Wyoming v. United States Department of the Interior (136 F. Supp. 3d 1317, 2015)

United States District Court for the District of Wyoming 2015-09-30

Indians Mineral Lands and Mining Public Lands

Citations

Full opinion text

ORDER ON MOTIONS FOR PRELIMINARY INJUNCTION

Scott W. Skavdahl, United States District Judge

This matter comes before the Court on the motions for preliminary injunction filed by the various Petitioners and Intervenor-Petitioners: Motion for Preliminary Injunction of Petitioners Independent Petroleum Association of America (“IPAÁ”) and Western Energy Alliance (“Alliance”) (hereinafter “Industry Petitioners”) (ECF No. 11 in 15-CV041); Wyoming and Colorado’s Motion for Preliminary Injunction (ECF No. 32), in which the State of Utah has joined; North Dakota’s Motion for Preliminary Injunction (ECF No. 52), in which the State of Utah has joined; and Motion for Preliminary Injunction filed by the Ute Indian Tribe (ECF No. 89). The Court, having considered the briefs and materials submitted in support of the motions and the oppositions thereto, including the Administrative Record, having heard witness testimony and o,ral argument of counsel, and being otherwise fully advised, FINDS and ORDERS as follows:

Background

On March 26, 201.5, the Bureau, of Land Management (“BLM”) issued, the final version of its regulations applying to hydraulic fracturing on federal and Indian lands. 80 Fed.Reg. 16,128-16,222 (Mar. 26, 2015) (“Fracking Rule”). The Fracking Rule’s focus is on three aspects of oil and gas development — ^wellbore construction, chemical disclosures, and water management (id,' at 16,128 & 16,129) — each of which is subject to comprehensive regulations under existing federal and state law. The rule was scheduled to take effect on June 24, 2015. Following a hearing on the preliminary injunction motions, this Court postponed the effective date of the Frack-ing Rule pending the BLM’s lodging of the Administrative Record (“A.R.”) and the Court’s ultimate ruling on the preliminary injunction motions. (See ECF No. 97.)

For the better part of the last decade, oil and natural gas production from domestic'walls has increased steadily. Most of this increased production has come through the application of the well stimulation technique known as hydraulic fracturing (or “fracking”) — the- procedure by which oil and gas producers inject water, sand, and certain chemicals into tight-rock formations (typically shale) to create fissures in the rock and allow, oil and gas to escape for collection in a well See 80 Fed.Reg. at 16,181 (estimating that ninety percent of new wells drilled on federal lands in 2013 were stimulated using hy"draulic fracturing techniques). Hydraulic fracturing has been used to stimulate wells in the United States for at least 60 years— traditionally in conventional limestone arid sandstone reservoirs — and meaningful attempts to use the technique to extract hydrocarbons from shale date back to at least the 1970s. See U.S. Dep’t of Energy, How is Shale Gas Produced ? “More recently, hydraulic fracturing has been coupled with relatively new horizontal drilling technology in larger-scale operations that have allowed greatly increased access to shale oil and gas resources across the country, sometimes in areas that have not previously or recently experienced significant oil and gas development.” 80 Fed. Reg. 16,128.

Purportedly in response to “public concern about whether fracturing can lead to or cause the contamination of underground water sources,” and “increased calls for stronger regulation and safety protocols,” the BLM undertook rulemaking to implement “additional regulatory effort and oversight” of this practice. Id. at 16,128 & 16,131. In May of 2012, the BLM issued proposed rules “to regulate hydraulic fracturing on public land and Indian land.” 77 Fed.Reg. 27,691 (May 11, 2012). The stated focus of the rules was to: (i) provide disclosure to the public of chemicals used in hydraulic fracturing; (ii) strengthen regulations related to well-bore integrity; and (iii) address issues related to water produced’ during, oil and gas operations. Id. The BLM reports it received approximately 177,000 public comments on the initial proposed rules “from individuals, Federal and state governments and agencies, interest groups, and industry representatives.” 80 Fed.Reg. at 16,131.

Just over a year later, the BLM issued revised proposed rules, representing that the agency has “used the comments on [the May 11, 2012 draft proposed rules] to make improvements” to the agency’s proposal. 78 Fed.Reg. 31,636 (May 24, 2013). Key changes included an expanded set of cement evaluation tools to help ensure protection and isolation of usable water zones and a revised process for how operators could report information about chemicals they claim to be protected as trade secrets. Id, at 31,636 & 31,637. The BLM also expressed its intent to “work with States and tribes to establish formal agreements that will leverage the strengths of partnerships, and reduce duplication of efforts for agencies and operators, particularly in implementing the revised proposed rule as consistently as possible with State or tribal regulations.” Id. at 31,637. The BLM reportedly received over 1.35 million comments on the supplemental proposed rule. 80 Fed.Reg. at 16,131.

The BLM ultimately published its final rule regulating hydraulic fracturing on federal and Indian lands on March 26, 2015. The BLM determined the Fracking Rule fulfills the goals of the initial proposed rules: “[t]o ensure that wells are properly constructed to protect water supplies, to make certain that the fluids that flow back to the surface as a result of hydraulic fracturing operations are managed in an environmentally responsible way, and to provide public disclosure of the chemicals used in hydraulic fracturing fluids.” Id. at 16,128.

The Industry Petitioners and the States of Wyoming and Colorado filed separate Petitions for Review of Final Agency Action on March 20th and 26th, 2015, respectively, seeking judicial review of the Fracking Rule pursuant to the Administrative Procedure Act (“APA”)) 5 U.S.C. § 701 et seq. The States of North Dakota and Utah, and the Ute Indian Tribe of the Uintah and Ouray Reservation, later intervened in the States’ action, and the Court granted the parties’ motion to consolidate the two separate actions. Petitioners and Intervenor-Petitioners request a preliminary injunction enjoining the BLM from applying the» Fracking Rule pending the resolution of this litigation.

Standard of Review

To obtain a preliminary injunction, petitioners must show: “(1) a likelihood of success on the merits; (2) that they will [likely] suffer irreparable harm; (3) that the balance of equities tips in their favor; and (4) that the injunction is in the public, interest.” Petrella v. Brownback, 787 F.3d 1242, 1257 (10th Cir.2015). See also Glossip v. Gross, — U.S. -, 135 S.Ct. 2726, 2736, 192 L.Ed.2d 761 (2015) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20,129 S.Ct. 365, 172 L.Ed.2d 249 (2008)). “[B]ecause a preliminary injunction is an extraordinary remedy, the movant’s right to relief must be clear and unequivocal.” Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne, 698 F.3d 1295, 1301 (10th Cir.2012) (internal quotation marks and citation omitted).

