FROM THE WELL UP: A CALIFORNIA COUNTY CONFRONTS FRACKING AT THE POLLS
By Malia McPherson, Stanford Environmental Law Journal
On November 4, 2014, the voters of San Benito County passed Measure J, a voter initiative banning hydraulic fracturing (‘fracking’) and all other high-intensity petroleum operations within county lines. Under California law, only a subsequent voter initiative can overrule this fracking ban. While it is not the first county or city within California to take a stand against fracking, San Benito’s path to a successful ballot initiative was unique. Despite being dramatically outspent in the run-up to the election, the San Benito anti-fracking coalition San Benito Rising defeated industry interests through a simple strategy of basic grassroots organization. The movement was largely leaderless, it was community focused, and it represented both minority and majority interests. How did it succeed? Given the potential risks posed by fracking, and the legal context that left a regulatory ‘gap’ for Measure J to fill, the San Benito experience shows that it is indeed possible for community-centered lawyering and the voter initiative process to protect community environmental integrity on a precautionary basis against encroachment from outside interests.
THE RISKS POSED BY FRACKING
“Fracking” is the collective and colloquial term for the use of high volume hydraulic fracturing for fossil fuel extraction. Its purpose is to extract oil and gas from rock formations deep underground (in deep shale formations) with high-pressure ‘fracking fluids’. These fluids contain “significant amounts of water, sand, and chemicals” that fracture the rock layers to free the trapped oil or gas so it can be pumped out.
Although fracking as a process has been in use for decades, its environmental consequences remain significant. First, fracking is an intensive activity that requires large access roads, acres of clearing sites, drilling rig access, and storage and processing structures. Once a well is drilled, millions of gallons of water are brought into the site and mixed with chemical agents, sand and emulsifiers. Although the fracking fluid is 98% water, the oil and gas industries have reported that between 2005 and 2009, 29 chemicals were used in fracking fluids that were “(1) known or possible human carcinogens, (2) regulated under the Safe Water Drinking Act for their risks to human health, or (3) listed as hazardous air pollutants under the Clean Air Act.” These fluids have to be kept out of normal watersheds in surface containments, or be sequestered underground – in either location these fluids have the potential to “eventually . . . migrate into and contaminate groundwater sources for waterways and drinking supplies.”
Separate from the concerns of storage and disposal of contaminated fracking fluids, there are risks with “propping” substances. The oil and gas industries use silica gels to “prop” open wells before water injection.  If these gels are improperly handled, they can become airborne, enter a person’s lungs, and cause incurable lung diseases. Further indirect effects can come transporting oil and gas away from the fracking site, which can be a way for accidents and spills to occur. Finally, in California there are also concerns about fracking’s significant water use during drought conditions, and about the disposal of wastewater, which has been linked to small-scale earthquakes. Cyclic steam injections used in unconventional oil and gas recovery also carry similar risks – millions of gallons of water are required for steam heating, leading to problems of aquifer depletion and contaminated wastewater.
LEGAL CONTEXT: THE REGULATORY GAP IN CALIFORNIA
1. The Federal and State Regulatory ‘Patchwork’
The risks posed by fracking are worrisome in part because there is no national regulatory framework governing it, only a “patchwork” of inconsistent regulations that leave open the potential for spills, contamination and other ill effects throughout the country. Although there are numerous other federal environmental regulations that explicitly preempt state law to ensure national uniformity, prior to the passage of Measure J in 2014, the federal government had taken little action to regulate fracking. Despite extensive federal environmental legislative activity from 1969 through the 1980s, fracking operations and “its roughly thirty affiliated and component processes” fell through the cracks. This trend continued in 2005 when Congress explicitly exempted most types of fracking from the federal Safe Water Drinking Act. Despite that statute’s goal of protecting public and municipal water supplies, the impacts of “underground injection and disposal of hazardous substances” on water quality were ignored.
More recently, the federal government started taking small steps toward regulating fracking. These included announcing a long-term research plan to explore the impacts of fracking, finalizing new Clean Air Act rules to limit emissions of some air pollutants, and adopting regulations that create basic fracking standards for drilling on public lands. These drilling standards, however, do not apply to private or state-owned land.
