Thus far, California has rebuffed attempts at instituting a statewide ban on hydraulic fracturing. In fact, several localities in California have also rejected fracking bans. Nonetheless, on Thursday, several environmental groups petitioned California Governor Edmund G. Brown to impose an immediate moratorium on hydraulic fracturing and other methods of well stimulation in the state.
The petitioners claimed that such an action was necessary to protect the public from an imminent threat to its health and safety. According to the petitioners, fracking causes pollution, contaminates aquifers, relies on harmful chemicals, and increases the likelihood of earthquakes. The petitioners also blame hydraulic fracturing for climate change. In fact, the petitioners attempt to blame fracking for several illnesses suffered by California residents.
Petitioners claim that their petition is supported by several scientific studies. These studies, Petitioners allege, demonstrate that fracking is dangerous. In addition, petitioners point to the fracking ban enacted by New York Governor Andrew Cuomo after the state conducted a study of the alleged harm caused by hydraulic fracturing.
The petitioners take issue with the environmental studies conducted by California and the state’s current regulations. They contend that California should have completed its study by now. Moreover, the petitioners argue that the latest report released by the state is insufficient and flawed. The petitioners also claim that the state’s current regulations for wastewater disposal are unlawful and fail to properly protect California residents.
Read the petition.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Johnjerica Hodge (johnjerica.hodge@nortonrosefulbright.com or 713 651 5698) from Norton Rose Fulbright's Energy Practice Group.
Showing posts with label California. Show all posts
Showing posts with label California. Show all posts
Los Angeles well stimulation ban questioned
Earlier this year, the Los Angeles City Council passed a motion to ban any oil and gas well stimulation or the use of wells for waste disposal injection. After passing the motion, the City Council authorized the city attorney to write the ordinance with the assistance of the Department of City Planning (DCP).
Similar to other proposed drilling bans, however, the implementation process for the prohibition has not gone smoothly. In fact, the DCP has advised the City Council against prohibiting oil and gas operations. According to the DCP, the City Council should hire an expert and merely update the city’s zoning and land use ordinances.
The DCP expressed concern over the passage of the city ban in light of statewide legislation regulating oil and gas operations—SB 4—and the city’s lack of experience in this field. In support of its argument, the DCP cited the lawsuit filed against the Compton City Council regarding a prohibition similar to the one envisioned by the Los Angeles City Council.
Several commentators have spoken out in support of the DCP. Some commentators have pointed to the severe economic consequences of enacting the proposed ban—specifically, the loss of tax revenue. Moreover, Los Angeles would likely face multiple lawsuits similar to those filed against the city of Denton.
Several commentators have spoken out in support of the DCP. Some commentators have pointed to the severe economic consequences of enacting the proposed ban—specifically, the loss of tax revenue. Moreover, Los Angeles would likely face multiple lawsuits similar to those filed against the city of Denton.
For instance, the proposed prohibition could be preempted by state law. In addition, a number of residents in the city would lose a significant amount of revenue and could therefore sue Los Angeles alleging unconstitutional takings under state and federal law. Commentators have also highlighted the overly broad language in the city council’s motion.
Read the DCP’s report.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Johnjerica Hodge (johnjerica.hodge@nortonrosefulbright.com or 713 651 5698) from Norton Rose Fulbright's Energy Practice Group.
Read the DCP’s report.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Johnjerica Hodge (johnjerica.hodge@nortonrosefulbright.com or 713 651 5698) from Norton Rose Fulbright's Energy Practice Group.
Fracking bans may thrust California localities into contentious legal battle
On November 4th, Denton became the first city in Texas to enact a ban against hydraulic fracturing. The next day, several members of the oil and gas industry and the state of Texas sued Denton, alleging that the ban was invalid. It is possible that other parties are also planning on suing Denton over the fracking ban. Mendocino and San Benito counties may be following in Denton’s footsteps.
Mendocino and San Benito counties passed legislation on November 4th prohibiting hydraulic fracturing. A fracking ban was on the ballot in Santa Barbara county, but the ban was defeated. Observers have noted that unlike Santa Barbara, oil and gas operations in Mendocino and San Benito were not extensive. Thus, the impact of the bans is expected to be minimal. Mendocino and San Benito counties are not the only localities to adopt anti-fracking legislation. Several localities throughout California have enacted similar measures.
The anti-fracking measures will likely be challenged by oil and gas operators and landowners. It is possible that the state of California may also sue the localities just as Texas responded to the Denton fracking ban. The Western States Petroleum Association (WSPA) has already filed suit against the city of Compton’s fracking moratorium. In fact, although the lawsuit is still ongoing, Compton has withdrawn the moratorium.
The fracking bans can be challenged on several grounds. First, opponents of the fracking bans can argue that the local measures are preempted by state law. In 2013, California enacted Senate Bill 4—a bill that permits oil and gas operations to continue while the state studies the potential impact of hydraulic fracturing on the environment. State lawmakers attempted to pass a moratorium on drilling until the studies were completed, but the bill was defeated. Second, parties challenging the bans can argue that the anti-fracking measures constitute unconstitutional takings. The WSPA raised both arguments in its suit against Compton. Observers have noted that a takings claim brings the added dimension of a potentially significant verdict against the counties. Many argue that localities may rescind their fracking bans rather than risk incurring a large financial obligation.
Read Senate Bill 4.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Johnjerica Hodge (johnjerica.hodge@nortonrosefulbright.com or 713 651 5698) from Norton Rose Fulbright's Energy Practice Group.
Mendocino and San Benito counties passed legislation on November 4th prohibiting hydraulic fracturing. A fracking ban was on the ballot in Santa Barbara county, but the ban was defeated. Observers have noted that unlike Santa Barbara, oil and gas operations in Mendocino and San Benito were not extensive. Thus, the impact of the bans is expected to be minimal. Mendocino and San Benito counties are not the only localities to adopt anti-fracking legislation. Several localities throughout California have enacted similar measures.
The anti-fracking measures will likely be challenged by oil and gas operators and landowners. It is possible that the state of California may also sue the localities just as Texas responded to the Denton fracking ban. The Western States Petroleum Association (WSPA) has already filed suit against the city of Compton’s fracking moratorium. In fact, although the lawsuit is still ongoing, Compton has withdrawn the moratorium.
