Last week, a judge in Alameda County Superior Court denied the Center for Biological Diversity’s motion for summary judgment in a case arguing that DOGGR is obligated to regulate hydraulic fracturing activities under the state’s underground injection control (UIC) program. The Center challenged DOGGR’s position that the federal Energy Policy Act of 2005 exempts fracking from the state UIC program under the Safe Drinking Water Act (see January 25, 2013, post). The judge sided with DOGGR, finding that the exemption of fracking activities from state UIC regulations was consistent with the Safe Drinking Water Act and DOGGR’s interpretation should be afforded great weight unless clearly erroneous.
The judge also rejected the Center’s argument that the failure to regulate fracking under the UIC program was inconsistent with the Public Resources Code mandate to prevent damage to life, health, property and natural resources. The judge concluded that the Code’s mandate applies generally and does not specifically require DOGGR to regulate fracking or require fracking to fall under the UIC regulations.
This is not a surprising outcome given the Energy Policy Act’s express exemption of fracking from the Safe Drinking Water Act that governs UIC programs. It would have been difficult for a judge to find that the federal exemption was in some way inapplicable to the state UIC program.