We've gotten used to the Obama administration's using regulations to re-write the law.
But the administration's lawless attempt to kill fracking by regulation was so far-fetched that it earned a rebuke from a judge who was appointed by President Obama.
The Wall Street Journal notes that Judge Scott Skavdahl of Wyoming was moved to conduct "a remedial seminar in the Constitution’s separation of powers" for the benefit of an overreaching executive.
It seems that in 2015 the Bureau of Land Management came out with new regulations on fracking on federal and Indian lands. The BLM based this move on “broad authority” over oil and gas that it claimed was conferred by laws dating from 1920, 1930, 1938, 1976 and 1982 that the BLM said were ambiguous.
The BLM said that it had the right to interpret these laws under something called the Chevron deference. But Congress had removed jurisdiction for fracking from the executive branch and given it to the states in 2005. Never mind, said the BLM, we weren't mentioned by name in the law. The Obama appointee did not buy this logic:
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.”
Once the executive branch appropriates powers that the Founders didn't give it, turning back the tide may not be so easy. So we owe Judge Skavdahl a heartfelt thanks for this decision.