The fracking bans can be challenged on several grounds. First, opponents of the fracking bans can argue that the local measures are preempted by state law. In 2013, California enacted Senate Bill 4—a bill that permits oil and gas operations to continue while the state studies the potential impact of hydraulic fracturing on the environment. State lawmakers attempted to pass a moratorium on drilling until the studies were completed, but the bill was defeated. Second, parties challenging the bans can argue that the anti-fracking measures constitute unconstitutional takings. The WSPA raised both arguments in its suit against Compton. Observers have noted that a takings claim brings the added dimension of a potentially significant verdict against the counties. Many argue that localities may rescind their fracking bans rather than risk incurring a large financial obligation.
Read Senate Bill 4.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Johnjerica Hodge (johnjerica.hodge@nortonrosefulbright.com or 713 651 5698) from Norton Rose Fulbright's Energy Practice Group.
Fracking dominates the November ballot
One of the most highly debated issues during the November election was the question of whether localities have the authority to enact fracking bans. Several cities throughout the country have attempted to enact prohibitions against hydraulic fracturing with varying degrees of success. Denton, Texas has become one of the latest cities to consider such a ban.
On November 4th, Denton residents voted on whether the city should enact a ban against hydraulic fracturing within the city limits. The measure passed with 59 percent of Denton residents voting in favor of the measure and 41 percent voting against it. The Denton City Council considered the measure initially; however, rather than enact the ban itself, the Council opted to place the ban on the ballot for the November elections. Denton currently has a moratorium in place banning drilling until January 20, 2015.
Several cities in California and Ohio also attempted to pass local bans against hydraulic fracturing. Specifically, fracking bans were on the ballot in the following localities: Santa Barbara County, California; San Benito County, California; Mendocino County, California; Athens County, Ohio; Gates Mills, Ohio; Kent, Ohio; and Youngstown, Ohio. Most of the proposed fracking bans were defeated. The majority of voters in San Benito County and Mendocino County voted in favor of the ban, but the anti-fracking measure was defeated in Santa Barbara. The anti-fracking measure was defeated in Gates Mills, Kent, and Youngstown, but voters in Athens County approved the fracking ban.
Multiple cities have already enacted prohibitions against hydraulic fracturing. Five cities in Colorado have passed ordinances prohibiting fracking, and several cities in California also have fracking bans. In addition, similar legislation exists in localities throughout New York, Hawaii, New Jersey, and New Mexico. Some cities have taken the alternative approach of enacting temporary prohibitions against hydraulic fracturing. Other cities in Texas may also follow Denton’s example. Anti-fracking groups in Alpine, Texas are attempting to garner support for a city ban on hydraulic fracturing.
Courts throughout the country have disagreed on whether localities can enact ordinances barring hydraulic fracturing. Whereas some courts have invalidated local fracking bans, other courts have upheld such local laws. Currently, there are legal challenges to similar local bans pending in California, New Mexico, and Ohio. Indeed, several landowners have already filed suit against Denton to challenge the city’s moratorium on drilling. Moreover, the day after the election, the Texas Oil and Gas Association filed a motion to stop the enforcement of the fracking ban. Although the law is not yet settled on the validity of local fracking bans, one thing is certain—the Denton ban will serve as precedent for other Texas cities considering fracking bans.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Johnjerica Hodge (johnjerica.hodge@nortonrosefulbright.com or 713 651 5698) from Norton Rose Fulbright's Energy Practice Group.
On November 4th, Denton residents voted on whether the city should enact a ban against hydraulic fracturing within the city limits. The measure passed with 59 percent of Denton residents voting in favor of the measure and 41 percent voting against it. The Denton City Council considered the measure initially; however, rather than enact the ban itself, the Council opted to place the ban on the ballot for the November elections. Denton currently has a moratorium in place banning drilling until January 20, 2015.
Several cities in California and Ohio also attempted to pass local bans against hydraulic fracturing. Specifically, fracking bans were on the ballot in the following localities: Santa Barbara County, California; San Benito County, California; Mendocino County, California; Athens County, Ohio; Gates Mills, Ohio; Kent, Ohio; and Youngstown, Ohio. Most of the proposed fracking bans were defeated. The majority of voters in San Benito County and Mendocino County voted in favor of the ban, but the anti-fracking measure was defeated in Santa Barbara. The anti-fracking measure was defeated in Gates Mills, Kent, and Youngstown, but voters in Athens County approved the fracking ban.
Multiple cities have already enacted prohibitions against hydraulic fracturing. Five cities in Colorado have passed ordinances prohibiting fracking, and several cities in California also have fracking bans. In addition, similar legislation exists in localities throughout New York, Hawaii, New Jersey, and New Mexico. Some cities have taken the alternative approach of enacting temporary prohibitions against hydraulic fracturing. Other cities in Texas may also follow Denton’s example. Anti-fracking groups in Alpine, Texas are attempting to garner support for a city ban on hydraulic fracturing.
Courts throughout the country have disagreed on whether localities can enact ordinances barring hydraulic fracturing. Whereas some courts have invalidated local fracking bans, other courts have upheld such local laws. Currently, there are legal challenges to similar local bans pending in California, New Mexico, and Ohio. Indeed, several landowners have already filed suit against Denton to challenge the city’s moratorium on drilling. Moreover, the day after the election, the Texas Oil and Gas Association filed a motion to stop the enforcement of the fracking ban. Although the law is not yet settled on the validity of local fracking bans, one thing is certain—the Denton ban will serve as precedent for other Texas cities considering fracking bans.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Johnjerica Hodge (johnjerica.hodge@nortonrosefulbright.com or 713 651 5698) from Norton Rose Fulbright's Energy Practice Group.
Revisions to proposed fracking regulations in California
California recently circulated its third version of S.B. 4., a bill passed last year that sets forth rules regarding well
stimulation operations. The California Department of Conservation’s Division of
Oil, Gas and Geothermal Resources received over 100,000 comments from the
public regarding the first version of S.B. 4. The second version of the bill
also received a significant number of comments.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Johnjerica Hodge (johnjerica.hodge@nortonrosefulbright.com or 713 651 5698) from Norton Rose Fulbright's Energy Practice Group.