Recent California state legislation on fracking applies to operations throughout the state, but takes somewhat of a ‘light touch’ approach to regulating drilling operations. Senate Bill 4 (SB 4), passed in 2013, is basically a type of permitting and disclosure scheme in which fracking operations can continue so long as operators meet basic requirements. These requirements include groundwater and air quality monitoring, public disclosure of all chemicals used, and neighbor notification before well stimulation takes place. At the time of its passage, critics were upset that SB 4 did not go much further than public disclosure and neighborhood notification of dangerous drilling operations; many environmental groups had sought a full ban or more strict regulation.
Most importantly, SB 4 does not expressly preempt local law; instead, it contains provisions that “explicitly preserve local authority.” A more robust state law may have stopped local initiatives from taking root – two separate district courts have found that state law preempts the ability of local or county governments to ban fracking. A Colorado district court held that a voter-approved fracking ban in Longmont was preempted by the Colorado Oil and Gas Conservation Act, and a New Mexico district court found a Mora County Ban preempted by state law.
2. Options for Local Governments – Room for Community-Based Lawyering
Local and county governments can step into the regulatory vacuum left by an incomplete patchwork of state and federal regulations. As authorized in the state of California, cities and counties in particular have great power to control the extent of oil and gas development within their jurisdiction. First, the state Constitution broadly provides that local governments “may make and enforce all ordinances and regulations in respect to municipal affairs…. City charters … with respect to municipal affairs shall supersede all law inconsistent therewith.” Second, the California Public Resources Code confirms that local authorities retain the power to “enact and enforce laws and regulations regulating the conduct and location of oil production activities, including … zoning,… public safety, nuisance … [and] noise …” California cities by extension have the inherent authority to ban oil and gas development through their zoning powers.
In addition to the ability of local governments in California to pass legislation aimed at fracking concerns, California local governments have a unique voter initiative process. From its long history with voter initiatives, California is considered “the leader in direct democracy.” In California, the initiative is not a right granted by the Constitution, but rather a “power reserved” by the people. This process is certainly not without limits; voter initiatives are subject to numerous limitations and requirements, including constitutional and conflict of laws rules, filing and notice requirements, signature thresholds,, and other ballot access regulations. But if the initiative appears on the ballot and receives the approval of a majority of voters, it becomes law after ten days, after which it cannot be repealed or amended except by another voter initiative. Because of the procedural requirements and political mobilization necessary to mount an initiative campaign, issues settled by a successful initiative are particularly difficult to overturn later. This is especially the case for local level initiatives focused on community concerns such as land use, governance, and safety, which tend to garner more voter turnout than state-level propositions.
Practically, and as seen in San Benito County, the voter initiative process can also offer new channels for community-based organizations to ensure not just direct, but also equitable democracy. Through inclusive ballot initiative campaigns, community-based organizations can seek (1) more community input into the formulation of public policy and (2) community participation throughout the decision-making process. In doing so, organizations can enlist wide swaths of the voting public in participatory coalitions, propagate messages through social networks, aggregate the interests of many community members, and both create and employ social capital. San Benito Rising, the organization who led the Measure J campaign, used many of these broad techniques for community-based organizing to step into the regulatory gap through the initiative process.
MEASURE J IN SAN BENITO COUNTY
1. Context and Motivations
The San Benito fracking ban was motivated by natural gas deposits found relatively recently within the Monterey Shale, a 1,750-mile shale gas formation running down the center of California whose extraction was seen by some to be a potentially “enormous bonanza.” San Benito was considered a “frontline county” before Measure J passed because drillers had already started extracting oil and gas from the region and more exploration was underway in 2013. Without federal or state regulatory protection before the passage of Measure J, San Benito County may have been a place where environmental harms could have gone unchecked. With a small total population, a significant portion of whom are migrant farm workers, and vast acres of undeveloped agricultural lands, San Benito County is “out of sight and out of mind” for many state politicians.
