would have no authority to enact as president. Their advocacy for impossible-to-keep promises to halt an industry that has bolstered U.S. energy security and the economy while helping the United States to lead the world in emissions reductions shows how out-of-touch with Americans they have become.

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