The third version of the bill features several changes from the
previous versions. For example, the threshold for reporting seismic activity
occurring near wells has been increased to require a magnitude of at least 2.7.
In addition, whereas well operators initially had to apply for a water permit
before applying for a fracking permit, operators may now apply for both permits
simultaneously. The twenty-day deadline for requesting water quality testing
has also been amended to permit residents to request testing irrespective of
whether twenty days have passed since the resident received notification that
well stimulation would occur. If the twenty-day period has passed, however, the
resident would be responsible for paying for the testing.
Multiple groups have expressed displeasure with the bill. Some
environmentalist groups have argued that the state should not permit fracking.
Even members of the oil and gas industry have noted that aspects of the bill
are problematic. The public has fifteen days to submit any comments on the
bill.
Read S.B. 4.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Johnjerica Hodge (johnjerica.hodge@nortonrosefulbright.com or 713 651 5698) from Norton Rose Fulbright's Energy Practice Group.
Ban on hydraulic fracturing in Santa Cruz County, California
On March 20, 2014, the Santa Cruz County Board of Supervisors voted 5-0 to prohibit hydraulic fracturing and oil and gas development in their county. This ban continues the ten-month moratorium that was started in September 2013.
Santa Cruz’s ban of hydraulic fracturing is largely symbolic because there are no known oil leases in the county nor has the area been targeted by oil and gas developers.
While Santa Cruz becomes the first county in California to prohibit hydraulic fracturing, other counties are considering their own bans or moratoria, including Butte, Mendocino, Monterey, Santa Barbara, San Benito, and Orange.
Beverly Hills recently enacted a ban on fracking and other well stimulating operations from any surface within the city as well as from any site outside of city limits that would extract oil and gas underneath the city. Los Angeles and Culver City are considering the same action. Meanwhile, in Carson, California, the city council refused to extend a temporary moratorium on fracking and other extraction activities.
Several state legislators are pushing for a statewide moratorium on hydraulic fracturing and acidizing activities, both onshore and offshore, until a sufficient state study on the threats and impacts of fracking is completed and regulations are in place to protect the state and its citizens. The proposed statewide moratorium is opposed by Governor Jerry Brown who supports the “great opportunities” that hydraulic fracturing can give to the state.
In October 2012, the Center for Biological Diversity and other environmental groups sued the state, seeking to prohibit the use of fracking until the California Department of Conservation, Division of Oil, Gas, and Geothermal Resources (DOGGR) “complies with its legal requirements to evaluate and mitigate the significant environmental and public health impacts caused by hydraulic fracturing.” In January 2014, the lawsuit was dismissed. with the Court stating that the questions were “not ripe for judicial review because the DOGGR has not yet completed its regulations.”
Of interest is that next month, the US Energy Information Administration (EIA) is expected to announce that the Monterey Shale has less shale oil reserves than previously estimated – a reduction from the estimated 13.7 billion barrels to just over 600 million barrels of recoverable crude.
The lawsuit referenced above 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).
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
Santa Cruz’s ban of hydraulic fracturing is largely symbolic because there are no known oil leases in the county nor has the area been targeted by oil and gas developers.
While Santa Cruz becomes the first county in California to prohibit hydraulic fracturing, other counties are considering their own bans or moratoria, including Butte, Mendocino, Monterey, Santa Barbara, San Benito, and Orange.
Beverly Hills recently enacted a ban on fracking and other well stimulating operations from any surface within the city as well as from any site outside of city limits that would extract oil and gas underneath the city. Los Angeles and Culver City are considering the same action. Meanwhile, in Carson, California, the city council refused to extend a temporary moratorium on fracking and other extraction activities.
Several state legislators are pushing for a statewide moratorium on hydraulic fracturing and acidizing activities, both onshore and offshore, until a sufficient state study on the threats and impacts of fracking is completed and regulations are in place to protect the state and its citizens. The proposed statewide moratorium is opposed by Governor Jerry Brown who supports the “great opportunities” that hydraulic fracturing can give to the state.
In October 2012, the Center for Biological Diversity and other environmental groups sued the state, seeking to prohibit the use of fracking until the California Department of Conservation, Division of Oil, Gas, and Geothermal Resources (DOGGR) “complies with its legal requirements to evaluate and mitigate the significant environmental and public health impacts caused by hydraulic fracturing.” In January 2014, the lawsuit was dismissed. with the Court stating that the questions were “not ripe for judicial review because the DOGGR has not yet completed its regulations.”
Of interest is that next month, the US Energy Information Administration (EIA) is expected to announce that the Monterey Shale has less shale oil reserves than previously estimated – a reduction from the estimated 13.7 billion barrels to just over 600 million barrels of recoverable crude.
The lawsuit referenced above 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).
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
EPA reviews states’ solid waste management regulations for oil and gas operations
In an April 1, 2014 memorandum, the U.S. Environmental Protection Agency (EPA) summarized state regulatory programs concerning the management of solid waste from oil and natural gas exploration, development and production (E&P) operations.
In reviewing each state’s regulations, the EPA focused on surface storage and disposal facilities managing produced waters, drilling muds, drilling cuttings, hydraulic fracturing return fluids, and various other waste liquids and materials intrinsically related to oil and gas E&P.
The EPA found that the state regulations were primarily concerned with the “technical requirements associated with the design, construction, operation, maintenance, closure, and reclamation of surface pits, ponds, lagoons or tanks, as well as financial assurance requirements associated with such facilities.”
Among the common parameters are state requirements for liners in pits and impoundments, secondary containment requirements for tanks, set-back requirements, and various inspection requirements. However, the EPA did find gaps in regulations relating to groundwater monitoring, leachate collection, air monitoring, and waste characterization.
Overall, with the review, the EPA had developed an understanding of the wide-range of state regulatory programs currently in place in the twenty-six (26) oil and gas producing states covered in the summary.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
In reviewing each state’s regulations, the EPA focused on surface storage and disposal facilities managing produced waters, drilling muds, drilling cuttings, hydraulic fracturing return fluids, and various other waste liquids and materials intrinsically related to oil and gas E&P.