Skeptical that state regulations and regulators would adequately protect their interests, a small group of about twenty members of the San Benito County community banded together to form San Benito Rising. Early founders of San Benito Rising raised concerns that “[r]egulations are just a way of giving the industry a road map to frack. States like Pennsylvania and Texas have regulations, but that hasn’t stopped the [environmental impacts of the] process. It’s only made a mess. We realized we needed to ban the process entirely” to protect economically vital local groundwater resources. Representatives of the group claimed they were not looking to role models of “environmental activism” within California for guidance, but rather to the many localities in New York that hired lawyers to draft local legislation. With small amounts taken from their retirement funds, the early founders of San Benito Rising hired Shute, Mihaly & Weinberger LLP (SMW), a San Francisco law firm noted for its expertise in land use and community environmental issues, to help draft the legislation.
2. The Mechanics of Measure J
Lawyers from SMW carefully drafted Measure J’s text to prohibit “the use of any land within the County’s unincorporated area for “High-Intensity Petroleum Operations.” The initiative defined such operations to include “well stimulation treatments (such as hydraulic fracturing, also known as fracking, and acid well stimulation treatments) and enhanced recovery wells (such as cyclic steam injection).” Measure J’s general purpose was to “protect San Benito County’s water quality and supplies, agricultural lands, environmental quality, rural character, scenic vistas, and quality of life.” This fell directly under the recognized local powers of zoning and public safety regulation. Rather than banning “all oil and gas extraction,” it banned all extraction activities in residential areas and stimulation treatments, except for vested interests. The initiative allowed parties with vested rights to such operations to seek approval from the planning commission for up to three years. It also allowed the San Benito County Board of Supervisors to grant exceptions to the initiative, if not doing so would constitute an unconstitutional taking. Finally, for protection, it allowed severability if any portion was deemed invalid. Unlike many voter initiatives in California, and perhaps as a result of its careful drafting, Measure J was fortunate to avoid any pre-election litigation challenge. Though they had invested their own personal funds in the effort from the beginning, the leaders of San Benito Rising knew that their movement was not about themselves and would only succeed if it could engage and involve the larger countywide community.
3. The Measure J Campaign
San Benito Rising departed from several common approaches for California ballot initiatives: by using volunteers instead of paid signature gatherers, by focusing on voter education, and by having candid, largely unscripted discussions about the complexities surrounding fracking. San Benito Rising did not formally associate with any political parties or hire campaign consultants.
During the signature collection stage, several messages about the initiative helped expand their base of support beyond environmental protection to include those concerned about: (1) the future of the county and how fracking would affect agricultural interests, (2) the business community’s interests in avoiding extractive mining impacts, and (3) the general importance of water to sustain local life and families. Because of this, San Benito Rising was able to attract prominent farmers, ranchers, and even Chamber of Commerce members to support a “green” initiative. Perhaps most impressively, the environmental group was able to get support from the plumbers union and the state employees association. Key support also came from the Latino community; Luis Valdez, regarded as the “father of the Chicano theater in the United States,” vocally and prominently supported the movement. He helped organize events such as the “Latinos United Against Fracking Conference” in San Benito. Additionally, prominent teachers with connections to former students and school districts became very involved. Younger high school students also became allies and took to social media: “Hay Bailers Against Fracking” (a title invoking the local high school mascot) became the Facebook platform to unite the community., San Benito Rising fundamentally tried to be “as broad as possible.” By the time their initiative was turned into the county elections office for certification on April 22, 2014, San Benito Rising had collected over 4,000 signatures. The signatures were collected in merely fourteen days, which may have set a state record.
Lastly, the oil and gas industry marketing efforts deployed to oppose Measure J may actually have worked in favor of the initiative. As soon as “outside money” started flowing into community advertising – bringing repetitive television commercials, radio coverage, and mailings to San Benito County – the community became skeptical of its message. Many of the groups had opaque “insider sounding names” such as “San Benito United for Energy,” which also frustrated community members. Oil companies, including Chevron, Inc. and Occidental Petroleum, spent at least $6.7 million in the election cycle to oppose fracking bans. In contrast, San Benito Rising raised and spent only $120,000.