■ The purpose of a preliminary injunction is merely to preserve-the relative positions of the parties until á trial on the merits can be held. Given this limited purpose, and given the haste that is often necessary if those positions are to be preserved, a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits. A party thus is not required to prove his case in full at a preliminary-injunction hearing, and the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.

Univ. of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981)(citations omitted). See also Attorney General of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir.2009); RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir.2009) (primary goal of preliminary injunction is to-preserve.the pre-trial status quo). The grant or denial of a preliminary injunction lies within the sound discretion' of the district court. Amoco Oil Co. v. Rainbow Snow, 748 F.2d 556, 557 (10th Cir.1984).

Discussion

Petitioners contend' the' Fracking Rule should be set aside because it is arbitrary, not in accordance with law, and in excess of the BLM’s statutory jurisdiction and authority.' See 5’ U.S.C. § 706(2)(A) & (C). The Ute Indian Tribe additionally contends the Fracking Rule is contrary to the Federal trust obligation to Indian tribes.

A, Likelihood of Success on the Merits

Judicial review of agency action is governed by the standards set forth in § 706 of the APA, requiring the reviewing court to engage in a “substantial inquiry.”-Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1573-74 (10th Cir.1944) (citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). While an agency’s decision is entitled to a “presumption of regularity,” the presumption does not shield the agency from a “thorough, , probing, in-depth review.” Id. at 1574. “[T]he essential function of judicial review is a deteimination' of (1) whether the agency acted within the scope of its authority, (2) whether the agency complied' with prescribed procedures, and (3) whether the action is otherwise arbitrary, capricious or an abuse of discretion,” Id. “Determination of whether the agency acted within the scope of its authority requires a delineation of the scope óf the agency’s authority and discretion, and consideration of whether on the facts, the agency’s action ean reasonably be said to be within that range.” Id.

Under the arbitrary and capricious standard, a court must .ascertain “whether the agency examined the relevant data and articulated a rational connection between the facts found and the decision made.” Id. The agency must provide a reasoned basis for .its action and the action must be supported by the facts in the record. Id. at 1575. Agency action is arbitrary if not supported by “substantial evidence” in the administrative. record. Olenhouse, 42 F.3d at 1575; Pennaco Energy, Inc. v. U.S. Dep’t of Interior, 377 F.3d 1147, 1156 (10th Cir.2004). “Substantial evidence is such relevant evidence as . a reasonable mind might accept as adequate to support a conclusion.” Pennaco Energy, 377 F.3d at 1156 (quoting Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir.2003)). “Because the arbitrary and capricious standard focuses on the rationality of an agency’s decisionmaking process rather than on the rationality of the actual decision, ‘[i]t is well-established that an agency’s action must be upheld, if at all, on the basis articulated by the agency itself.’” Olenhouse, 42 F.3d at 1575 (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Ins. Co., 463 U.S. 29, 50, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). Courts will not" accept post-hoc rationalizations for agency action. Biodiversity Conservation Alliance v. Jiron, 762 F.3d 1036, 1060 (10th Cir.2014). “The agency itself must supply the evidence of that reasoned decisionmak-ing in the statement' of basis and purpose mandated by the APA.” Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am. v. United States, 735 F.2d 1525, 1531 (D.C.Cir.1984). See also Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 53 (D.C.Cir.1999) (rule’s preamble serves as a source of evidence concerning contemporaneous agency intent).

1. Whether BUM Has Authority to Regulate. Hydraulic Fracturing

“It is axiomatic that an administrative agency’s power to promulgate legislative regulations is limited to the authority delegated by Congress.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). “Regardless of how serious the problem an administrative agency seeks to address, [ ] it may not exercise its authority ‘in a manner that is inconsistent with the administrative structure that Congress enacted into law.’” Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (quoting ETSI Pipeline Project v. Missouri, 484 U.S. 495, 517, 108 S.Ct. 805, 98 L.Ed.2d 898 (1988)). Accordingly, an- “essential function” of a court’s- review under the APA is to determine “whether an agency acted within the scope of its authority.” WildEarth Guardians v. U.S. Fish and Wildlife Serv., 784 F.3d 677, 683 (10th Cir.2015).

Where a case involves an administrative agency’s assertion of authority to regulate a particular activity pursuant to a statute that it administers, the court’s analysis is governed by Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Brown & Williamson, 529 U.S. at 132, 120 S.Ct. 1291.

Under Chevron, a reviewing court must first ask whether Congress has directly spoken to the precise question at issue. If Congress has done so, the inquiry is at an end; the court must give éffect to the unambiguously expressed intent of Congress. But if Congress has not specifically addressed the question, a reviewing court must respect the agency’s construction of the statute so long as it is permissible. Such deference is justified because the responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones, and because of the agency’s greater familiarity with the ever-changing facts and circumstances surrounding the subjects regulated[.]

Id. (internal quotation, marks and' citations omitted). This Court must first determine, then, whether Congress has directly addressed the issue of BLM’s authority to regulate hydraulic fracturing.

The Supreme Court has provided the following guidance for determining whether Congress has specifically addressed the question at issue:

In determining whether Congress has specifically addressed the question at - issue, a reviewing court should not confíne itself to, examining a particular statutory provision in isolation. The meaning — or ambiguity — of certain words or phrases, may only become evident when placed in context. See Brown v. Gardner, 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994) (“Ambiguity is a creature not of definitional possibilities- but of statutory context”). It is a “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Davis v. Michigan Dept of Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989). A court must therefore interpret the statute “as a symmetrical and coherent regulatory scheme,” Gustafson v. Alloyd Co., 513 U.S. 561, 569, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995), and “fit, if possible,.all parts into an harmonious whole,” FTC v. Mandel Brothers, Inc., 359 U.S. 385, 389, 79 S.Ct. 818, 3 L.Ed.2d 893 (1959). Similarly, the meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand. See United States v. Estate of Romani, 523 U.S. 517, 530-531, 118 S.Ct. 1478, 140 L.Ed.2d 710 (1998); United States v. Fausto, 484 U.S. 439, 453, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988). In addition, we must be guided to á degree by common sense as to the manner in which Congress is likely to delegate a policy- decision of such economic and political magnitude to an administrative agency. Cf. MCI. Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218, 231, 114 S.Ct. 2223, 129 L.Ed.2d 182 (1994).