The EPA found that the state regulations were primarily concerned with the “technical requirements associated with the design, construction, operation, maintenance, closure, and reclamation of surface pits, ponds, lagoons or tanks, as well as financial assurance requirements associated with such facilities.”
Among the common parameters are state requirements for liners in pits and impoundments, secondary containment requirements for tanks, set-back requirements, and various inspection requirements. However, the EPA did find gaps in regulations relating to groundwater monitoring, leachate collection, air monitoring, and waste characterization.
Overall, with the review, the EPA had developed an understanding of the wide-range of state regulatory programs currently in place in the twenty-six (26) oil and gas producing states covered in the summary.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
California hydraulic fracturing moratorium bill approved by State Senate Committee
On April 4, 2014, in a 5 to 2 vote with two members abstaining, the California Senate Natural Resources and Water Committee approved proposed legislation (Senate Bill 1132) that would place an indefinite moratorium on hydraulic fracturing and acidizing activities throughout the state, both onshore and offshore, until a sufficient state study on the threats and impacts of fracking is complete and regulations are in place to protect the state and its citizens.
This bill expands on the hydraulic fracturing law (S.B. 4) that took effect on January 1, 2014, which requires oil and gas companies to (1) apply for and obtain permits before starting fracking and other well stimulation operations, (2) notify near-by landowners of these activities, (3) disclose all chemicals used, and (4) monitor groundwater and air quality.
In addition, SB-4 requires a scientific study on well stimulation treatments. “On or before January 1, 2015, the Secretary of the Natural Resources Agency shall cause to be conducted, and completed, an independent scientific study on well stimulation treatments, including, but not limited to, hydraulic fracturing and acid well stimulation treatments. The scientific study shall evaluate the hazards and risks and potential hazards and risks that well stimulation treatments pose to natural resources and public, occupational, and environmental health and safety.”
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
This bill expands on the hydraulic fracturing law (S.B. 4) that took effect on January 1, 2014, which requires oil and gas companies to (1) apply for and obtain permits before starting fracking and other well stimulation operations, (2) notify near-by landowners of these activities, (3) disclose all chemicals used, and (4) monitor groundwater and air quality.
In addition, SB-4 requires a scientific study on well stimulation treatments. “On or before January 1, 2015, the Secretary of the Natural Resources Agency shall cause to be conducted, and completed, an independent scientific study on well stimulation treatments, including, but not limited to, hydraulic fracturing and acid well stimulation treatments. The scientific study shall evaluate the hazards and risks and potential hazards and risks that well stimulation treatments pose to natural resources and public, occupational, and environmental health and safety.”
Under S.B. 1132, the S.B. 4-ordered study would be broadened to include the investigation of the potential impacts of well stimulation and increased oil and gas activity on the state’s efforts to meet its greenhouse gas reduction targets; impacts on private property and land use; health risks; economic costs and harms; potential risks to worker safety; potential effects on ground and surface water, looking at the risks for contamination and effects on water sustainability; evaluation of the risks posed by flowback fluids and byproducts generated by fracking; potential disruption of low income communities and communities of color; and other potential environmental, health, and economic effects on the state and its residents.
Within six (6) months of the completion of the study, a panel consisting of the heads of the Natural Resources Agency, the Air Resources Board, the California EPA, and the State Water Board, shall be convened to determine whether the study is complete and whether additional regulations are needed to protect the state and its people. A tentative copy of the report would be released, allowing the public 60 days for comments. Once finalized, the report would be issued to the Governor and to the appropriate legislative committees. It will then be up to the Governor to decide if fracking and other well stimulation activities can safely resume and under what conditions. Gov. Brown has not been amenable to similar suggested moratoriums in the past, citing the economic benefits of the oil and gas activities.
Within six (6) months of the completion of the study, a panel consisting of the heads of the Natural Resources Agency, the Air Resources Board, the California EPA, and the State Water Board, shall be convened to determine whether the study is complete and whether additional regulations are needed to protect the state and its people. A tentative copy of the report would be released, allowing the public 60 days for comments. Once finalized, the report would be issued to the Governor and to the appropriate legislative committees. It will then be up to the Governor to decide if fracking and other well stimulation activities can safely resume and under what conditions. Gov. Brown has not been amenable to similar suggested moratoriums in the past, citing the economic benefits of the oil and gas activities.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
Environmental groups challenge shipments of crude oil by rail in the San Francisco bay area
On March 27, 2014, Earthjustice, on behalf of several
environmental and conservation groups, filed a lawsuit against the Bay Area Air
Quality Management LLC (BAAQM) for issuing a permit allowing North Dakotan
Bakken crude oil to be transported to refineries in the San Francisco Bay
area, The environmentalists argue that the BAAQM issued the permit
without any notice or public process, without considering the “well-known and
potentially catastrophic risk to public health and safety” as evidenced in the
Lac-Mégantic, Québec train derailment in July 2013, and without complying with
the requirements of the California Environmental Quality Act (CEQA).
The environmentalists contend that, in labeling the permit
request as “ministerial,” the BAAQM ignored “the risks of derailment and
accidents, risks of explosions, increased release of toxic air pollutants,
increased greenhouse gases from further train travel, and increased noxious odors.”
The groups assert that these impacts from the issuance of the permit should
have been publicly disclosed, analyzed and mitigated in an Environmental Impact
Review (EIR). They point to the already-heavily polluted community where
the rail yard is located and to California’s inadequate and aged railroad
infrastructure.
The environmental groups seek a declaratory
judgment and preliminary
injunction to set aside the permit, to require full compliance with the
CEQA , and to enjoin crude-by rail operations under the permit until an EIR is
complete and subject to public scrutiny.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
Bans, moratoriums, and votes relating to hydraulic fracturing
Each state has legitimate interests in the orderly development of their oil and gas resources and generally regulates all oil and gas activities through a state agency which implements state laws. Counties and municipalities have also taken interest in the development of oil and gas resources within their boundaries by enacting local ordinances ranging from set-back requirements to temporary moratoriums or permanent bans on hydraulic fracturing. Proposals for temporary moratoriums and bans have been voted on in local elections.
