California Contests Trump Administration’s Actions on Fracking Rule

On January 17, 2018, the Office of the Attorney General for California filed a lawsuit against the Trump Administration, following its repeal of a 2015 rule regulating hydraulic fracturing on federal and Native American lands. The state of California contends that the repeal of the rule is the result of superficial calculations and lacks a proper legal justification. These allegations point to the fact that the rule provides ad hoc and necessary regulations that were the result of careful study, whereas the repeal seems to have gone through a less scrupulous process lacking legal and factual backing.

The rule, "Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands," was issued by the Bureau of Land Management (BLM) under the Obama Administration at the end of March 2015. The rule was the result of a process started in 2010 when the BLM held a public forum to address the growing public concern over hydraulic fracturing, an industrial process for extracting underground oil and gas that quickly became widespread in the energy sector. The BLM held numerous meetings with public and state authorities, as well as with tribal officials, and published two proposed rules. The final 2015 rule includes more specific and more up-to-date provisions. If previous regulations set the basis for ensuring that hydraulic operations are carried out in an environmentally responsible way, the 2015 one further clarifies and strengthens these regulations and, most importantly, focuses on the protection of federal lands and on the preservation of the rights of tribal and non-tribal communities.

It is specifically on this last point that Attorney General Xavier Becerra is building his case. Forty-five percent of California’s land is publicly owned, managed by federal, state and local agencies and private organizations. Specifically, the BLM manages 15 million acres of these lands (roughly 15 percent of California’s total lands) and 47 million acres of subsurface mineral estate. In these territories, there are more than 600 leases for almost 8,000 usable oil and gas wells over more than 200,000 acres. These numbers make California a leading state in terms of oil and gas extraction on public lands, with a yearly production of roughly 15 million barrels of oil and about 7 billion cubic feet of natural gas. In terms of hydraulic fracturing, the Golden State also ranks sixth in the number of fracked wells on federal lands in the country.

California is also home to approximately 109 federally-recognized Native American tribes, making it the state with the largest number of distinct tribes and the largest overall population of Native Americans. California has a history of protests against the development of oil and gas infrastructure. These protests have seen the participation of major national environmental entities, including Native American grassroots organizations. The repeal of the rule has also stirred other tribal communities around the country. Outside California, the Navajo organization Diné CARE (Citizens Against Ruining our Environment) has filed a lawsuit against the repeal along with other environmental organizations, including the Sierra Club and the Center for Biological Diversity.

Over the last few years, other communities in California have been vocal against hydraulic fracturing. Representatives of Southern California's Latino population, specifically in the Kern and Los Angeles counties, have grown increasingly concerned with the health of Latino students in public schools located close to fracking wells. According to the Natural Resources Defense Council (NRDC), 45 percent of the 5.4 million people living within one mile of active or new oil and gas wells in California are Latino. Those percentages rise in Kern County (64 percent of people within one mile) and in Los Angeles County (67 percent of people living within a quarter mile). In 2015, a father of children attending school in Kern County sued Gov. Jerry Brown and the state Division of Oil, Gas, and Geothermal Resources. The Center on Race, Poverty, & the Environment, which represented the man in court, stated that over 60 percent of the 62,000 California children who attend school within one mile of a stimulated well are Latino.

Even though numerous environmental associations, grassroots organizations, tribes, and local communities are backing California against the repeal, there are some who had opposed the rule since 2015. Shortly after it was finalized, the new BLM regulation was challenged in Federal District Court in Wyoming. As early as March 26, 2015, the states of Colorado, Wyoming, Utah, and North Dakota, along with the Ute Tribe, the Independent Petroleum Association of America, and the Western Energy Alliance requested an injunction preventing the BLM from applying the fracking rule. The petitioners contended that the rule should have been set aside because it was arbitrary, not in accordance with existing law, and exceeded the BLM's authority and statutory jurisdiction. The District Court intervened in favor of the petitioners’ claim and set aside the rule in June 2016. Both the BLM and environmental organizations appealed against the Court’s decision. Finally in July 2017, the BLM issued its proposed repeal.

After stating that the rule functioned as a “much needed complement to existing regulations” in 2015, the BLM, only two years later, affirmed that the very same rule “unnecessarily burdens industry with compliance costs and information requirements that are duplicative of regulatory programs of many states and some tribes." Citing BLM's sudden change in attitude, Attorney General Becerra contends that the agency has not given a valid or substantiated explanation for the rule's repeal. If California's line of action proves successful, this could have important consequences for future cases attempting to slow the use of fracking in the United States and could produce industry regulations at both state and federal level.

 

Author: Pietro Morabito