The battle over fracking in California isn't over yet. Yes, Sen. Fran Pavley's path-breaking SB4 became law in September, ushering in the nation's toughest fracking regulations. But now comes the implementation phase -- the tricky, all-important steps of actually writing the regs and deciding how they will be carried out.
This week, environmental groups and the state's oil lobby began this battle for real, laying down their competing positions with a spear point of legalese at the core. It's a California fight but its implications are nationwide, as environmentalists and legislators debate whether and how the country's oil and gas fracking boom should be regulated - or simply shut down.
A coalition of environmental NGOs, including Sierra Club, NRDC, Environment California and Environmental Working Group wrote a letter Dec. 4 to state regulators with several demands for do's and don'ts of applying the draft regulations drawn up under SB4. They started by repeating what now has become their common mantra -- demanding an immediate statewide moratorium on fracking, despite Gov. Jerry Brown's frequent signals that he would never do such a thing. They made a number of other perfectly reasonable requests, such as demanding the closure of a loophole that exempts most uses of the dangerous process of acidizing, despite SB4's clear instructions that all acidizing be covered.
At the end of the letter came the bugle call for what's likely to be the battle royale: environmental review. The NGOs insisted that every single application for a new drilling site or new fracking process be obligated to undergo a formal review process under the California Environmental Quality Act, or CEQA:
Finally, we urge that the interim regulations specify that all well stimulation projects fully comply with the California Environmental Quality Act (CEQA) and require a well-by-well CEQA review. Such approach is particularly necessary during the interim period prior to the preparation of the state level EIR and full scientific study.
This, in turn, would allow opponents to file a legal challenge against each drilling permit. The state's oil lobby was clearly expecting this demand, and fired back on the same day. Catherine Reheis-Boyd, president of the Western States Petroleum Association, wrote on the conservative Fox & Hounds website that any well-by-well application of CEQA would be a backdoor way of imposing a de facto fracking ban:
Individuals and organizations who believe that hydraulic fracturing should be banned in California now argue that CEQA’s onerous requirements should be applied to each and every well in California that utilizes hydraulic fracturing. This level of detailed study for every single use of the fracturing technology could amount to a moratorium on a significant amount of new energy production in California – something anti-hydraulic fracturing activists were unsuccessful getting in the Legislature. This is a good example why CEQA needs to be reformed. CEQA can be and has been used by determined opponents to place roadblocks and impose delays on otherwise worthy development projects. In these instances, CEQA has little to do with protecting the environment and more to do with obstruction.
Ultimately, it's up to Governor Jerry Brown, who has said often that he thinks CEQA is over-used and signed a bill this year that would limit some lawsuits under CEQA. His Sept. 20 signing statement for SB4 said the same:
I am also directing the Department of Conservation, when implementing the bill, to develop an efficient permitting program for well stimulation activities that groups permits together based on factors such as known geologic conditions and environmental impacts while providing for more particularized review in other situations when necessary.
So Brown's response will almost certainly be to reject the environmental groups' request. But that may only be the start of it. Chances seem pretty good that the NGOs would file a lawsuit in response, seeking a court order requiring a well-by-well application of CEQA. In other words, a lawsuit about the right to file lots more lawsuits. Lawyer up, everyone!