For example, Vermont decided to ban hydraulic fracturing on May 16, 2012. In November 2013, four cities in Colorado (Boulder, Fort Collins, Lafayette, and Broomfield) either extended moratoriums on hydraulic fracturing or banned it completely. In Ohio, the city of Oberlin voted to ban hydraulic fracturing while citizens of Youngstown and Bowling Green rejected proposed bans.
Recent events concerning moratoriums, bans and votes include:
Lawsuits challenging local bans of oil and gas development on the basis that they interfere with state regulatory authority are winding their way through a number of state courts. Lawsuits in New York, Pennsylvania and West Virginia concerning local bans or restrictions on hydraulic fracturing have resulted in differing results – with some municipal ordinance being upheld while others are rejected. For a detailed review of these cases, see Barclay Nicholson and Steven Dillard, Analysis of Litigation Involving Shale Gas and Hydraulic Fracturing, found at www.frackingblog.com.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
For example, Vermont decided to ban hydraulic fracturing on May 16, 2012. In November 2013, four cities in Colorado (Boulder, Fort Collins, Lafayette, and Broomfield) either extended moratoriums on hydraulic fracturing or banned it completely. In Ohio, the city of Oberlin voted to ban hydraulic fracturing while citizens of Youngstown and Bowling Green rejected proposed bans.
Recent events concerning moratoriums, bans and votes include:
- On February 28, 2014, Los Angeles city council voted to draft regulations that would ban fracking, acid stimulation, and the use of waste disposal wells within the city, until they are assured that these activities do not pose a threat to residents’ health and safety.
- The city of Carson, California imposed a 45-day emergency moratorium on all new drilling on March 19, 2014. This moratorium can be extended for two years to allow the city council to consider the potential effects associated with hydraulic fracturing.
- In Culver City, California, the city council is preparing an ordinance that would impose a moratorium on hydraulic fracturing and other unconventional well operations within the city.
- Brighton, Colorado enacted a four-month moratorium on all hydraulic fracturing permits in order to address local concerns. The city will begin processing permits again on July 15, 2014.
- On March 18, 2014, the voters in Johnson County, Illinois defeated a non-binding ballot measure that would have directed county commissioners to ban hydraulic fracturing within the county.
- An anti-fracking group in Denton, Texas announced that it has obtained the requisite number of signatures to have its proposal to ban hydraulic fracturing on the November 2014 ballot.
Lawsuits challenging local bans of oil and gas development on the basis that they interfere with state regulatory authority are winding their way through a number of state courts. Lawsuits in New York, Pennsylvania and West Virginia concerning local bans or restrictions on hydraulic fracturing have resulted in differing results – with some municipal ordinance being upheld while others are rejected. For a detailed review of these cases, see Barclay Nicholson and Steven Dillard, Analysis of Litigation Involving Shale Gas and Hydraulic Fracturing, found at www.frackingblog.com.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
California drought being used to push for a moratorium on hydraulic fracturing
With most of the state of California under abnormally dry to extreme drought conditions, opponents of hydraulic fracturing are focusing their efforts on curtailing these operations to preserve the state’s water supply. California assemblyman Marc Levine is co-sponsoring a bill that would place a moratorium on all fracking activities, arguing these activities require too much water and deplete the state’s limited water resources. Last year a moratorium bill failed (37 to 24) while a bill requiring disclosure of the fluids used in hydraulic fracturing was passed.
As of yet, California has not done much fracturing, with the Department of Conservation estimating that last year the entire oil and gas industry used about as much water as 300 households or nearly 1,000,000 gallons. According to industry representatives, hydraulic fracturing in California uses very small amounts of water and the period of pressuring the reservoir rock is much shorter. Also the industry states that its members are sensitive to the drought conditions and can make adjustments to their operations to compensate for water shortages.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
As of yet, California has not done much fracturing, with the Department of Conservation estimating that last year the entire oil and gas industry used about as much water as 300 households or nearly 1,000,000 gallons. According to industry representatives, hydraulic fracturing in California uses very small amounts of water and the period of pressuring the reservoir rock is much shorter. Also the industry states that its members are sensitive to the drought conditions and can make adjustments to their operations to compensate for water shortages.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
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.”
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
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”
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”
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
EPA requires California offshore drillers to disclose fracking fluids
The U.S. Environmental Protection Agency (EPA), Region 9, will require oil and gas operators engaged in hydraulic fracturing off the southern California coast to disclose all chemicals discharged into the Pacific Ocean beginning March 1, 2014. This disclosure requirement is part of a revised general permit for oil and gas operations in federal waters.
The revised permit requires all offshore drillers to maintain an inventory of the chemicals used to formulate well treatment, completion and workover fluids, and if there is a discharge of the fluids, to report the chemical formulation of the discharges (and the discharge volume) with the quarterly discharge monitoring report. The new permit will apply to the “23 existing development and production platforms as well as to any new exploratory drilling operations located in and discharging to the specified lease blocks on the Pacific Outer Continental Shelf covered by the permit.”
This revised permit replaces the previous general permit issued on September 22, 2004, and is similar to the permit that was proposed in December 2012. See the Fact Sheet dated December 5, 2012 (pages 18-71) and the Addendum to the Fact Sheet dated December 17, 2013 (pages 1-17).
The disclosure requirement was added in response to recent concerns expressed by environmental groups and others regarding the potential effects of discharges of fluids used for hydraulic fracturing operations offshore. In November, U.S. Representative Lois Capps (D-Calif.) requested the EPA to place a moratorium on offshore fracking activities until “a comprehensive study of their impacts on the marine environment and public health is conducted and considered.”
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
The revised permit requires all offshore drillers to maintain an inventory of the chemicals used to formulate well treatment, completion and workover fluids, and if there is a discharge of the fluids, to report the chemical formulation of the discharges (and the discharge volume) with the quarterly discharge monitoring report. The new permit will apply to the “23 existing development and production platforms as well as to any new exploratory drilling operations located in and discharging to the specified lease blocks on the Pacific Outer Continental Shelf covered by the permit.”
This revised permit replaces the previous general permit issued on September 22, 2004, and is similar to the permit that was proposed in December 2012. See the Fact Sheet dated December 5, 2012 (pages 18-71) and the Addendum to the Fact Sheet dated December 17, 2013 (pages 1-17).
