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What Does Los Angeles Mean for Local Bans and Moratoria in California?

By Kyle Ferrar, CA Program Coordinator, FracTracker Alliance

California Regulations. The Venoco oil well in downtown Los Angeles.

As confusing as you may think the regulatory structure is in your state (if you are not fortunate enough to be a Californian), just know that California’s regulatory structure is more complicated.  Nothing in California’s recent history has clarified this point like the current debate over “fracking” regulations (hydraulic fracturing, as well as acidizing and other stimulation techniques).  Since the passage of California State Bill 4 (SB-4), there have been significant concerns for self-rule and self-determination for individual communities.  Further complicating the issue are the fracking activities being conducted from the offshore oil rig platforms located in federal waters.  In addition to federal regulation, the California Department of Conservation’s Division of Oil, Gas, and Geothermal Resources is the premier regulatory authority for oil and gas drilling and production in the state.  The State Water Resources Control Board and the Regional Water Quality Control Board hold jurisdiction over the states surface and groundwater resources, while the California Air Districts regulate air quality along with the California Air Resources Board.  It is no surprise that a report published by the Wheeler Institute from the University of California, Berkeley found that this regulatory structure where several state and federal agencies share responsibility is not conducive to ensuring hydraulic fracturing is conducted safely.[1]

A Ban in Los Angeles, CA

The most recent local regulatory activity comes from the Los Angeles City Council.  On Friday February 28, 2014, the City Council voted on and passed a resolution to draft language for a citywide ban of all stimulation techniques.  The resolution calls for city zoning code to be amended in order to prohibit hydraulic fracturing activities in L.A. until the practices are proven to be safe.  A final vote will then be cast to approve the final language.  If it passes, Los Angeles will be the largest city in the United States to ban hydraulic fracturing.   The FracTracker “Local Actions and Regulations Map” has been updated to include the Los Angeles resolution/ordinance, as well as the resolution supporting a statewide ban by the San Francisco Board of Supervisors, the moratorium in Santa Cruz County, and a resolution by the University of California, Berkeley Student Government. See all California’s local actions and regulations in the figure below. Click on the green checked boxes for a description of each action.


Click on the arrows in the upper right hand corner of the map for the legend and to view the map fullscreen.

State Bill 4 Preemption

Since the passage of California’s new regulatory bill SB-4, there has been a lot of confusion and debate whether the new state regulations preempt local jurisdictions from passing their own laws and regulations, and specifically moratoriums and bans.  The county of Santa Cruz has a moratorium on fracking, but it was passed prior to the enactment of SB-4.  Additionally Santa Cruz County is not a hotbed of drilling activity like Los Angeles or Kern.  The team of lawyers representing the county of Ventura, where wells are actively being stimulated, came to a very different conclusion than the Los Angeles City Council.  After reviewing SB-4, Ventura County came to the conclusion that lower jurisdictions were blocked from enacting local moratoriums.  Draft minutes from the December 17, 2013 meeting quote, “The legal analysis provided by County Counsel indicates that the County is largely preempted from actively regulating well stimulation treatment activities at both new and existing wells.  However, the County is required under CEQA to assess and address the potential environmental impacts from such activities requiring a discretionary County approval of new well sites.”[2]

On the other hand, independent analyses of the language in California SB-4 show that the legal-ese does not contain any provision that supersedes related local regulations.  Rather, the bill preserves the right of local governments to impose additional environmental regulations.[3]  The regulations do not expressively comment on the ability of local regulations to pass a moratorium or permanent ban.  Additionally, DOGGR has supported a court decision that the SB-4 language expressly prohibits the state regulatory agency from enforcing the California Environmental Quality Act (according to the Division of Oil, Gas and Geothermal Resources).[4]  As for local measures, a recent article by Edgcomb and Wilke (2013) provides multiple examples of precedence in California and other states for local environmental bans and regulations in conjunction with less restrictive state law.[3]  Of course, any attempt to pass a ban on fossil fuel extraction or development activities where resource development is actively occurring will most likely be met with litigation and a lawsuit from industry groups such as the Western States Petroleum Association.  Industry representatives charge that the ordinance is an unconstitutional “taking” of previously leased mineral rights by private property owners.[5,6]  Pay close attention to this fight in Los Angeles, as there will be repercussions relevant to all local governments in the state of California, particularly those considering bans or moratoriums.

 


[1] Kiparsky, Michael and Hein, Jayni Foley. 2013. Regulation of Hydraulic Fracturing in California, a Wastewater and Water Quality Perspective. Wheeler Institute for Water Law and Policy. Center for Law Energy and the Environment, University of California Berkeley School of Law.

[2] Ventura County Board of Supervisors. December 17, 2013.  Meeting Minutes and Video.  Accessed March 2, 2014. [http://www.ventura.org/bos-archives/agendas-documents-and-broadcasts]

[2] Edgcomb, John D Esq. and Wilke, Mary E Esq. January 10, 2014. Can Local Governments Ban Fracking After New California Fracking Legislation? Accessed March 3, 2014.  [http://californiafrackinglaw.com/can-local-governments-ban-fracking-after-new-california-fracking-legislation/]

[3] Hein, Jayni Foley. November 18, 2013. State Releases New Fracking Regulations amid SB 4 Criticism, Controversy. Accessed February 27, 2014. [http://blogs.berkeley.edu/2013/11/18/state-releases-new-fracking-regulations-amid-sb-4-criticism-controversy/]

[4] Fine, Howard. February 28, 2014. L.A. Council Orders Fracking Moratorium Ordinance.  Los Angeles Business Journal.  [http://labusinessjournal.com/news/2014/feb/28/l-council-orders-fracking-moratorium-ordinance/]