Id. at 132-33, 120 S.Ct. 1291. Guided by the foregoing principles, the Court finds that Congress Has directly spoken to the 'issue and precluded federal agency authority to regulate hydraulic fracturing not involving the use of diesel fuels.

Despite having previously disavowed authority to regulate hydraulic fracturing, the. BLM now asserts authority to promulgate the Fracking Rule under various statutes: the Federal Land Policy and Management Apt of. 1976 (“FLPMA”), 43 U.S.C. §§ 1701-1787; the Mineral Leasing Act of 1920 (“MLA”), 30 .U.S.C. §§ 181-287; the 1930 Right-of-Way Leasing Act, id. §§ 301-306; the Mineral Leasing Act for Acquired Lands, id. §§ 351-360; the Federal Oil and Gas-Royalty Management Act of 1982, id. §§ 1701-1759; the Indian Mineral Leasing Act of 1938 (“IMLA”), 25 U.S.C. §§ 396a-396g; and the Indian Mineral Development Act of 1982 (“IMDA”), id. §§ 2101-2108. 80 Fed.Reg. at 16,217. The State’ Petitioners and Ute Indian Tribe argue none of these statutes authorize the BLM to regulate hydraulic fracturing activities.

The MLA creates a program for leasing mineral deposits on federal lands. Congress authorized the Secretary “to prescribe necessary and, proper rules and regulations and to do any and all things necessary to carry out and accomplish the purposes of the [the MLA].” 30 U.S.C. § 189 (emphasis added). “The purpose of the Act is to promote the orderly development of oil and gas deposits in publicly owned lands of the United States through private enterprise.” Geosearch, Inc. v. Andrus, 508 F.Supp. 839, 842 (D.Wyo.1981) (citing Harvey v. Udall, 384 F.2d 883 (10th Cir,1967)). See also Arkla Exploration Co. v. Texas Oil & Gas Corp., 734 F.2d 347, 358 (8th Cir.1984) (“broad purpose of the MLA was to provide incentives to explore new, unproven oil and gas areas through noncompetitive leasing, while assuring through competitive bidding .adequate compensation to the government for leasing in producing areas”). Specifically for oil and gas leasing, the MLA, inter alia, establishes terms of the lease and royalty and rental amounts (30 U.S.C. §§ 223, 226(d) & (e)), requires the lessee to “use all reasonable precautions to prevent waste of oil or gas developed in the land” (id. § 225), authorizes the Secretary of Interior to lease all public lands subject to the Act for oil and gas development (id.§ 226(a)), directs the Secretary to regulate surface- disturbing activities (id. § 226(g)), and allows for the establishment of cooperative development plans to conserve oil and gas resources (id. § 226(m)).

In the Right-of Way Leasing Act, .Congress expanded the Secretary’s leasing authority to allow leasing of federally owned minerals beneath railroads and other rights of way. 30 U.S.C. § 301. Like the MLA, the Right-of-Way Leasing Act grants the Secretary general rulemaking authority to carry out the Act. Id. § 306. The Mineral Leasing Act for Acquired Lands again extended the provisions of the MLA, including the Secretary’s leasing authority, to apply to minerals beneath lands coming into federal ownership and. not already subject to the MLA., 30 U.S.C. §§ 351-52. Although, like the MLA,- the Act grants the Secretary rulemaking authority to carry out the purposes of the Act, id. § 359, the Act simply expanded the BLM’s authority to issue and manage leases for the development of specified minerals, including oil and gas. See Watt v. Alaska, 451 U.S. 259, 269, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981). The Fracking Rule’s authority section also Cites the general rulemaking authority granted by the Federal Oil and Gas Royalty Management Act of 1982 (“FOGRMA”). 30 U.S.C. § 1751. FOGRMA, however, simply creates a thorough’ system for 'collecting and accounting for federal mineral royalties. See Shell Oil Co. v. Babbitt, 125 F.3d 172, 174 (3rd Cir.1997). The general rulemak-ing authority granted by' these ancillary mineral leasing statutes, which is cabined by the purposes of the Acts,.cannot be interpreted as authority for comprehensive regulation of hydraulic fracturing. ;

The Secretary also invokes the statutory authority granted to the BLM by the Indian Mineral Leasing Act and the Indian Mineral Development Act as a basis for the Fracking Rule. These statutes, generally, grant the Secretary broad regulatory jurisdiction over oil and gas development and operations' on Indian lands. 25 U.S.C. §§ 396d, 2107. However, neither the IMLA nor the IMDA delegates any more specific authority over oil and gas drilling operations than the MLA, nor has BLM promulgated separate regulations for operations on Indian lands. Rather,, existing Bureau of Indian Affairs (“BIA”) ‘regulations incorporate 43 C.F.R. Part- 3160 (Onshore Oil and Gas Operations — General) and require BLM to oversee implementation of those regulations. 25 C.F.R.,§§ 211.4, 225.4. The Fracking Rule amends and revises the Part 3160 regulations. See 80 Fed.Reg. at 16,217.

BLM claims the Fracking Rule simply supplements existing requirements for oil and gas operations set out in 43 C.F.R. 3162.3-1 and Onshore Oil and Gas Orders 1,. 2 and- 7. 80 Fed.Reg. at 16,129. BLM asserts its decades-old “cradle-to-grave” regulations governing oil and gas operations, promulgated pursuant to its MLA § 189 authority, already include regulation of hydraulic fracturing, albeit minimally “because the practice was not extensive (or similar to present-day design) when the regulations were promulgated.” (Resp’t Br. in Opp’n to Wyoming and Colorado’s Mot. for Prelim. Inj. at 11) (ECF No. 68). Historically, however, BLM’s only regulation addressing hydraulic fracturing worked to prevent any additional surface disturbance and impose reporting requirements and did not regulate the fracturing process itself. See 43 C.F.R. § 3162.3-2(b) (“Unless additional surface disturbance is involved ... prior approval is not required for routine fracturing or acidizing jobs ...; however, a subsequent report on these operations must be filed____”). This requirement makes sense because the MLA expressly authorizes regulation of “all sw/ace-disturbing activities ... in the interest of conservation of surface resources.” 30 U.S.C. § 226(g) (emphasis added). The BLM cites to no other existing regulation addressing hydraulic fracturing. Neither does the BLM cite any specific provision of the mineral leasing statutes authorizing regulation of this underground activity or regulation for the purpose of guarding against any incidental, underground environmental effects. Indeed, the BLM has previously taken the position, up until formulation of the Frack-ing Rule, that it lacked the authority or jurisdiction to regulate hydraulic fracturing. See Center for Biological Diversity v. BLM, 937 F.Supp.2d 1140, 1156 (N.D.Cal.2013).