San Benito Rising’s inclusive and informative process succeeded in building consensus and generating interest through Election Day. The leader of Measure J’s opposition even called the movement a “great grassroots campaign,” which succeeded in bringing out an extremely high voter turnout for an the off-year election (58.9%). The initiative found support from voters of all economic backgrounds, and enjoyed its strongest support from Latinos (with over 73% of Latino voters supporting the measure). After the results were tallied, San Benito Rising was proud and optimistic for the future: “I think it means that people actually have more power than the biggest corporations that when you get a community involved in something – that has tremendous force. I think that the millions of dollars spent by the industry was really a sign of their fear more than anything else.”
Because of the strength of its initiative process, California is a unique state that enables environmental interests to prevail at the local level. While it may often seem that one small county alone is powerless to control its destiny, inclusive voter initiatives can help tip the scale back in favor of community-based decision-making. San Benito County became the first county to ban fracking in California, and presents at least anecdotal guidance for communities who desire a fracking-free future. While the economic interests of a particular region may provide the best guide to ultimate success, because of Measure J, the oil and gas industry no doubt will approach the voter initiative process with greater caution in the future. San Benito County’s Measure J experience should make communities hopeful but realistic about the possibility of using direct democracy and grassroots organizing in what may otherwise be a David and Goliath struggle to safeguard community environmental interests.
 Elizabeth Ridlington & John Rumpler, Fracking by the Numbers 8 (Envir. Am., Oct. 2013), http://www.environmentamerica.org/sites/environment/files/reports/EA_FrackingNumbers_scrn.pdf.
 Michael Murza & Richard M. Frank, Senate Bill 4: A Past and Future Look at Regulating Hydraulic Fracturing in California, 4 (U.C. Davis, June 2014), https://law.ucdavis.edu/centers/environmental/files/CELPC-SB4-report.pdf.
 Emily C. Powers, Fracking and Federalism: Support for An Adaptive Approach that Avoids the Tragedy of the Regulatory Commons, 19 J.L. & Pol’y 913, 919 (2010-2011).
 Murza & Frank, supra note 2, at 9 (stating that the amount used is estimated between 2 to 5 million gallons of water per well stimulation);
 Id. at 8.
 Powers, supra note 3.
 Murza & Frank, supra note 2, at 9.
 Id. at 10.
 Id. at 4.
 Protect San Benito, http://www.protectsanbenito.org/uploads/2/5/9/2/25924404/cyclic_steam_fact_sheet_.pdf (last visited June 27, 2015).
 Mfon Etukeren, Hydrofracking and Environmental Justice: A Proposal to Lower the Threshold for Evidence of Discriminatory Impact in Title VI Complaints, 4 Seattle J. Envtl. L. 51, 53 (2014).
 See Philip Weinberg & Kevin Reilly, Understanding Environmental Law, section 1.04 (Lexis Nexis, 2007) (noting that the Clean Air Act explicitly preempts state law with regards to emission control system for new cars and for the labeling of pesticides).
 Coral Davenport, New Federal Rules Set for Fracking, N.Y. Times (March 20, 2015), http://www.nytimes.com/2015/03/21/us/politics/obama-administration-unveils-federal-fracking-regulations.html?_r=0.
 Powers, supra note 3, at 913-14.
 Id. at 939.
 Dr. Saby Ghoshray, Charting the Future Trajectory for Fracking Regulation: From Environmental Democracy to Cooperative Federalism, 38 T. Marshall L.Rev. 199, 204 (2013).
 Lawrence G. Cetrulo, Toxic Torts Litigation Guide, § 44:10 (West 2014) (noting that the rules don’t cover oil wells or set limits on methane release).
 Davenport, supra note 15.
 Murza & Frank, supra note 2.
 Michael N. Mills & Shannon L. Morrissey, California’s Efforts to Regulate Hydraulic Fracking Stimulates Litigation Flurry, ABA: Energy & Nat. Res. Comm., 9 (March 2015), http://www.americanbar.org/content/dam/aba/publications/nr_newsletters/enrl/201503_enrl.authcheckdam.pdf.
 The Times Editorial Board, A Fracking Bill Gone Bad, L.A. Times (Sept. 12, 2013), http://www.latimes.com/opinion/editorials/la-ed-fracking-california-sb4-20130912-story.html#ixzz2ncadpe8H.