The disclosure requirement was added in response to recent concerns expressed by environmental groups and others regarding the potential effects of discharges of fluids used for hydraulic fracturing operations offshore. In November, U.S. Representative Lois Capps (D-Calif.) requested the EPA to place a moratorium on offshore fracking activities until “a comprehensive study of their impacts on the marine environment and public health is conducted and considered.”
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
Environmental group and congresswoman want to halt California offshore hydraulic fracturing operations
In October, the Associated Press reported that hydraulic fracturing activities off the coast of California were more extensive than previously thought. Interviews and public records revealed that oil companies had used fracking more than 200 times at six different sites over the last 20 years near Long Beach, Seal Beach and Huntington Beach.
The Center for Biological Diversity (CBD), an environmental activist group, took up the issue of offshore fracking and urged a moratorium on these activities in an October 3, 2013 letter addressed to the Bureau of Ocean Energy Management and to the Bureau of Safety and Environmental Enforcement, Pacific Region. See prior blog dated October 14, 2013, “Environmental Group Urges Moratorium on California Offshore Hydraulic Fracturing Operations.”
According to the CBD, without a supplemental National Environmental Policy Act (NEPA)review, these operations violate NEPA, the Outer Continental Shelf Lands Act and other environmental statutes. Continuing its efforts to stop offshore fracking operations, the CBD sent a letter dated November 14, 2013 to the California Coastal Commission requesting that it “take immediate action to halt hydraulic fracturing and other unconventional techniques for extracting oil and gas off the California coast.”
Representative Lois Capps (D-Calif.) has now requested a moratorium on California offshore fracking activities. In a letter dated November 19, 2013, she asked the Department of the Interior and the Environmental Protection Agency to halt these operations in federal waters “until a comprehensive study of their impacts on the marine environment and public health is conducted and considered.” According to Rep. Capps, there have been at least 15 fracking operations performed at wells in federal waters off California since the early 1990s, with some of these fracks occurring- near the National Marine Sanctuary and other sensitive marine areas.
These offshore activities need to be in compliance with regulations under the Endangered Species Act and the Marine Mammal Protection Act. Rep. Capps asserts that these operations were “approved with overly broad and outdated plans” that do not adequately assess the current offshore environmental risks. "There is a great deal we do not yet know about the environmental and public health impacts of fracking onshore, let alone offshore.”
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
The Center for Biological Diversity (CBD), an environmental activist group, took up the issue of offshore fracking and urged a moratorium on these activities in an October 3, 2013 letter addressed to the Bureau of Ocean Energy Management and to the Bureau of Safety and Environmental Enforcement, Pacific Region. See prior blog dated October 14, 2013, “Environmental Group Urges Moratorium on California Offshore Hydraulic Fracturing Operations.”
According to the CBD, without a supplemental National Environmental Policy Act (NEPA)review, these operations violate NEPA, the Outer Continental Shelf Lands Act and other environmental statutes. Continuing its efforts to stop offshore fracking operations, the CBD sent a letter dated November 14, 2013 to the California Coastal Commission requesting that it “take immediate action to halt hydraulic fracturing and other unconventional techniques for extracting oil and gas off the California coast.”
Representative Lois Capps (D-Calif.) has now requested a moratorium on California offshore fracking activities. In a letter dated November 19, 2013, she asked the Department of the Interior and the Environmental Protection Agency to halt these operations in federal waters “until a comprehensive study of their impacts on the marine environment and public health is conducted and considered.” According to Rep. Capps, there have been at least 15 fracking operations performed at wells in federal waters off California since the early 1990s, with some of these fracks occurring- near the National Marine Sanctuary and other sensitive marine areas.
These offshore activities need to be in compliance with regulations under the Endangered Species Act and the Marine Mammal Protection Act. Rep. Capps asserts that these operations were “approved with overly broad and outdated plans” that do not adequately assess the current offshore environmental risks. "There is a great deal we do not yet know about the environmental and public health impacts of fracking onshore, let alone offshore.”
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
Illinois and California issue proposed administrative rules to implement hydraulic fracturing legislation
In Illinois, Governor Pat Quinn approved hydraulic fracturing legislation on June 17, 2013. The Illinois Department of Natural Resources (DNR) released proposed administrative rules to implement this legislation on November 15, 2013 – Proposed Administrative Rules for the Hydraulic Fracturing Regulatory Act and Proposed Administrative Rules for Seismicity to monitor Class II UIC wells receiving any hydraulic fracturing fluids.
The rules require oil and gas companies to disclosure chemicals used in fracking operations both before and after drilling and to test water before, during and after drilling. The rules also require the operators to provide information as to how the well will be drilled, how much fluid will be used, what pressures will be used, how water will be obtained, and how flowback fluids will be disposed. Before finalizing these rules, the DNR will hold two public hearings (November 26, 2013 in Chicago and December 3, 2013 in Ina) and will accept comments on the proposed rules through January 3, 2014.
In California, Governor Jerry Brown approved hydraulic fracturing legislation on September 20, 2013. Proposed regulations to implement the legislation were issued by the California Department of Conservation, Division of Oil, Gas and Geothermal Resources (DOGGR) on November 15, 2013. These regulations are open for public comment for 60 days (until mid-January), with five public hearings scheduled for early next year.
Under the proposed regulations, oil and gas companies would be required to apply for and obtain permits before starting hydraulic fracturing activities, notify near-by landowners of these activities, disclose all chemicals used during fracking, watch pressures and flow rates during well stimulation, and monitor groundwater quality before, during and after drilling. For the chemical disclosures, the oil and gas companies would be required to identify in the permit application what chemicals are anticipated to be used and then, within 60 days of fracking completion, to disclosure what chemicals were actually used during the operation. This information must be disclosed publicly through the Chemical Disclosure Registry (FracFocus.org).
The proposed regulations also require operators to continuously monitor pressures and flow rates during well stimulation, evaluate the condition of the well’s cement, and analyze surrounding wells and earthquake faults to prevent hydraulic fracturing fluids from migrating to other areas. While these proposed regulations will not go into effect until January 1, 2015, the DOGGR announced that emergency regulations will be in place by January 1, 2014.