[5] Collier, Robert. March 3, 2014. L.A. fracking moratorium – the difficult road ahead. Climate Speak. Accessed March 4, 2014. [http://www.climatespeak.com/2014/03/la-fracking-moratorium.html]

[6] Higgins, Bill. Schwartz, Andrew. Kautz, Barbara. 2006.  Regulatory Takings and Land Use Regulation: A Primer for Public Agency Staff.  Institute for Local Government.  Available at [http://www.ca-ilg.org/sites/main/files/file-attachments/resources__Takings_1.pdf]

NY State Hydraulic Fracturing Bans Relative to Population

By Karen Edelstein, NY Program Coordinator

According to industry projections, one of the next big frontiers for Marcellus shale-gas development may be in the New York State Counties bordering northern Pennsylvania. However, after more than four years of discussion, two versions of the Supplemental Generic Environmental Impact Statement (SGEIS), and hundreds of thousands of citizen and professional comments on the SGEIS and regulatory framework, the future for hydrofracturing for natural gas in New York  is still highly contested–both in statewide political and locally-based fora.

This map shows the municipalities, as of July 2013, that have enacted hydrofracking prohibitions, represented relative to the population size of those towns. New York State municipalities began invoking home rule laws as early as 2010 to prohibit high volume hydraulic fracturing for natural gas. Primarily implementing zoning tools, these towns found that while they could not regulate against drilling, outright, they could determine appropriate land uses within the town or village boundaries. In this map, bans are shown as red circles, moratoria are shown as lavender, and movements for bans or moratoria are shown in yellow.

As of June 2013, 61 municipalities have passed permanent bans against HVHF, and 111 municipalities have enacted temporary moratoria while they explore the issue more fully, or draft ban legislation.

Within the area of New York State that overlies the Utica Shale, the major population centers, including Buffalo, Rochester, Syracuse, Binghamton, Union, Utica, and Albany have all enacted bans or moratoria. This unprecedented movement is the reaction to concerns of residents who do not desire large-scale energy industrialization, and who have been frustrated with the pace at which the New York State government has been finalizing their generic environmental impact statement, health review, and gas extraction regulations. Large urban centers account for more than 13% of the population in the area over the shale-gas formation that have enacted local prohibitions. These municipalities, along with more than 150 more across the region, (accounting for more than 28% of the region’s total population) have taken precautions to protect the air, water, food, and landscape from the potential risks of hydraulic fracturing that other communities in Pennsylvania, Texas, North Dakota, Wyoming, and beyond, have experienced.  An additional 88 towns (representing over 8% of the population over the Utica Shale formation) have grassroots movements that are spearheading discussions on the need and desire for bans or moratoria. On a town-by-town basis, population-dense centers, as well as rural towns and villages, are exercising democracy to determine whether or not they will risk living with this form of industrial development.

Florida Gas Drilling Developments and Legislation

By Samir Lakhani, GIS Intern, FracTracker Alliance

Florida Aquifers - Source data and map based off of Alan Baker at Florida Department of Environmental Protection.  Acquired Data from: USGS, USDA, FDEP   Source Link: http://www.dep.state.fl.us/geology/programs/hydrogeology/geographic_info_sys.htm

The Floridian Aquifer: Connectivity, Permeability, and Vulnerability

There have been a significant number of enquiries regarding the status of hydraulic fracturing activity in Florida, enough of which garner a FracTracker post. The short answer is that there is minimal drilling activity occurring in Florida—but not for long. It was only a matter of time until gas companies set their gaze on Florida, and her abundance of energy resources. Preparations to drill are already underway. Permits have been filed, equipment is being shipped, and exploratory drilling will begin any minute now. What makes Florida drilling ominous is the real risk for chemical leakage and groundwater contamination.

Imagine this:

It is just another sunny day in sunny Florida, but on this quiet day, two men ring your doorbell. You answer, of course, and find out that these men are from Total Safety, Inc., a company contracted by the independent oil company Dan A. Hughes Company, from Beeville, Texas. They ask you to provide your contact information and any other emergency contact info, just in case disaster strikes at the drill site operating barely 1000 feet from your house. For most of the citizens of Naples, Florida, this is the first they have ever heard of drilling, in their neighborhood. The citizens of Naples, Florida received quite a scare that day. The outrage in the community was so abundant and uniform that these families decided to act out against this development to preserve their piece of paradise. Read More

What makes drilling in Florida so precarious is that porous limestone shelves make up the majority of rock underlying permitted well sites. If any accident were to happen, the leakage of waste and chemicals would be virtually impossible to contain. It then would seep directly into the Florida aquifer which lies beneath the entirety of the state and large sections of Alabama, Georgia, and South Carolina. Maintaining water quality for the Floridan Aquifer is non-negotiable, since it is the primary water source for Savannah, Jacksonville, Tallahassee, Orlando, Gainesville, Tampa, and others. An attempt to clean the aquifer thoroughly would be impossible, and not to mention, prohibitively expensive. Another troubling thought is possible contamination and degradation of the beloved Florida Everglades.

Florida is an interesting case right now; the gas game is still very young. Florida lawmakers have an opportunity to draft real preventative measures, rather than legislation after the fact. Hydraulic fracturing is no new phenomenon, and Florida politicians have the prospect of learning from other states, incorporating relevant ideas and taking their own stance on this issue. Currently, a couple of bills are slowly trudging through the state legislature. The idea is to require a list of chemical disclosures from all active gas drilling companies. Environmentalists claim this bill is a sham, for the companies need to list the chemicals used in drilling, but not the quantities of each. It may be just another half-hearted attempt to show real political action, while retaining a good business relationship with drilling companies. It is unlikely more stringent policies will be successful, however, given that some powers currently in office believe climate change to be a fairy tale.