California court dismisses lawsuit filed by environmental groups to block hydraulic fracturing

On January 13, 2014, a superior court judge for Alameda County, California dismissed a lawsuit filed by several environmental groups based on the provisions of the state’s new hydraulic fracturing law (Senate Bill 4). In this lawsuit, the environmental groups sought an injunction prohibiting any new oil and gas permit approvals until the California Department of Conservation, Division Oil, Gas and Geothermal Resources (“DOGGR”) “complied with its legal requirements to evaluate and mitigate the significant environmental and public health impacts caused by hydraulic fracturing.” Oil and gas industry organizations intervened and moved to dismiss the lawsuit shortly after the new law was passed, arguing that “the regulatory framework adopted in S.B. 4, including new provisions for well stimulation permits and for environmental review, render plaintiff’s claims regarding the Department’s alleged past pattern and practices for environmental review of hydraulic fracturing moot.”

Under S.B. 4, the DOGGR drafted emergency regulations allowing interim hydraulic fracturing activities until permanent regulations are enacted on or before January 1, 2015, as long as the operator provides the required information and certifications under Public Resources Code Section 3161(b). When the conditions are met, the DOGGR “shall allow” fracking and must issue permits.

In its ruling, the Superior Court judge gave the “regulations substantial deference.” The judge stated that “S.B. 4 directs how the DOGGR must proceed regarding its environmental review of applications for hydraulic fracking, and that S.B. 4 is a comprehensive legislative solution that moots the claims in this case” by giving the DOGGR “clear directions to study fracking and to have regulations in place by 1/1/15.” Any “challenge to DOGGR’s policy or practice after 1/1/15 is not ripe for judicial review because the DOGGR has not yet completed its regulations.”

This case is Center for Biological Diversity, Earthworks, Environmental Working Group, and Sierra Club v. California Department of Conservation, Division of Oil, Gas, and Geothermal Resources, and DOES I through X, Case No. RG12652054, In the Superior Court for the State of California for the City and County of Alameda (October 16, 2012). For additional information on this case and S.B. 4, see prior blog reports entitled “California’s new hydraulic fracturing law cited as basis for motion to dismiss” and “California Governor Jerry Brown Signs Strict Hydraulic Fracturing Law”

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This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.