The Center for Biological Diversity filed another lawsuit yesterday in Alameda County Superior Court against the California Department of Conservation, Division of Oil, Gas, and Geothermal Resources (DOGGR) challenging permits issued for oil and gas well operations that allow hydraulic fracturing.  This is the second complaint the Center has filed in the past six months against DOGGR relating to fracking activities.  The first was filed in October 2012 under the California Environmental Quality Act.  In that action, the Center alleged that DOGGR failed sufficiently review the impacts of issuing oil and gas permits relating to fracking (see October 16, 2012, post).

In the complaint filed yesterday, the Center alleges that DOGGR’s issuance of permits for well operations that include fracking violates the state’s Underground Injection Control (UIC) program and Public Resources Code.  The Center argues that fracking operations constitute “underground injection” activities regulated by the UIC program and therefore DOGGR must monitor and supervise such activities.  Further, the Center argues that DOGGR, in issuing these permits without investigation and subsequent monitoring or supervision, has failed to take appropriate measures to prevent damage to life, health, property and natural resources as required under the Public Resources Code.  The Center seeks a declaration that DOGGR’s ongoing failure to regulate fracking under the UIC program and to prevent damage to public resources violates state laws, as well as an injunction prohibiting DOGGR from continuing to issue permits for oil and gas well operations that include fracking.

Although the 2005 Energy Policy Act made most forms of fracking exempt from the federal UIC program under the Safe Drinking Water Act, the Center bases its allegations on the assertion that California did not adopt into the state UIC program the amended definition of “underground injection” that excludes fracking.  Nonetheless, the federal program only requires that the implementing states develop a program that is at least as stringent as the federal program, which would allow DOGGR to also exclude fracking from its UIC program.  Previously DOGGR’s position was that the Safe Drinking Water Act fracking exemption also applied to its UIC program and that fracking was “well treatment,” not subject to UIC regulation, rather than “underground injection” as the Center now alleges.  However, DOGGR announced at the end of 2012, in response to an EPA review of its UIC program, that it would initiate rulemaking in 2013 to regulate fracking under its UIC program (see December 3, 2012, post).  Ultimately, if DOGGR moves forward with this rulemaking, it could make the Center’s claims moot.

Co-authored by Michael N. Mills and Robin B. Seifried.

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