Public concern over the environmental impact of hydraulic fracturing, or fracking, is on the rise. Although the practice has been around for decades, recent public pressure is pushing states to take a closer look at this energy extraction method. In California, the state agency responsible for regulating oil and gas development, California Department of Conservation, Division of Oil, Gas and Geothermal Resources (“DOGGR”), has turned a blind eye towards fracking for years. Although the division long maintained the position that it did not know anything about fracking in the state, it recently conceded that some fracking does exist and has been going on for decades. However, DOGGR does not know the extent of its use because the agency does not keep track of fracking projects and people using the method do not have to report to the division.
California’s DOGGR may have to face its fracking policies in court. The Center for Biological Diversity, Earthworks, Environmental Working Group and Sierra Club are named plaintiffs in a complaint filed on October 16, 2012 alleging that DOGGR issued permits for oil and gas extraction, which may include fracking, without analyzing the potential impacts, as required by California Environmental Quality Act (“CEQA”).
Petitioners’ complaint asserts that ongoing fracking operations have significant health and environmental impacts, including the contamination of domestic and agricultural water supplies, the use of massive amounts of water in a region that faces serious water deprivation dangers, the emission of hazardous air pollutants, and the potential for seismic activity. Additionally, petitioners claim that the agency’s failure to regulate this practice could lead to irreparable harm to public health and the environment.
The complaint further alleges that the water injected through the fracking process contains chemicals that are known carcinogens and are regulated by Congress under the Safe Drinking Water Act and the Clean Air Act . Although the exact chemicals injected in the process are concealed as proprietary information, a congressional investigation found that products containing the chemical diesel, are oftentimes used, posing the risk of contaminating groundwater sources.
The California Environmental Quality Act is designed to inform governmental decision makers and the public about the potential, significant environmental effects of proposed activities, identify the ways that environmental damage can be avoided or significantly reduce and prevent significant, avoidable damage to the environment by requiring changes in projects through the use of feasible alternatives or mitigation measures. If a proposed action is determined to be a “project,” the agency must prepare a preliminary study, and may be required to prepare an Environmental Impact Report that identifies all significant effects, alternatives and potential mitigation measures. To date, the agency has circumvented the analysis requirement by fracking projects as “Minor Alterations to Land,” or “Existing Facilities,” which are not “projects” and therefore, are exempted from CEQA.
The conservation groups are seeking a declaratory judgment that DOGGR’s failure to comply with CEQA is illegal, as well as injunctive relief to prohibit DOGGR from approving additional hydraulic fracturing permits until the impact assessments are conducted.
Fracking is also getting attention outside of the courtroom. After public and political pressure led DOGGR to recognize that fracking has been going on for decades, the agency agreed, earlier this summer, to draft regulations regarding fracking. Additionally, California Assembly Member Betsy Butler proposed Assembly Bill 972, which would impose a moratorium on any fracking activity until more information is obtained.
The people of California are focusing their attention on fracking, and the Division will not be able to avoid regulating it for much longer. The General Assembly, the people of California and even the Division itself have been tipped off to the potential damaging effects of fracking, and it is time for the Division to take a hard look at its practices. Since the legislature has not made a final statement and the Division itself is working out regulations, it is unclear if the court is the proper venue to address this dispute.
Written by Erica Pincus, GIELR staff