 Hollin Kretzmann & Kassie Siegel, Local Governments and the Power to Ban Fracking and Other Forms of Unconventional Oil and Gas Activity in California, Ctr. Bio. Diversity (Jan. 31, 2014), http://www.cafrackfacts.org/wp-content/uploads/2013/11/Local-Governments-and-the-Power-to-Ban-Fracking-January-201412.pdf. See also Cal. Pub. Res. Code § 3690 (an existing law predating SB 4 that explicitly states that state-wide oil and gas regulations “shall not be deemed a preemption by the state of any existing right of cities and counties to enact and enforce laws and regulations regulating the conduct and location of oil production activities…”); Murza & Frank, supra note 2, at 35 (stating that “. . . author Senator Pavley and the legislation’s supporters have made clear that SB 4 should not be considered the definitive and final statement governing fracking in California. To the contrary, SB 4 permits a continuing role for California local governments that wish to enact more stringent fracking regulations or bans than the statewide provisions mandated by SB 4”).
 David R. Baker, To Fight Fracking Bans, Oil Firms Heavily Outspend Environmentalists, S.F. Gate (Nov. 2, 2014, 7:03 AM) (discussing that Santa Cruz County in 2013 and the Los Angeles City Council in 2014 both adopted a moratorium on fracking in response to statewide inaction), http://www.sfgate.com/politics/article/To-fight-fracking-bans-oil-firms-heavily-5864369.php#photo-7082245.
 See e.g., Colo. Oil and Gas Ass’n v. Longmont, 20th Jud. Dist., 2013-cv-63, order 7/24/14 (the decision is being appealed and an appellate ruling is expected later this year; SWEPI, LP v. Mora County et al., Case No. 1:14-cv-00035-JB-SCY, filed Jan. 19, 2015.
 Kretzmann & Siegel, supra note 27.
 Id. (quoting Cal. Const. art. XI, sec. 5).
 Cal. Pub. Res. Code § 3690 (West 2015).
 See Hermosa Beach Stop Oil Coalition v. City of Hermosa Beach, 103 Cal. Rptr. 2d 447, 462 (Cal. App. Ct. 2001) (stating that the enactment of a city ordinance prohibiting exploration for and production of oil, unless arbitrary, is a valid exercise of the municipal police power).
 Tracy M. Gordon, The Local Initiative in California, Pub. Pol’y Inst. Cal 4, 8 (2004), http://www.ppic.org/content/pubs/report/R_904TGR.pdf (observing in Note 3 that the exercise of initiative power might have been illegal under the city charters because the state didn’t authorize explicitly permit charters to adopt the initiative and referendum until 1902).
 Cal. Const. art. 4, § 1 (“[t]he legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the people reserve to themselves the powers of initiative and referendum.”).
 Gordon, supra note 34, at 14.
 Id. at 9-11.
 Cal. Elec. Code §§ 9100-9126; 9200-9226 (2015).
 Gordon, supra note 34, at 11.
 Id. at 12.
 Using Municipal Zoning to Limit or Ban Fracking in California Communities, Earthjustice: Teleconference, http://earthjustice.org/features/using-municipal-zoning-to-limit-or-ban-fracking-in-california-communities (last visited June 27, 2015).
 Gordon, supra note 34, at iii.
 Nancy C. Carre, Environmental Justice and Hydraulic Fracturing: The Ascendancy of Grassroots Populism in Policy Determination, 4 J. Soc. Change 1, 6 (2012).
 Louis Sahagun, U.S. officials cut estimate of recoverable Monterey Shale oil by 96%, L.A. Times (May 20, 2014 9:00 PM), http://www.latimes.com/business/la-fi-oil-20140521-story.html.
 Kate Woods,“Protect Our Water” Initiative Qualifies for November Ballot, Benito Link, (May 1, 2014, 2:13 PM), http://benitolink.com/%E2%80%9Cprotect-our-water%E2%80%9D-initiative-qualifies-november-ballot.
 Julie Morris, Oil Exploration to Proceed in South County, San Benito Link (June 5, 2013, 10:32 AM), http://benitolink.com/oil-exploration-proceed-south-county.