When an agency claims to discover in a long-extant statute an unheralded power to regulate “a significant portion of the American economy,” [the Court] typically greet[s] its announcement with a measure of skepticism. [The Court] expeet[s] Congress to speak clearly if it wishes to assign to an agency decisions of vast “economic and political significance.”

Utility Air Regulatory Group v. EPA — U.S. -, 134 S.Ct. 2427, 2444, 189 L.Ed.2d 372 (2014) (quoting Brown & Williamson, 529 U.S. at 159, 160, 120 S.Ct. 1291).

In 1976, Congress enacted the Federal Land Policy and Management Act to provide “a comprehensive statement of congressional policies concerning the management of the public lands” owned by the United States and administered by the BLM. Rocky Mtn. Oil and Gas Assn v. Watt, 696 F.2d 734, 737 (10th Cir.1982). As with the MLA, Congress áuthórized the Secretary of the Interior to “promulgate rules and regulations to carry out the purposes of this Act and of other laws applicable to the public lands[.]” 43 U.S.C. § 1740 (emphasis added). FLPMA charges the BLM with managing public lands on the basis of “multiple use and sustained yield” of' their various resources — that is, utilizing the resources “in the combination that will best meet the present and future needs of the American people ... [taking] into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values[,]” and “achievement and maintenance in perpetuity of -a high-level annual or regular periodic output of the various renewable resources of the public lands consistent with multiple use.” Id. §§ 1701(a)(7), 1702(c) & (h).

“‘Multiple use management’ is a deceptively simple term that describes the enormously complicated task of striking a balance among the many competing uses to which land can b.e put[.]” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 58, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). The public lands are to be managed in a manner “that will protect the quality of scientific, scenic, historical, ecological, environmental, air and ■ atmospheric, water resource, and archeological values,” while at the same time recognize “the Nation’s need for domestic sources of minerals, food, timber, and fiber from the public lands[.]” 43 U.S.C. § 1701(a)(8) & (12). FLPMA “represents an attempt by Congress to balance the use of the public lands by interests as diverse as the lands themselves.” Rocky Mtn. Oil and Gas Ass’n, 696 F.2d at 738. In pursuit of this general purpose, Congress authorized the BLM to “take any action necessary to prevent unnecessary or • undue degradation of the lands” and to promulgate regulations necessary to achieve FLPMA’s goals. 43 U.S.C. §§ 1732(b), 1733(a), and 1740.

.Although the Secretary asserts FLPMA delegates to BLM-broad authority and. discretion to manage and regulate activities on public lands, the BLM has not heretofore asserted FLPMA as providing it with authority to regulate oil and gas drilling operations pursuant to 43 C.F.R. Part 3160. Nothing in FLPMA provides BLM with specific authority to regulate hydraulic fracturing or underground injections of any kind; rather, FLPMA primarily establishes congressional policy that the Secretary manage the public lands under principles of multiple use and sustained yield. At its core,. FLPMA is a land use planning statute. See 43 U.S.C. § 1712; Rocky Mtn. Oil and Gas Assn, 696 F.2d at 739 (“FLPMA contains comprehensive inventorying and land, use planning provisions to ensure that the ‘proper multiple use mix of retained public lands’ be achieved”); S. Utah Wilderness Alliance, 542 U.S. at 57, 124 S.Ct. 2373 (FLPMA establishes a dual regime of inventory and planning); Klamath Siskiyou Wildlands Center v. Boody, 468 F.3d 549, 555 (9th Cir.2006) (FLPMA establishes requirements for land use planning on public land). In the context of oil and gas operations, FLPMA generally comes into play “[a]t the earliest and broadest level of decision-making?’ when a land use plan is developed identifying allowable uses for a particular area. Pennaco Energy, Inc. v. U.S. Dep’t of Interior, 377 F.3d 1147, 1151 (10th Cir.2004). If oil and gas development is allowed,. BLM first determines whether the issuance of a particular oil and gas lease conforms to the land-use plan. Id. (citing 43 C.F.R. § 1610.5-3(a)). The lessee must then 9btain BLM approval of an Application for Permit to Drill (“APD”) before commencing any' '“drilling operations” or “surface disturbance preliminary thereto” and comply with other provisions of Part 3160. See id.) 43 C.F.R. 3162.3-1(c).

In the meantime, and prior to the enactment of FLPMA, Congress had enacted the Safe Drinking Water Act (“SDWA”). Pub.L. No. 93-523, 88 Stat. 1660 (1974) (codified as amended at 42 U.S.C. §§ 300f through 300j-26). Part C of the SDWA establishes a regulatory'program specifically for the protection of underground sources of drinking water. 42 U.S.C. §§ 300h through 300h-8. This program requires the Environmental Protection Agency (“EPA”) to promulgate regulations that set forth minimum requirements for effective State underground injection control (“UIC”) programs “to prevent underground injection which endangers drinking water sources.”' Id. § 300h(b)(l). Part C prohibits “any underground injection” without a permit and mandates that a UIC program include “inspection, monitoring, recordkeeping, and reporting requirements!;.]” Id. § 300h(b)(1)(A) & (C). The SDWA defined “underground injection” as “the subsurface emplacement of fluids by well injection.” Id. § 300h(d)(1). See, Legal Envtl. Assistance Found., Inc. v, EPA, 118 F.3d 1467, 1470 (11th Cir.1997) (“LEAF”).

For two decades after the enactment of the SDWA, the EPA took the position that hydraulic fracturing was not subject to the UIC program because that technique for enhancing the recovery of natural. gas from underground formations did not, by its interpretation, fall within the regulatory definition of “underground injection.” See LEAF, 118 F.3d at 1471. Responding to a challenge of Alabama’s UIC program because it did not regulate hydraulic fracturing activities, the EPA stated it interpreted the definition of “underground injection” as encompassing only those wells whose “principal function” is the underground emplacement of fluids. The EPA had determined that the principal function of gas production wells which are also used for hydraulic fracturing is gas production, not the underground' emplacement of fluids. Id. The Eleventh Circuit Court of Appeals rejected the EPA’s position. Applying the first step in the Chevron framework, the LEAF court concluded the unambiguous language of the statute made clear that Congress intended for the EPA to regulate all underground injection under the UIC programs, and the process of hydraulic fracturing obviously fell within the plain meaning of the statutory definition of. “underground injection.” Id. at 1474-75.. Thus, pursuant to the SDWA’s cooperative federalism system for regulating underground- injection, including hydraulic fracturing, the States and .Indian Tribes could assume primary enforcement responsibility for UIC programs, subject to, EPA approval and oversight. See 42 U.S.C. § 300h—1(b), (c) & (e).

