by Dan Froomkin
*This piece is part of the ACSblog symposium: The Department of Injustice
It took nearly five years of public hearings and private wrangling for the Obama administration to do it, but in March 2015, the Interior Department's Bureau of Land Management finalized a new rule regarding hydraulic fracturing operations on public lands.
Although the fracking rule was considered fairly toothless by environmentalists, it was immediately caught up in a pitched legal battle. Oil and gas interests sued, and a federal judge enjoined it before it could take effect, on the grounds that the BLM had overreached.
The Justice Department appealed, but by the time oral arguments came around, Donald Trump was in the White House -- and the Interior Department had begun the process of rescinding the rule as part of Trump's wholesale dismantling of Obama's environmental regulations.
On July 27, the unenviable task of representing the United States before a a Tenth Circuit panel in Denver fell to career lawyer Andrew Mergen, the deputy chief of the appellate section of the Justice Department's Environment and Natural Resources Division.
His job: To explain why the Justice Department no longer wanted to win – but didn't want to lose, either.
Referring to the "candidly, awkward position … the government finds itself in before you today," Mergen said that the precedent the lower court ruling would set is that the Interior Department can not write rules like that at all.
So he advocated a "somewhat unusual, although not unprecedented approach to this court, which is to ask this court to hold the case in abeyance, pending completion of this rulemaking." Then the whole case would simply be moot.
"What I understand and I admit candidly is that it's a little bit unfair for this court, what we're asking for," Mergen said. "I realize that undoubtedly is a heavy lift."
Judge Harris L. Hartz agreed. "I'm a little concerned about the notion -- or the precedent -- that we would be setting in allowing the executive branch to sort of jerk around our docket and tell us to hold something in abeyance for what could be forever," he told Mergen.
Judge Mary Beck Briscoe bristled at the precedent that one party in a case could effectively vacate a district court decision they didn't like by making it moot.
"You can't be the party that makes that moot -- and you're the party that's making it moot," she said. "So you win-win. You get to do whatever you want to do whenever you want to do it. No I'm serious. This is the way this looks."
The Supreme Court in April brusquely rejected a similar Justice Department request that it pause -- rather than continue hearing --litigation over the Obama administration's Clean Water Rule. That rule has also never taken effect due to industry lawsuits – and is now also in the process of being rescinded.
The Justice Department last week filed a brief in that case to the high court. But the dispute at the moment is about jurisdiction, rather than the legal merits of the rule. And so far, DOJ is continuing to argue the position it took under Obama: that the actual arguments about the rule, should they ever take place at all, ought to be heard by the Sixth Circuit rather than by numerous district courts at once.