Court’s Tentative Decision Sides in Favor of DOGGR in CBD’s Wastewater Injection Lawsuit

Stoel Rives - California Environmental Law
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As reported in a previous blog post, Earthjustice, on behalf of the Center for Biological Diversity (“CBD”), filed a lawsuit against the California Division of Oil, Gas, and Geothermal Resources (“DOGGR”) in May 2015.  The lawsuit attacked DOGGR’s emergency rulemaking for aquifer exemption compliance.  Not surprisingly, like all of CBD’s spurious lawsuits attacking DOGGR for implementing its regulatory duties, on August 2, 2016, an Alameda County Superior Court judge issued a tentative ruling denying CBD’s petition for writ of mandate. This is another setback for CBD’s litigation strategy of impeding DOGGR in order to cripple the oil and gas industry.

DOGGR issued the emergency rules in response to a letter from the U.S. Environmental Protection Agency that addressed California’s compliance with the federal Safe Drinking Water Act (“SDWA”) and the Class II Underground Injection Control (“UIC”) program.  Following DOGGR’s issuance of the emergency rules, the EPA stated “[t]he State’s emergency regulations to codify deadlines for injection well operators to cease injection, absent EPA-approved aquifer exemptions, is a critical step in the State’s plan to return the California Class II UIC program to compliance with the SDWA.”  In other words, California regulators were doing what they were supposed to do under the law.

Nevertheless, CBD demanded an immediate halt to oil and gas wastewater injection at 2,500 wells across California.  CBD claimed that any wastewater injection was a violation of the SDWA because DOGGR had a non-discretionary duty to prevent Class II injection into non-exempt aquifers.  Under the SDWA, many of these aquifers qualify as exempt aquifers, though, and DOGGR must merely go through the exemption process in order to apply the correct classification which authorizes injection.  Further, CBD’s complaint alleged that DOGGR’s rulemaking action violated the California Administrative Procedure Act (“APA”) because the emergency rules failed to comply with APA requirements for emergency regulations:  “The recited facts in DOGGR’s Revised Finding of Emergency do not constitute or justify an emergency.”

In its tentative denial of CBD’s petition for writ of mandate, the superior court observed that  “the emergency regulations were a reasonable and permissible response by DOGGR to remedy what DOGGR discovered was an error in its application of its obligations to the EPA and DOGGR’s obligation under the SDWA.”  Tentative Decision, at 7.  The court deferred to DOGGR’s discretion and stated that DOGGR’s actions were consistent with the SDWA.  Further, the court found that CBD had no standing to bring suit to enforce the Memorandum of Agreement between the EPA and DOGGR, and the EPA could determine that DOGGR was not in compliance and enforce the SDWA.  The EPA, however, has consistently supported DOGGR’s rulemaking.

Relatedly, on August 3, 2016 CBD filed another lawsuit against DOGGR, claiming that DOGGR violated the California Environmental Quality Act when it approved an aquifer exemption for the Arroyo Grande oil field.  Stay tuned for future updates on both cases.

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Stoel Rives - California Environmental Law
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