Fracking Heats Up in California: Moratoria and Earthquakes

by Best Best & Krieger LLP

The last several weeks have seen some interesting developments suggesting an increase in temperature in Oil Pumperthe debate over hydraulic fracturing, or “fracking,” in California.

First, a couple of jurisdictions took actions on proposals to impose moratoria on fracking within their cities’ limits. On February 28, the City of Los Angeles’ city council voted to direct the city attorney to draft an ordinance banning fracking and acidizing indefinitely until the Council determines that state and federal fracking regulations are sufficient to address the presumed negative effects of fracking. If the LA city council adopts the ordinance, Los Angeles will become the largest oil-producing city in the country to ban fracking. See the Los Angeles Chamber of Commerce’s response here. LA would have also had the honor of being the first oil-producing city in California to enact a ban, were it not for the City of Carson’s adoption of an emergency ban on March 19 regarding both fracking and acidizing, thereby beating LA to the punch in terms of actually starting an effective moratorium. Carson’s ban would last 45 days, but can be extended up to two years.

Both of these actions raise the possibility that a number of other cities may follow suit, and this would certainly follow the pattern established in states overlaying the Marcellus shale, such as New York and Pennsylvania, where the last several years has seen those states’ courts struggle to determine whether numerous local bans on fracking activities were preempted by statewide legislation. The pattern would seem to be ripe for repeating here in California, as fracking has not only been occurring in western Kern County, but also in places in Ventura, Los Angeles and Orange Counties (according to maps accessed at Senate Bill 4, representing California’s attempt at the regulation of hydraulic fracturing, has been interpreted by different commentators as either preempting local regulation of fracking, or not preempting local action. Until the courts clearly indicate that local action is preempted, California may be in for a swell of municipal bans, moratoria or other ordinances attempting to regulate fracking.

Second, the Center for Biological Diversity, along with Earthworks and Clean Water Action, released a report on March 14, “On Shaky Ground: Fracking, Acidizing, and Increased Earthquake Risk in California.” This report highlights the observation in other parts of the country that the use of fracking and wastewater injection wells seems to usher in increased earthquake activity, and cites to a growing body of literature identifying those activities as causes for the increased seismic activity. Specifically, it points to wastewater injection wells as being the cause of several earthquakes around the country of magnitudes 4 and 5, and to fracked wells having caused smaller, but still noticeable, earthquakes. Because there are still large gaps in our understanding as to how and to what extent these activities can cause earthquakes, the authors of the study recommend a ban on fracking and a prohibition on wastewater disposal that does not account for all seismic risks.

It is not surprising that this is the conclusion of the report, insofar as the Center has been adamantly opposed to fracking in California. However, the issue would seem to be one that would likely have traction with the public. Furthermore, it seems like an issue ripe for raising in comment letters challenging the adequacy of CEQA documents dealing with fracking projects. For instance, the State’s Division of Oil, Gas, and Geothermal Resources (DOGGR) is in the midst of preparing the statewide fracking EIR that is mandated by Senate Bill 4, and Kern County (where the great bulk of fracking in California is located) is also preparing an EIR regarding an amendment to the County’s oil and gas provisions that has been proposed by industry and which would address, among other topics, well stimulation (which includes fracking). Given the Center’s and others’ conviction that we do not know enough yet about induced seismicity from hydraulic fracturing, it seems likely that the Center’s report, along with the scientific studies it cites to, will be used to attack these and other CEQA documents. CEQA lead agencies and industry should therefore be prepared to account for such impacts and address the body of literature that is accumulating on this topic in order to create defensible CEQA documents.


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