U.S. judge halts fracking plan for federal lands in California; Fracking’s Risks Are Too Obvious to Ignore

Judge blocks Central California oil development over fracking by David R. Baker, September 7, 2016, sfgate

A federal judge on Tuesday blocked the U.S. Bureau of Land Management from opening more than 1 million acres in Central California to oil drilling because the agency did not properly explore the potential dangers of fracking.

U.S. District Judge Michael Fitzgerald sided with environmentalists who argued that the bureau should have addressed the possible impacts of hydraulic fracturing in an environmental impact statement issued as part of the formal process of opening public lands to drilling.

Instead, the 1,073-page impact statement mentioned fracking only three times and never discussed the controversial practice in depth, according to the judge.

He ordered the bureau to prepare a supplemental impact statement that includes fracking before the bureau moves forward on oil and gas development in the area, which includes federal properties in Fresno, Kern, Kings, Madera, San Luis Obispo, Santa Barbara, Tulare and Ventura counties.

… Fitzgerald noted in his decision that by the bureau’s own estimate, fracking would probably be used in 25 percent of wells drilled in the area.

In addition, the bureau had commissioned a survey from the California Council on Science and Technology in 2014 about research on fracking’s potential dangers. And yet the bureau’s environmental impact statement avoided discussing the topic in any detail, the judge wrote.

“To be clear, the act of commissioning the CCST Report itself does not satisfy the Bureau’s obligations to take a ‘hard look’ at the potentially adverse effects of fracking,” Fitzgerald wrote. [Emphasis added]

U.S. judge halts fracking plan for federal lands in California by Terry Wade, September 7, 2016, Reuters

A U.S. judge on Wednesday halted a plan to allow fracking on public lands in central California, saying a federal agency’s environmental plan should have taken a “hard look” at the potential impact of the process.

The ruling, by U.S. District Judge Michael Fitzgerald, was at least the second setback in three years for fracking in California and came as the Obama administration’s rules for hydraulic fracturing on federal lands have been tied up in another court.

The U.S. Department of the Interior’s Bureau of Land Management (BLM), which periodically leases out land to private producers, offered a plan that would have allowed fracking on about a quarter of new wells drilled on some 1 million acres across central California.

The final outcome is not clear as Judge Fitzgerald asked both sides for a further briefing on Sept. 21 as the case enters its remedy phase.

But it could be similar to that a 2013 case in which a federal judge ruled that the BLM violated the National Environmental Policy Act when it issued oil leases in California’s Monterey County without considering the environmental dangers of fracking.

Since that ruling, the BLM has refrained from holding any lease sales in that area until it completes an environmental review of the risks of fracking, said one of the plaintiffs in the cases, the Center for Biological Diversity.

California has long had an oil and gas industry, but it has trailed Texas, Oklahoma and North Dakota in fracking. Industry experts say that stems from regulatory uncertainty and more complex geology in California. [Or because frac’ing and waste injection has been proven to cause earthquakes?]

… A federal judge in Wyoming in June struck down the Obama administration’s rules for fracking on public lands, holding that Congress had not delegated to the BLM the authority to regulate it. That ruling is under appeal.

The BLM’s rules, issued in their final form in March 2015, required companies to provide data on chemicals used in hydraulic fracturing and to take steps to prevent leakage from oil and gas wells on federally owned land.

… The case is No. CV-15-4378 in United States District Court, Central District of California.

Judge Puts Hold on Plan to Open California Lands to Fracking by The Associated Press, September 7, 2016, ABC News

A federal judge on Tuesday tentatively rejected a plan by the federal Bureau of Land Management to open more than 1,500 square miles of lands in central California to oil drilling and fracking.

The BLM failed to take a “hard look” at the environmental effects of the estimated 25 percent of new wells that would be devoted to fracking, U.S. District Judge Michael W. Fitzgerald wrote in the ruling. …

Fitzgerald ruled that the BLM must provide more study on the effects fracking will have in the area. He gave the agency’s attorneys until Sept. 21 to argue why he should not issue an injunction stopping the plan.

The ruling came in a lawsuit brought by a pair of environmental groups, the Center for Biological Diversity and Los Padres ForestWatch.

“This is a huge victory in the fight to protect our water and wildlife from fracking pollution and dangerous drilling,” Brendan Cummings, director of the Center For Biological Diversity, said in a statement. “As California struggles against drought and climate change, we’ve got to end fracking and leave this dirty oil in the ground.”

After-hours phone and email messages left seeking reaction from the Bureau of Land Management were not immediately returned.

Catherine Reheis-Boyd, president of the oil-industry group the Western States Petroleum Association, said in response to the decision that “hydraulic fracturing and other well stimulation treatments in California have undergone rigorous analysis and review, culminating in the most stringent environmental standards nationwide.” [Every jurisdiction claims they have the most stringent and are the best, while secretly deregulating to enable the significant frac harms and pollution]

“Countless independent, state, and federal science-based studies all agree, Boyd added, “Hydraulic fracturing, when regulated, remains a safe technology that provides enormous benefits to American businesses and consumers.” [No regulator anywhere is regulating frac’ing, they’re all deregulating it]

… The judge’s decision says that over one-third of the federally listed threatened and endangered species that live in California can be found on the land that is in the plan, and the land also is home to many groundwater systems that contribute to water supplies for agricultural and residential use. [Emphasis added]

Back to the Fracking Drawing Board for BLM? Fracking’s Risks Are Too Obvious to Ignore by Seth Jaffe, Foley Hoag LLP – Environmental Law, September 14, 2016, jdsupra

Last week, Judge Michael Fitzgerald granted summary judgment to the plaintiffs in a citizen suit alleging that BLM’s Environmental Impact Statement [EIS] prepared to address whether to open certain lands in California to mineral development was inadequate. Judge Fitzgerald concluded that the EIS pretty much completely failed to address the potential risks of fracking and that, as a result, the EIS did not comply with NEPA.

Aside from three isolated and passing references to fracking in the RMP/FEIS, the 1,073-page document makes no mention of fracking at all, let alone a meaningful discussion to inform decisionmakers and the public of the attendant environmental concerns unique to fracking.

BLM made two arguments in response. First, it asserted that there were other references “in the record as a whole.” Judge Fitzgerald rejected this argument, because there was no evidence that BLM had met its obligation to “consider and analyze” the data – Judge Fitgerald’s emphasis.

BLM also argued that there was it was premature to analyze fracking impacts prior to any actual leasing decisions, because that analysis would necessarily be site- and project-specific.

Judge Fitzgerald’s rejection of this argument is the most important part of the decision, because this issue is commonplace in these types of decisions and will recur in other contexts, including those, such as offshore wind permitting, where the ultimate projects are generally considered much more environment-friendly than fracking.

Judge Fitzgerald first noted that there is no expectation that the EIS at this stage would provide a site- or project-specific level of analysis. Instead, he stated:

[T]he purpose of an [EIS] is to evaluate the possibilities in light of current and contemplated plans and to produce an informed estimate of the environmental consequences …. Drafting an [EIS] necessarily involves some degree of forecasting.” (emphasis in original)). Uncertainty about which specific parcels and wells will employ fracking in the future does not obviate the necessity to evaluate the cumulative environmental consequences to the Bureau’s decision to open or maintain over one million acres of federal land in central California to oil and gas activities.

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