The rules require oil and gas companies to disclosure chemicals used in fracking operations both before and after drilling and to test water before, during and after drilling. The rules also require the operators to provide information as to how the well will be drilled, how much fluid will be used, what pressures will be used, how water will be obtained, and how flowback fluids will be disposed. Before finalizing these rules, the DNR will hold two public hearings (November 26, 2013 in Chicago and December 3, 2013 in Ina) and will accept comments on the proposed rules through January 3, 2014.
In California, Governor Jerry Brown approved hydraulic fracturing legislation on September 20, 2013. Proposed regulations to implement the legislation were issued by the California Department of Conservation, Division of Oil, Gas and Geothermal Resources (DOGGR) on November 15, 2013. These regulations are open for public comment for 60 days (until mid-January), with five public hearings scheduled for early next year.
Under the proposed regulations, oil and gas companies would be required to apply for and obtain permits before starting hydraulic fracturing activities, notify near-by landowners of these activities, disclose all chemicals used during fracking, watch pressures and flow rates during well stimulation, and monitor groundwater quality before, during and after drilling. For the chemical disclosures, the oil and gas companies would be required to identify in the permit application what chemicals are anticipated to be used and then, within 60 days of fracking completion, to disclosure what chemicals were actually used during the operation. This information must be disclosed publicly through the Chemical Disclosure Registry (FracFocus.org).
The proposed regulations also require operators to continuously monitor pressures and flow rates during well stimulation, evaluate the condition of the well’s cement, and analyze surrounding wells and earthquake faults to prevent hydraulic fracturing fluids from migrating to other areas. While these proposed regulations will not go into effect until January 1, 2015, the DOGGR announced that emergency regulations will be in place by January 1, 2014.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
California's new hydraulic fracturing law cited as basis for motion to dismiss
On October 21, 2013, the Western States Petroleum Association (WSPA) filed a motion to dismiss citing the provisions of the state’s new law (S.B. 4) which sets out tough restrictions on the use of hydraulic fracturing and other acidizing processes.
The WSPA is an intervener-defendant in an October 2012 lawsuit filed in the California Superior Court for Alameda County by several environmental groups seeking an injunction prohibiting any new oil and gas permit approvals until the California Department of Conservation, Division of Oil, Gas, and Geothermal Resources (“DOGGR”) “complies with its legal requirements to evaluate and mitigate the significant environmental and public health impacts caused by hydraulic fracturing.”
The Plaintiffs claim that the DOGGR has issued permits “without any environmental analysis” of “contamination of domestic and agricultural water supplies, the use of massive amounts of water, the emission of hazardous air pollutants, and the potential for induced seismic activity” allegedly created by hydraulic fracturing.
In its motion to dismiss, the WSPA argues that the complaint is now irrelevant because the law requires the DOGGR “to conduct an EIR [environmental impact report] addressing any potential environmental impacts from hydraulic fracturing in the state” by July 15, 2015. According to the WSPA, the law releases oil and gas companies from any need to go through California Environmental Quality Act (CEQA) until the EIR is completed. “Accordingly, there is no basis for the granting of any effective relief that is not already provided by the passage of S.B. 4, and thus the case should be dismissed.”
The DOGGR has filed pleadings concurring with WSPA, stating 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.”
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
The WSPA is an intervener-defendant in an October 2012 lawsuit filed in the California Superior Court for Alameda County by several environmental groups seeking an injunction prohibiting any new oil and gas permit approvals until the California Department of Conservation, Division of Oil, Gas, and Geothermal Resources (“DOGGR”) “complies with its legal requirements to evaluate and mitigate the significant environmental and public health impacts caused by hydraulic fracturing.”
The Plaintiffs claim that the DOGGR has issued permits “without any environmental analysis” of “contamination of domestic and agricultural water supplies, the use of massive amounts of water, the emission of hazardous air pollutants, and the potential for induced seismic activity” allegedly created by hydraulic fracturing.
In its motion to dismiss, the WSPA argues that the complaint is now irrelevant because the law requires the DOGGR “to conduct an EIR [environmental impact report] addressing any potential environmental impacts from hydraulic fracturing in the state” by July 15, 2015. According to the WSPA, the law releases oil and gas companies from any need to go through California Environmental Quality Act (CEQA) until the EIR is completed. “Accordingly, there is no basis for the granting of any effective relief that is not already provided by the passage of S.B. 4, and thus the case should be dismissed.”
The DOGGR has filed pleadings concurring with WSPA, stating 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.”
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
Environmental group urges moratorium on California offshore hydraulic fracturing operations
In a letter dated October 3, 2013, the Center for Biological Diversity (CBD) urged federal offshore regulators at the Bureau of Ocean Energy Management and the Bureau of Safety and Environmental Enforcement, Pacific Region, “to place an immediate moratorium on new oil and gas approvals” and to suspend existing approvals “involving hydraulic fracturing (fracking) and other unconventional extraction techniques to protect our marine environment and comply with your statutory stewardship duties.” The CBD states that these agencies are violating federal environmental statutes, including the National Environmental Policy Act (NEPA) and the Outer Continental Shelf Lands Act (OCSLA), by allowing hydraulic fracturing and unconventional drilling in the Pacific Ocean without conducting a supplemental NEPA review to analyze the risks to human health and endangered marine life and a full environmental impact statement. The group points to records which indicate that at least a dozen wells in California state waters have been fracked in the past three years using dangerous substances such as “2-Butoxyethanol, methanol and other cancer causing chemicals.”
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
The Center for Biological Diversity was recently successful in a similar case involving hydraulic fracturing on federal land in the central California Monterey Shale Formation, finding that the federal agency failed to assess the risks of fracking before issuing the leases. On March 31, 2013, in Center for Biological Diversity and Sierra Club v. The Bureau of Land Management and Ken Salazar, Secretary of the Department of the Interior, No. CV-11-06174 (N.D. Cal., December 8, 2011), the Court ruled that the BLM failed to conduct the “hard look” analysis required by NEPA by dismissing any development scenario involving hydraulic fracturing when used in combination with technologies such as horizontal drilling. See prior blog entitled “BLM Violated NEPA by Granting Leases without Evaluating Fracking Risks,” dated April 10, 2013.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
California Governor Jerry Brown Signs Strict Hydraulic Fracturing Law
Stating that the measure “establishes strong environmental protections and transparency requirements for hydraulic fracturing and other well stimulation operations,” Governor Jerry Brown signed California S.B. 4 into law on September 20, 2013.
