LINK: The Legal Environmental Assistance Foundation (LEAF) litigated against EPA in the Eleventh Circuit Court of Appeals for allowing hydraulic fracturing without UIC permits in Alabama. In its 1997 decision, the Eleventh Circuit found that EPA interpretations of the UIC laws were in error. The decision confirmed Congress’ intent that human health and Underground Sources of Drinking Water must be protected and that underground injection requires permits. The Eleventh Circuit said:
(PARA. 23) To achieve the statutory purpose of "prevent[ing] underground injection which endangers drinking water sources," 42 U.S.C. § 300h(b)(1), Congress chose the regulatory strategy of requiring that state programs approved under the UIC regulations "shall prohibit ... any underground injection in such State which is not authorized by a permit issued by the State (except that the regulations may permit a State to authorize underground injection by rule)." Id. § 300h(b)(1)(A) (emphasis added). Thus, it is clear that Congress dictated that all underground injection be regulated under the UIC programs. An applicant may receive a permit to conduct underground injection activity if the applicant "satisf[ies] the State that the underground injection will not endanger drinking water sources." Id. § 300h(b)(1)(B). Whether a particular activity ... must be regulated under the UIC programs therefore turns solely on whether such activity falls within the statutory definition of "underground injection." This statutory definition is as follows: "The term "underground injection' means the subsurface emplacement of fluids by well injection. Such term does not include the underground injection of natural gas for purposes of storage." 42 U.S.C. § 300h(d)(1).
The Eleventh Circuit also said that (a) even the temporary subsurface emplacement of fluids through a well is "underground injection"; (b) the emplacement of fluids into the subsurface need not be the primary purpose or principle function of the well; and (c) EPA lacks authority to revise the statutory definition.