Such was the state of ’the law when Congress enacted the Energy'Policy Act of 2005 (“EPAct”), a comprehensive energy bill addressing a wide range of domestic energy resources, with the purpose of ensuring jobs for the' future “with secure, affordable, and reliable energy.” Pub.L. No. 109-58,- 119 Stat. 594 (2005), The EPAct was intended, at least in part, to expedite oil and gas development -within the United States. See Western Energy Alliance v. Salazar, No. 10-CV-237-F, 2011 WL 3738240, at *2 (D.Wyo. Aug. 12, 2011) (unpublished). Recognizing the EPA’s authority to regulate hydraulic fracturing under the SDWA, the EPAct included an amendment to the SDWA, expressly and, unambiguously revising the definition of '“underground injection” to exclude “the underground injection of fluids or propping agents' (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities.” EPAct Sec. 322 (codified at 42 U.S.C. § 300h(d)(1)(B)(ii)). There can be no question that Congress intended to remove hydraulic fracturing operations (not involving diesel fuels) from EPA regulation under the SDWA’s UIC program.

The issue presented here is whether the EPAct’s explicit removal of the EPA’s regulatory authority over non-diesel hydraulic fracturing likewise precludes the BLM from regulating that activity, thereby removing fracking from the realm -of federal regulation. Although the BLM does not claim authority for its Fracking Rule under the SDWA, a statute administered by the EPA, it defies common sense to interpret the more general authority granted by the MLA and FLPMA as providing the BLM authority to regulate fracking when Congress has directly spoken to the issue.in the EPAct. The SDWA specifically addresses protection of underground sources of drinking water through regulation of “underground injection,” and Congressional intent as expressed in the EPAct indicates clearly that hydraulic fracturing is not subject to federal regulation unless if involves the .use of diesel fuels. “[T]he Executive Branch is not permitted to administer [an] Act in a manner that is inconsistent with the administrative structure that Congress enacted into law.”. ETSI Pipeline Project v. Missouri, 484 U.S. 495, 517, 108 S.Ct. 805, 98 L.Ed.2d 898 (1988). If agency regulation is prohibited by a statute specifically directed at a particular activity, it cannot be reasonably concluded that Congress intended regulation of the same activity would be authorized under a more genéral statute administered by á different agency. “[I]t is a commonplace of statutory construction that the specific governs the general[.]” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384, 112 S.Ct, 2031, 119 L.Ed.2d 157 (1992). See also In re Gledhill, 76 F.3d 1070, 1078 (10th Cir.1996) (“a court should not construe a general statute to eviscerate a statute of. sper. cific effect”).

In determining whether- Congress- has spoken directly to the BLM’s authority to regulate hydraulic fracturing under the MLA or FLPMA, this Court cannot ignore the implication of Congress’ fracking-spe-cific legislation in the’SDWA and EPAct.

The “classic judicial task of reconciling many laws enacted over time, and getting Them to ‘make sense’ in combination, necessarily assumes that the implications of a statute may be altered by the implications of a later statute.” United States v. Fausto, 484 U.S. at 453, 108 S.Ct. 668. This is particularly so where the scope of the earlier statute is broad but the 'subsequent statutes more specifically address the topic at hand. As [the Supreme Court] recognized [] in United States v. Estate of Romani, “a specific policy embodied in a later federal statute should control our construction of the [earlier] statute, even though it ha[s] not been expressly amended.” 523 U.S. at 530-531, 118 S.Ct. 1478.

Brown & Williamson, 529 U.S. at 143, 120 S.Ct. 1291. The BLM argues that because no provision in the SDWÁ or EPAct expressly prohibits regulation of underground injection under any other federal statute, those Acts do not- displace its authority to regulate the activity under FLPMA and the MLA. However, a court “[does] not presume a delegation of power simply from the absence of an express withholding of power[.]” Chamber of Commerce of U.S. v. NLRB, 721 F.3d 152, 160 (4th Cir.2013). At the time the EPAct was enacted, the BLM had not asserted authority to regulate the fracking process itself and a Circuit Court of Appeals had determined Congress intended the activity to be regulated by the EPA under the SDWA. “Congress does not regulate in a vacuum.” Passamaquoddy Tribe v. State of Me., 75 F.3d 784, 789 (1st Cir.1996). “The chief objective of statutory interpretation is To give effect to the legislative will. To achieve this objective-a court must take into account the tacit assumptions that underlie a legislative enactment, including not only general policies but also preexisting statutory provisions.” Id, at 788-89.

The BLM further argues that interpreting the EPAct as precluding all federal regulation of hydraulic fracturing would leave a regulatory gap on federal and Indian lands where the relevant States or Tribes are not sufficiently regulating the activity under state or tribal law. Even so, “no matter how important, conspicuous, and controversial the issue, ... an administrative agency’s power to regulate in the public interest must always be grounded in a valid grant of authority from Congress.” Brown & Williamson, 529 U.S. at 161, 120 S.Ct. 1291. And even if the BLM’s interpretation was entitled to any deference in these circumstances, Chevron “is not a wand by which courts can turn an unlawful frog into a legitimate prince.” Associated Gas Distrib. v. F.E.R.C., 824 F.2d 981, 1001 (D.C.Cir.1987). It seems the BLM is attempting to do an end-run around -the EPAct; 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; “for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778.

2. Whether the Fracking Rule is Arbitrary, Capricious, an Abuse of Discretion or Otherwise Not in Accordance with Law

Even if the BLM had the authority to promulgate the--Fracking Rule, the Court is troubled by the paucity of evidentiary support for the Rule. Agency action must be the product of “reasoned decisionmaking” and supported by facts, in the record. Olenhouse, 42 F.3d at 1575; see also Michigan v. EPA, — U.S. -, 135 S.Ct. 2699, 2706, 192 L.Ed.2d 674 (2015). In the absence of a “rational justification” for the agency’s action, the “APA’s arbitrary and capricious standard” requires that the action be set aside. Shays v. Federal Election Comm’n, 414 F.3d 76, 97 (D.C.Cir.2005). The Fracking Rule’s preamble references the “potential impacts that [fracking]..may have on water quality and water consumption” as justification for federal regulation.' 80 Fed.Reg. at 16,131 (emphasis-added). While “public concern” and “potential impacts” certainly warrant further study and investigation, such speculation, in itself, cannot justify comprehensive -rulemaking. =- There must be a rational connection between- the facts found and the decision made. Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43, 103 S.Ct. 2856. The BLM has 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. Rather, the Fracking Rule .seems a remedy in. search of harm.