This new law, which takes effect on January 1, 2014, sets out tough restrictions on the use of hydraulic fracturing and other acidizing processes.
Oil and gas companies will be required to:
The governor urged the Department of Conservation to set up a program that would group similar applications based on known geologic conditions and environmental impacts, while allowing for more particularized review when necessary.
Both environmentalists and oil and gas companies have criticized the new law, with the industry groups claiming that the requirements are too burdensome and the conservation groups arguing that the provisions are too weak to protect the environment.
Of particular concern to the oil and gas companies is the requirement to identify in the permit application what chemicals will be used and then, after the stimulation is complete, to disclose what chemicals were actually used during the fracking procedure.
Industry representatives have expressed concern that the law specifically states that certain information is not a trade secret, namely:
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
Oil and gas companies will be required to:
- apply for and obtain permits before starting fracking and other well stimulation operations,
- notify near-by landowners of these activities,
- disclose all chemicals used, and
- monitor groundwater and air quality. See California Closer to Having Hydraulic Fracturing Regulations, Norton Rose Fulbright's Hydraulic Fracking Blog, September 17, 2013.
The governor urged the Department of Conservation to set up a program that would group similar applications based on known geologic conditions and environmental impacts, while allowing for more particularized review when necessary.
Both environmentalists and oil and gas companies have criticized the new law, with the industry groups claiming that the requirements are too burdensome and the conservation groups arguing that the provisions are too weak to protect the environment.
Of particular concern to the oil and gas companies is the requirement to identify in the permit application what chemicals will be used and then, after the stimulation is complete, to disclose what chemicals were actually used during the fracking procedure.
Industry representatives have expressed concern that the law specifically states that certain information is not a trade secret, namely:
- the identities of the chemical constituents of additives, including CAS identification numbers;
- the concentrations of the additives in the well stimulation treatment fluids.; and
- the chemical composition of the flowback fluid.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
California Closer to Having Hydraulic Fracturing Regulations
On September 11, 2013, the California State Assembly passed Senate Bill 4 bill which would regulate hydraulic fracturing operations and require disclosure of the chemicals used in the process to the Division of Oil, Gas, and Geothermal Resources in the Department of Conservation.
This bill now returns to the State Senate (where it was originally approved in May 2013); and, if this amended version is passed by the Senate, the bill will be sent to Gov. Jerry Brown for signature.
Additional provisions include:
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
This bill now returns to the State Senate (where it was originally approved in May 2013); and, if this amended version is passed by the Senate, the bill will be sent to Gov. Jerry Brown for signature.
Additional provisions include:
- On or before January 1, 2015, the Natural Resources Agency must conduct and complete an independent scientific study on well stimulation treatments, such as hydraulic fracturing and acid well stimulation.
The scientific study is to evaluate potential risks from these treatments, including groundwater contamination, surface water pollution, greenhouse gas emissions, air quality, induced-seismic activity, and effects on wildlife, plants and habitat. - On or before January 1, 2015, the Division would be required to adopt rules specific to well stimulation, including governing the construction of wells and well casings and the full disclosure of the composition and disposition of well stimulation fluids.
- A well owner or operator must apply to the Division for a well stimulation permit prior to performing a treatment.
Within 5 business days of approving the one-year permit, the Division must post the permit on a publicly accessible portion of its internet web site. - At least 30 days prior to well stimulation, the operator must provide a copy of the approved permit to specified tenants and property owners “whose property line location…is (i) within a 1,500 foot radius of the wellhead [or] (ii) within 500 feet of the horizontal projection of all subsurface portions of the designated well to the surface.”
The operator must provide notice to the Division at least 72-hours prior to the actual start of well stimulation in order for the Division to witness the treatment. - The supplier of the well stimulation treatment must provide the operator within 10 days of the process certain information regarding the fluids used.
Within 60 days of the completion of the stimulation, the operation must post or cause to be posted to a publicly accessible web site the fluid information.
The Division would be required to begin development of its own web site for this information (to be completed by January 1, 2016).
Until then, an alternative website can be used (i.e., FracFocus.org), but the Division must obtain the information posted to the alternate web site and make it available to the public electronically within 15 days of the alternate posting.
A supplier claiming a trade secret must disclose the composition to the Division and substantiate its claim by identifying the extent to which the information is known by its employees, the measures taken to protect the trade secret, the value of the trade secret, and the cost of developing this information.
The Division would not disclose trade secret information except in specific situations, including medical emergencies. - Chemical information to be disclosed includes: list of names, Chemical Abstract Service (CAS) numbers, and maximum concentration in percent by mass of each chemical constituent; the trade name, the supplier, concentration, and a brief description of the purpose of each additive contained in the fluid; total volume of base fluid used; the source, volume, and specific composition and disposition of all water used as a base fluid and all water recovered; and the specific composition and disposition of all well treatment fluids.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
Proposed hydraulic fracturing moratorium in Los Angeles
Members of the Los Angeles City Council have proposed a motion that would ban all hydraulic fracturing, acidizing, gravel packing and other well-stimulation practices within the city and in any areas that provide drinking water to the city, alleging that these oil and gas operations and the use of waste disposal injection wells ‘threaten to contaminate the City’s imported and local groundwater supplies [and are] inherently dangerous to the long-term safety, health, security and reliability of Los Angeles’ water supplies.” These council members point to “more than 1,000 documents cases of water contamination next to fracking sites,” but they provide no support for this claim. Additional allegations include:
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
- Because the chemicals used in the these operations are not disclosed, the Department of Water & Power would be unable to determine whether the water supplies were being contaminated by these chemicals.
- These operations require large volumes of water and would “jeopardize regional, state, and water supplies needed by the people of Los Angeles.”
- Treatment of contaminated groundwater is expensive, and identifying the responsible parties for financial liability is not always possible.
- These operations “seriously undermine the State’s efforts to address the climate crisis by reducing greenhouse gas emissions.”
- Fracking and injection cause “seismic events.”
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.
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