Modern liberalism and its energy-policy offspring
make lavish use of counterintuitive assertion. A
public made to believe men and women differ only
anatomically, for example, might also be persuaded to not only forswear affordable energy but also
relish the hardship. Political movements able to argue past human experience can get away with anything—for a while. This is one reason energy politics has importance beyond the price of gasoline.
The urge to repudiate nature makes liberalism
crave regulation and tolerate the accompanying
compromise of liberty. In response, conservatism
works to suppress governmental intrusion into
individual lives—except when the official touch
might advance commercial interests of a friend.
Perspectives clash all along the political spectrum—even with specific segments of it. Politics,
at its best, reconciles them into some version of
how things are that might not be anyone’s view of
thoroughgoing truth but that at least approximates
reality well enough to work for a majority.
It’s where liberalism and conservativism intersect
that governments make decisions about energy.
This framework, hardly new, helps explain how
honest, well-intended, and socially minded observers can differ radically about how things are—
or should be—with energy.
Radically contrasting views emerged this
month of a court decision about US regulation of
hydraulic fracturing on federal and Indian land.
The US Court of Appeals for the 10th Circuit in
Denver rejected an appeal by environmental organizations to lower-court invalidation of the Bureau
of Land Management’s 2015 rule expanding regulation of hydraulic fracturing. An environmental
group nevertheless claimed victory.
“This decision is two victories in one,” declared
a statement from Earthworks. “It means the BLM
can start enforcing a rule to protect water, public
health, and communities threatened and harmed
by fracking [sic] on public land. The second victory,
no less important than the first, is that in the eyes
of the court and the eyes of the Trump administra-
tion, the public’s land managers have the authority
to regulate drilling on the lands the public owns.”
Even by the loose standards of pressure-group
press notices, declaration of double victory by ap-
pellants in a dismissed appeal case stretched be-
lievability. To be fair, it was not a sweeping defeat
for Earthworks and others on its side. The ruling
was, in fact, a rearranging of legal furniture in re-
sponse to Executive Branch changes.
Under appeal was a 2016 ruling by a district
court in Wyoming that the BLM exceeded its authority with its 2015 rule on hydraulic fracturing.
After taking office last January, President Donald
Trump issued an executive order instructing BLM
to conduct a review. In response to a follow-up order in March, BLM rescinded the regulation. With
the regulation clearly in jeopardy under a new
administration, the appeals court saw no reason
to proceed with the appeal or to rule on the core
question of BLM authority.
“Given these changed and changing circumstances, we conclude these appeals are prudentially unripe,” the court said. “As a result, we dismiss these appeals and remand with directions to
vacate the district court’s opinion and dismiss the
action without prejudice.” The court made clear
that vacating the district court’s opinion was deferral, not a ruling on the merits. “When an appeal
becomes moot, we generally vacate the district
court’s judgment to prevent it ‘from spawning any
legal consequences,’” it explained, quoting language from a precedent case.
The ruling therefore did not mean BLM can start
enforcing the rule, as Earthworks asserted. It in fact
acknowledged that BLM has no intention of doing
so. And it avoided ruling on the authority to regulate that Earthworks said it upheld.
Earthworks fans won’t see things this way, of
course. Disposed toward liberalism, they’ll cheer
legal victory where none exists with the same
righteous gusto they use to promote uneconomic
energy. Soon, though, BLM’s frac regulations will
be gone. Eventually, liberalism will make energy
costs intolerable. And ultimately, experience will
clarify perceptions and political choices.