On January 24, 2013, the Center for Biological Diversity (CBD) filed suit in Alameda Superior Court in California, joining other environmental groups including Earthjustice and the Sierra Club in alleging that the California Department of Oil, Gas and Geothermal Resources (DOGGR) has unlawfully failed to assess the alleged environmental hazards associated with an oil and gas production stimulation technique known as hydraulic fracturing, typically referred to as “fracking.” As discussed in Sedgwick’s October 2012 edition of the Hydraulic Fracturing Digest at “Using CEQA To Regulate Hydraulic Fracturing”, fracking involves the injection of a mixture of water, proppant (usually sand) and a small amount of chemicals through production casings into the hydrocarbon bearing formations, fracturing them and thereby freeing trapped oil and natural gas for commercial recovery.
Whereas the Earthjustice and Sierra Club lawsuits seek to enjoin fracking because fracking activities are being conducted in violation of the California Environmental Quality Act (CEQA), the CBD lawsuit targets DOGGR’s alleged failure to enforce its own regulations with respect to the fracking process. Specifically, CBD alleges that fracking can and should be regulated under statutes governing the operation of Class II Injection Wells in California, specifically California Code of Regulations sections 1724.6 – 1724.10 and Public Resources Code sections 3000 et seq. (Injection Well Statutes). DOGGR regulates injection wells in accordance with its grant of primary authority from the U.S. Environmental Protection Agency. Injection wells, unlike production wells, do not produce oil or natural gas, but instead are used for underground disposal of formation water also known as “produced water” generated during oil and gas drilling and production operations.
Although the Energy Policy Act of 2005 (42 USC sec. 300(h)(d)) expressly excludes fracking from the regulatory framework governing injection wells and DOGGR’s current draft fracking regulations affirm this exclusion, CBD has nevertheless asked the court to find that fracking is a form of injection subject to the Injection Well Statutes and the operational standards, reporting requirements and agency oversight provisions contained therein. Should the court make such a finding, all fracking operations in California would need to comply with the Injection Well Statutes. It should be noted that CBD’s persuasive burden is high with respect to this claim because the court will afford great weight and deference to DOGGR’s interpretation of its own regulations.
Finally, CBD makes a secondary argument to the effect that DOGGR’s broad obligation to ensure that oil and gas operations are conducted in a manner that does the least possible damage to life, health and property (Public Resources Code section 3106(a)) means that all fracking operations must cease until DOGGR demonstrates that fracking can be conducted “safely.” Consequently, the court could find that the Injection Well Statutes do not govern fracking operations in California, but still enjoin fracking activities until DOGGR demonstrates that such activities do not pose an unreasonable risk to life, health and property.