The -BLM asserts the Fracking-Rule is necessary to address- concerns raised by the increased technological complexity and expansion of hydraulic fracturing. 80 Fed.Reg. 16,128. Specifically, the final rule raises the risk, of groundwater contamination as a primary concern motivating many of its provisions. . The rule references and discusses two reports by the National Academy of Sciences issued in 2011 and 2012 identifying “three possible mechanisms for fluid migration into shallow drinking-water aquifers ■ that could help explain the increased methane concentrations observed in water wells that existed around shale gas wells in Pennsylvania.” Id. at 16,194 (emphasis added). The reports indicated that of the three mechanisms, the first (movement of gas-rich solutions within the shale formations up into shallow drinking-water aquifers) was the “least likely possibility,” and the third (migration of gases through.new or enlarging of existing fractures above the shale formation) is “unlikely.” Id. The second possible mechanism (contamination from leaky gas-well casings) is the “most likely.” • Id. From this, the BLM determined that “assurances of the strength of the casing are appropriate” but does, not discuss how its existing regulations governing well easing are insufficient. Id. 'at 16,193. ■ ‘

The BLM also cited' “potential impacts” identified by the EPA in a -2014 report, which itself admitted the national study being undertaken at the time “to understand the* potential' impacts of hydraulic fracturing on drinking- water resources” would enhance its scientific knowledge. Id. at 16,194. Also within that report, the EPA noted a core element of the SDWA’s UIC program is setting requirements for proper well siting, construction, and operation - to minimize risks to underground sources' of drinking water and pointed to its own UIC permitting guidance specific to oil and gas hydraulic fracturing activities using diesel fuels. - “Thus, states.and tribes responsible, for- issuing permits and/or updating regulations for hydraulic fracturing will find the recommendations useful in improving the protection of underground sources of drinking water and public health wherever hydraulic fracturing occurs.” U.S. Environmental Protection Agency, Natural Gas Extraction— Hydraulic Fracturing: Providing Regulatory Clarity and Protections against Known Risks, http://www2.epa.gov/ hydraulicfracturing#, providing.

The final rule’s preamble briefly discusses prevention of “frack hits;”1 “which are unplanned surges of-pressurized fluids from one [oil and gas] wellbore into another [oil and gas] wellbore.” 80 Fed.Reg. at 16.193. “During these instances of down-hole interwell communication, ... the pumped-in hydraulic fracturing fluid may flow into and up through a nearby well, causing a blow out and spill.” Id. at 16,194 (emphasis addéd). Although frack hits have resulted in surface spills and caused the loss of recoverable oil and gas, “they have not yet been shown to be a source of contamination of usable water.” Id. at 16.193. So, while frack hits may very well be a concern the BLM should address, they do not appear to be a valid justification for the Fracking Rule; particularly where they- were 'not even raised as an issue in the supplemental rule. See 78 Fed.Reg. 31,636; 80 Fed.Reg. 16,149; DOI AR 0080262. Finally, the BLM also refer-enees public concern about “whether the chemicals used in fracturing pose risks to human health, and whether there is adequate management of well integrity and the fluids that return to the surface during and after fracturing operations.” 80 Fed.Reg. 16,128.

The BLM does not appear to have given any consideration to whether these concerns or potential impacts aré substantiated by faét or to the evidence contrary to its conclusion that there is a need for “additional regulatory effort and oversight.” Id. at 16,128. “In determining whether [an agency’s] decision is supported by substantial evidence, the court must also consider that evidence which fairly detracts from the [agency’s] decision.” Hall v. U.S. Dep’t of Labor, 476 F.3d 847, 854 (10th Cir.2007). The record reflects that both experts and government regulators have repeatedly acknowledged a lack of evidence linking the hydraulic fracturing process to groundwater contamination. The BLM fails to reference a single confirmed case of the hydraulic fracturing process contaminating groundwater. "While the Court agrees the BLM need not wait for “a catastrophe” to take action for the protection of public resources' from risks, there must be substantial evidence to support the existence of a risk. The Court sees nothing in the BLM’s official explanation (or the record) that satisfies the APA’s arbitrary and capricious 'standards.

While recognizing that many states have regulations in' place addressing hydraulic fracturing operations, the ‘ BLM determined that the state requirements are not uniform and do not necessarily fulfill BLM’s statutory obligations, and further reasoned that “[t]he provisions in this final rule provide for the BLM’s consistent oversight and establish a baseline for environmental protection across all public and Indian lands undergoing hydraulic fracturing.” 80 Fed.Reg. at 16,130. See also id. at 16,133 and 16,154. "While the record contains some comparative analyses regarding how the state regulations differ from one another and from the Fracking Rule (see DOI AR 0004772, 0007893-94, 0045522-27, 0100575-80), there is no discussion of how any, existing state regulations are inadequate to protect against the perceived risks to groundwater. The BLM fails to identify any states that .do not have regulations, adequate to achieve the objectives of the Fracking Rule, nor does the BLM cite eyidence that its rule will be any more effective in practice than existing state regulations protecting water and other environmental values. , Indeed, the record supports the contrary.. The Court finds a desire for uniformity, in itself, is insufficient. Because the BLM has failed to “examine the relevant data and articulate a satisfactory explanation for its action'including a rational connection between the facts and the choice made,” the Fracking Rule is likely arbitrary, requiring that it be set aside. Sorenson Commc’ns, Inc. v. FCC, 567 F.3d 1215, 1220-21 (10th Cir.2009) (quoting Motor Vehicle Mfrs. Ass’n of U.S., 463 U.S. at 43, 103 S.Ct. 2856) (internal quotation marks omitted).