 Telephone Interview with Andrew Hsia-Coron, San Benito Rising (May 4, 2015).
 Deborah Luhrman, San Benito Rising Files Anti-Fracking Initiative, Edible Monterey Bay (May 17, 2014), http://ediblemontereybay.com/blog/san-benito-rising-files-anti-fracking-initiative.
 Jason Hoppin, Fracking Stirs Debate in San Benito County, Santa Cruz Sentinel News (April 30, 2014, 12:01 AM), http://www.santacruzsentinel.com/general-news/20140430/fracking-stirs-debate-in-san-benito-county.
 Hsia-Coron, supra note 49.
 San Benito County Code § 25.29.161.
 San Benito County, Proposed Measure J (2014), http://www.foodandwaterwatch.org/sites/default/files/frack_actions_sanbenitocountyca.pdf.
 Id. at Policy 41.
 Id. at Section 5.
 Id. at Section 8.
 Citadel Drops Measure J Lawsuit Against County, San Benito Link (April 6, 2015, 8:21 PM) (describing post-passage litigation effort), http://benitolink.com/citadel-drops-measure-j-lawsuit-against-county.
 Hsia-Coron, supra note 49.
 Kate Woods, Luiz Valdez Speaks on the Issue of Fracking, San Benito Link (Oct. 2014), http://benitolink.com/multimedia/luis-valdez-speaks-issue-fracking.
 Hsia-Coron, supra note 49.
 Hsia-Coron, supra note 49.
 Lauren Sommer, Anti-Fracking Activists in California Take Fight to County Ballots, KQED: Science (October 10, 2014), http://ww2.kqed.org/science/2014/10/10/anti-fracking-activists-in-california-take-fight-to-county-ballots.
 Hsia-Coron, supra note 49.
 Baker, supra note 28.
 Kollin Kosmicki, Measure J Backers Reflect on Historic Victory, Hopes for “Movement,” San Bentito County Today (Nov. 5, 2014, 12:22 AM), http://www.sanbenitocountytoday.com/news/local_politics/measure-j-backers-reflect-on-historic-victory-hopes-for-movement/article_51cc6342-64c4-11e4-aa39-001a4bcf6878.html.
 Hsia-Coron, supra note 49.
 At the same 2014 election, Santa Barbara County also voted on an anti-fracking measure (Measure P), also drafted by lawyers from SMW, and put forward by the Santa Barbara County Water Guardians. Despite the close similarities between the measures, its liberal voting history, and the fact that it was the site of an infamous 1969 oil spill in the Pacific Ocean, Measure P failed in Santa Barbara. Though the politics surrounding Measure P were complex, a few explanations can be found: 1) Santa Barbara is a larger county by population and has a larger oil industry footprint than San Benito, meaning that the general feelings towards the oil and gas industry were not as consistently negative; 2) Misconceptions about the mechanics of Measure P fed confusion about its applicability and effects, eroding support; and 3) The coalition formed in Santa Barbara was less successful at finding allies in other sectors of the economy and at convincing working class voters that their economic interests were served by Measure P. See generally, Darcel Elliot, The Healthy Air and Water Initiative to Ban Fracking, Acidizing and Steam Injection will be “Measure P,” Santa Barbara Indep. (Jun. 26, 2014), http://www.independent.com/releases/2014/jun/26/healthy-air-and-water-initiative-ban-fracking-acid; Mike Mills, Two County Fracking Prohibitions Succeed While One Fails: What the Voting Results in Santa Barbara, San Benito, and Mendocino Counties Mean for the Oil & Gas Industry in California, Stoel Rives, LLP: Envir. L. Blog (Nov. 6, 2014), http://www.californiaenvironmentallawblog.com/oil-and-gas/two-county-fracking-prohibitions-succeed-while-one-fails-what-the-voting-results-in-santa-barbara-san-benito-and-mendocino-counties-mean-for-the-oil-gas-industry-in-california/; Keith Carls, Measure P Oil Ban Soundly Defeated (Nov. 5, 2014, 10:35 AM), http://www.keyt.com/news/measure-p-going-down-to-defeat/29548048. See also Sommer, supra note 73.