The Industry Petitioners further challenge particular aspects of the Fracking Rule as being arbitrary and capricious. Given the Court’s prehminary findings above, which are dispositive on the validity of the final rule as a whole, the Court need not address each, of the specific issues raised by Petitioners. Nevertheless, the Court will briefly, address those issues it finds most, problematic.

a. Mechanical Integrity Testing

The final rule requires that before hydraulic fracturing operations begin, the operator must perform a successful mechanical integrity test (“MIT”) of any casing or fracturing string through which the operation will be conducted. See 43 ■ C.F.R. § 3162.3 — 3(f). BLM’s' Onshore Oil and Gas Order No. 2 already requires operators to conduct casing integrity tests to ensure that all casing can withstand the pressures 'to which the wellbore will be subject. See Onshore Oil and Gas Order No. 2, Drilling Operations § III.B.1.h & i, 53 Fed.Reg. 46,798-01, at 46,809 (Nov. 18.1988). “The MIT required by final section 3162.3-3(f) is not equivalent to either the casing pressure test required by Onshore Order 2, section III.B.1.h., or the casing shoe pressure test as currently required by Onshore Order 2, section III. B.l.i.” 80 Fed.Reg. at 16,160. Aside from brief reference to consistency with industry guidance and many state regulations (without citation), the BLM offers no explanation for modifying the pressure test requirement.

Additionally, the Fracking Rule’s new MIT requirement applies not only to vertical casing that is designed to protect usable water, but also to horizontal laterals. This requirement was a change from the supplemental proposed rule which required an MIT on only vertical sections of the wellbore. See 80 Fed.Reg. at 16,159. The BLM briefly explains that the purpose of this change is to ensure “that the entire length of casing or fracturing string, not just the vertical section, prior to the perforations or openhole section, of the well, is able to withstand the applied pressure and contain the hydraulic fracturing fluids.” Id. There is no further discussion or explanation of the reason(s) why this additional testing of the lateral is important. This is particularly troubling since this change was made in the final rule without opportunity for the public to comment on the viability or costs of such a requirement. It does not appear that any comments were submitted addressing the initial requirement to only perform an MIT on vertical sections of the wellbore. See id. at 16,159-16L

“An agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed and not casually ignored, and if an agency glosses over or swerves from prior precedent without discussion it may cross the line from the tolerably terse to the intolerably mute.” Grace Petroleum Corp. v. F.E.R.C., 815 F.2d 589, 591 (10th Cir.1987) (quoting Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970)). And, while an agency is permitted to make changes in the proposed rule after the comment period without a new round of commentary, the changes must be “in character with the original scheme and be foreshadowed in proposals and comments advanced during the rulemaking.” Beirne v. Sec’y of Dep’t of Agric,, 645 F.2d 862, 865 (10th Cir.1981) (internal quotation and citation omitted). The record does not reflect the BLM fulfilled these principles.

b. “Usable Water” Definition

A core provision of the Fracking Rule is the identification and isolation of “usable water.” Since 1982, operators have been-required to “isolate freshwater-bearing [formations] and other usable water containing 5)000 ppm [“parts per million”] or less of dissolved solids ... and protect them from contamination.” 43 C.F.R. § 3162.5-2(d). Under the 1982 rule, “fresh water” is defined to mean “water containing not more than 1,000 ppm of total dissolved solids [“TDS”]” or other toxic constituents. Id. § 3160.0-5. The 1,000 ppm standard for “fresh water” is double the secondary maximum contaminant level the EPA has designated for TDS in drinking water (500 ppm). See DOI AR 0056230. The Industry Petitioners’ comments on the proposed rule noted that a TDS concentration of 2,000 ppm is the highest recommended for irrigation and livestock consumption and cited authorities emphasizing that water with 10,-000 ppm or more may cause brain damage or death in livestock. See DOI AR 0056230-31.

Gone from the Fracking Rule is any reference to fresh water. The final rule amends § 3162.5-2(d), revising the first

sentence of the subsection to require the operator to “isolate all usable water and other mineral-bearing formations and protect them from contamination.” The final rule defines “usable water” as “[generally those waters containing up to 10,000 parts per million (ppm) of total dissolved solids.” 43 C.F.R. § 3160.0-5. The BLM states the reason for this modification to the previous rule is 'to remove the inconsistency between the requirement in the CFR and the requirement in Onshore Order No. 2. 80 Fed.Reg. at 16,141. The BLM claims “[t]he requirement to protect and/or isolate usable water generally containing up to 10,000 ppm of TDS has been in effect since 1988, when Onshore Order 2 became effective.” Id.

Onshore Order No. 2. explains, “The standard for ‘usable water’ of 10,000 ppm of total dissolved solids is based on the regulatory definition by the Environmental Protection Agency of ‘drinking water’ at 40 CFR 144.3.” 53 Fed.Reg. 46,798. The EPA’s definition is a rule implementing the UIC program under the SDWA. Yet, the definition of “usable water” in BLM’s final rule encompasses even .more zones of water than the EPA’s definition of “underground ■ source of drinking. water” in § 144.3. The EPA’s definition of an “underground source of drinking water” contains criteria beyond a simple numerical TDS content upon which the Fracking Rule relies. The EPA. defines “underground source of drinking water” as a nonexempt aquifer (or a portion of an aquifer) that supplies a public water system or that contains a sufficient quantity of ground water to supply a public water system and either currently supplies drinking water for human consumption or contains fewer than .10,000 mg/lTDS. See 40 C.F.R. § 144.3. The BLM provides no reasoned basis or factual support -for its broader definition of usable water; instead,. the BLM simply speculates that other aquifers “might be usable for agricultural or industrial purposes, or to support ecosystems” now or in- the future. . 80 Fed.Reg. at 16,143.

The BLM further disregards its existing practice with respect to implementation of the purported 10,000 ppm standard, insisting that this provision will not be an increased burden, on operators because it simply incorporates the existing requirements in Onshore Order Nos. 1 and 2. Id. at-16,142, 16,151. Under the Fracking Rule, operators are assigned an affirmative obligation to identify the location of usable water to be protected based on the quantitative TDS calculation. , See 43 C.F.R. § 3162.3-3(d)(l)(iii) (requiring request for approval of hydraulic fracturing to include idéntifícation of the “estimated depths (measured and true vertical) to the top and bottom of all occurrences of usable water”). The record reflects 'this is a new, burden. Under current practice, state oil and gas agencies and BLM field offices inform operators about the location of usable water that must be protected, taking into account local geology, and direct the depths at which it is acceptable to set well casing. And while the BLM agrees “that in many instances state or tribal oil and gas regulators, or water-regulators, will be able to identify for operators some or all of the usable water zones that will need to be isolated and protected,” 80 Fed.Reg. at 16,151, the agency has not explained how information received from States and field offices will assist operators to identify usable water of which even the regulators' are unaware. Nor has the BLM identified the “substantial evidence” supporting its apparent determination that compliance with the new rule is both feasible and free of further cost.

The BLM ignored extensive comments in the record emphasizing the difficulty and expense of measuring the numerical quality of water with the precision the final rule requires. By failing to acknowledge the existing practice, the BLM further disregards any impact of the final rule on operators that drilled and cased existing wells relying on government instruction about casing depths. The Frack-ing Rule regulates all future hydraulic fracturing in both new and existing wells. See 43 C.F.R. § 3162.3-3(a). There is no evidence in the record that the BLM, under current practice, ever required an operator to add an additional string of casing to protect “usable water” as defined by Onshore Order No. 2. “[A]gencies may not impose undue hardship by suddenly changing direction, to the detriment of those who have relied on past policy.” Grace Petroleum Corp., 815 F.2d at 591 n. 4 (quoting Cities of Anaheim, Riverside, Banning, Colton and Azusa v. FERC, 723 F.2d 656, 659 (9th Cir.1984)).

To be sustained, an agency’s decision must be reasoned and based on consideration of relevant factors and important aspects of the problem. See Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43, 103 S.Ct. 2856. Whereas operators could- previously rely on the guidance of state and federal regulators in setting, their casing, now the burden of identification and risk of missing information shifts to the operators. The BLM’s preamble fails to explain the reasons for this new approach, the costs and benefits of the new approach, or the evidence of harm (if any) incurred under the former approach. “If Congress established a presumption from which judicial review should start, that presumption ... is ... against changes in current policy that are not justified by the rulemaking record.” Id. at 42, 103 S.Ct. 2856 (emphasis in original).

c. Pre-Operation Disclosures

The Fracking Rule represents a significant expansion of the information that oil and gas developers are required to disclose publicly both before and after operations. See 80 Fed.Reg. 16,128 (“Key changes to the final rule include ... more stringent requirements related to claims of trade secrets exempt from disclosure ... [and] additional disclosure and public availability of information about each "hydraulic fracturing operation[.]”). Before commencing hydraulic fracturing operations, producers will be required to disclose operational information about the location-where drilling will také place, water resources in the vicinity of operations, the location of other wells or natural fractures or fissures in the area, and the producer’s fracturing plans (including the amount of fluid to be injected, the pressure to be applied to the formation, and the estimated length, height, and total vertical depth of the fractures). See 43 C.F.R. § 3162.3-3(d)(1)-(7). After hydraulic fracturing operations, operators will be required to disclose detailed operational information including the components of fracturing fluid used in stimulation, the pressures applied to geologic formations, the length, height, and direction of fractures, and the actual depth of perforations. Id. § 3162.3-3Q.

Recognizing the proprietary nature of some of this information, particularly regarding local geology and the operators’ technical plans and designs, the BLM has provided a méchanism for operators to protect the information that is required to be submitted in the completion reports submitted after hydraulic fracturing. Id. § 3162.3-3(j). However, the BLM fails to provide any regulatory protection for similar information required to be submitted before hydraulic fracturing. In the preamble, the BLM suggests that when submitting information to the' agency, an operator “may segregate the information it believes is a trade secret, and explain and justify its request that the information be withheld from the public.” 80 Fed.Reg. at 16,173. The language of the Fracking Rule itself is more limited. The specific provision allowing operators to withhold information from disclosure, 43 C.F.R. § 3162.3-3(j), applies only to the information required to' be submitted under paragraph (i) of Section 3162.3-3. Id. § 3162.3-3(j)(1). Paragraph (i) is the provision that identifies the information that must be provided after hydraulic fracturing is completed. There is no analogous provision in the final rule allowing operators to protect information that the rule requires to be submitted before hydraulic fracturing operations.

The BLM provides no explanation in the record for drawing a distinction between pre- and post-hydraulic fracturing information. The BLM acknowledges receiving comments that information required in the pre-hydraulic fracturing reports represents confidential information. 80 Fed.Reg. at 16,154. Indeed, in its responsive brief, the BLM. claims “[b]oth pre- and post-operation submissions share the same level of protection from disclosures.” (Resp’t Br. in Opp’n to Industry Pet’rs’ Mot. for Prelim. Inf at 31.) Yet, in response to the public comments, the BLM states its opinion that “the. submission of these estimated values .woqld not routinely meet any of the criteria within the Freedom of Information Act regulations (43 CFR part 2) which would require such information to be held as confidential information.” 80 Fed.Reg. at 16,154. The BLM provides no explanation. of the reasoning it employed to reach this, conclusion or the bases for its belief. “The disparate treatment of functionally indistinguishable products is the essence of the meaning of arbitrary and capricious.” Bracco Diagnostics, Inc. v. Shalala, 963 F.Supp. 20, 28 (D.D.C.1997) (citing Indep. Petroleum Ass’n of Am. v. Babbitt, 92 F,3d 1248, 1260 (D.C.Cir.1996)).

3. Whether the BLM Adequately Consulted with Indian Tribes

The Court also finds merit in the Ute Indian Tribe’s argument that the BLM failed to consult with the Tribe on a government-to-government basis in accordance with its own policies and procedures. On December 1, 2011, pursuant to authority under 25 U.S.C. §§ 2 and 9, the Secretary of the Interior issued Order No. 3317 setting forth the Department of the Interi- or (“DOI”) Policy on Consultation with Indian Tribes. Order No. 3317 stated the following updated and expanded DOI policy on consultation with Indian tribes:

a. Government-to-government consultation between appropriate Tribal officials and the Department requires Department officials to demonstrate a 'meaningful commitment to consultation by identifying and involving Tribal representatives in a meaningful way early in the plarining process.

' b. Consultation is a process that aims to create effective collaboration with Indian tribes and to inform Federal decision-makers. Consultation is built upon government-to-government exchange of information and promotes enhanced communication that emphasizes trust, respect, and shared responsibility ....

c. Bureaus and offices will seek to promote cooperation, participation, and efficiencies between agencies with overlapping jurisdictions, special expertise, or related responsibilities when a Departmental action with Tribal implications arises. Efficiencies derived from the inclusion of Indian tribes in all stages of the tribal consultation will help ensure that future Federal action is achievable, comprehensive, long-lasting, and reflective of tribal input.

Id. Sec. 4 (emphasis added). The Secretary’s Order directed DOI bureaus and offices to, within 180 days, review their existing practices and revise those practices in compliance with the updated policy. Id. Sec. -5(c). The DOI’s Policy required each bureau or office to consult with Indian tribes