On Friday, September 20, 2013, just days after indicating his support for the bill, Governor Jerry Brown signed SB 4, which establishes a permitting system for the fracking of new oil and gas wells. The Department of Conservation, Division of Oil, Gas and Geothermal Resources (DOGGR) is now officially tasked with developing the permitting program…

This week, the Ninth Circuit Court of Appeals issued its decision in Rocky Mountain Farmers Union v. Corey, ruling on the constitutionality of California’s Low Carbon Fuel Standard (LCFS).  The Court of Appeals reversed the District Court’s holdings in large part, in particular finding that the LCFS does not on its face violate the…

Just hours after the California Assembly voted to pass the remaining bill on hydraulic fracturing, SB 4, the California Senate voted to concur with the Assembly amendments. The next stop for the bill is the Governor’s desk. Governor Brown’s administration had previously indicated concern regarding the broad scope of the bill, which was amended in the Assembly to include other well stimulation activities including acid treatment. If the Governor vetos the bill, it can be overriden by a two-thirds vote in both houses, which is a strong possibility given the breakdown of the votes cast to pass the bill.
Continue Reading California Legislature Passes Fracking Bill

Today the California Assembly passed the controversial bill regulating hydraulic fracturing, SB 4. The bill has been criticized by both industry groups and environmental organizations. Industry has argued that the bill is overbroad for including other types of well stimulation techniques, including acid well treatments, and creating a permitting scheme that subjects each decision to stimulate a new well to the California Environmental Quality Act. On the other end of the spectrum, the Center for Biological Diversity claims that only a moratorium on fracking would adequately protect the public and the environment.
Continue Reading California Assembly Passes Fracking Bill

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.
Continue Reading Judge Upholds DOGGR’s Application of UIC Fracking Exemption

At the end of last week, the Assembly Committee on Appropriations advanced the remaining bill regarding hydraulic fracturing, SB 4, to the Assembly Floor. After delaying the first scheduled vote on the bill, Appropriations advanced the bill without amendment. Since advancing to the floor, SB 4 has been amended to require the development of a reporting website and groundwater modeling criteria.
Continue Reading Assembly Committee Advances Fracking Bill to the Floor

Authored by Carissa Beecham

In Friends of Oroville, et al. v. City of Oroville, et al. (“Friends of Oroville”) (filed and published in part on August 19, 2013), the Third District Court of Appeal partially reversed the trial court in finding that the City of Oroville’s (“City”) EIR improperly analyzed the greenhouse…

The Assembly Committee on Appropriations failed to reach a decision at yesterday’s hearing on SB 4 – the lone surviving bill relating to hydraulic fracturing in the California Legislature. Appropriations delayed a vote on the newly amended SB 4 for another two weeks after hearing extensive testimony on the bill. At the hearing, representatives on both sides of the issue rejected the bill. Industry representatives argued that the bill is too broad for regulating acid injection in addition to fracking. Meanwhile, environmental groups asserted that the bill is too lenient on fracking fluid disclosure requirements.
Continue Reading Still No Agreement on Remaining Fracking Bill

Last week, the Bureau of Land Management (BLM) issued a notice of intent to prepare an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA) to address hydraulic fracturing on federal lands in central California. BLM indicated that the EIS would consider the potential impacts of fracking and other well stimulation techniques associated with oil and gas leases and may result in an amendment to the resource management plan (RMP) for the Hollister Field Office.
Continue Reading BLM Announces an Environmental Assessment to Address Fracking in California

In Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (filed August 5, 2013) (“Neighbors”), a majority of the California Supreme Court justices announced a new rule regarding the baseline agencies may use when conducting a CEQA analysis of a project’s environmental impacts. Specifically, the Court ruled that CEQA does not prohibit the exclusive use of projected future conditions provided that there is substantial evidence in the record that the use of an existing conditions baseline would “tend to be misleading or without informational value.” Although the Court majority held that the respondent agency in Neighbors used the wrong baseline under this standard, a plurality of the Court upheld the project approval on the ground that the agency’s error was not prejudicial.

Neighbors involved a CEQA challenge to the Exposition Metro Line Construction Authority’s (“Authority”) approval of a light-rail project running from Culver City to Santa Monica. In December 2009, the Authority published its final Environmental Impact Report (“EIR”) and, in February 2010, it certified the EIR’s compliance with CEQA. Subsequently, opponents of the project, Neighbors for Smart Rail (“Neighbors”), challenged the project’s compliance with CEQA. Both the superior court and appellate court upheld the project’s CEQA analysis. The Supreme Court accepted certioari on two questions: did the Authority’s EIR violate CEQA because (1) it exclusively analyzed future conditions as a baseline for assessing the project’s environmental impacts, and (2) it used an impermissible mitigation measure to offset the project’s environmental impacts?

Writing for the majority, Justice Werdegar resolved an appellate court split of authority concerning the exclusive use of future conditions as a baseline for assessing project impacts. On one side of the split were the appellate opinions in Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351 and Madera Oversight Coaliation, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, both of which held that the use of a single future condition baseline was a per se CEQA violation. The appellate court opinion in Neighbors, on the other hand, held that future conditions could properly be used as baselines so long as they were reliable, provided relevant information, and permitted informed decisionmaking.Continue Reading CEQA Baseline Analysis: Future Conditions Baseline Should Be the Exception Not the Rule When Agency Reviews Environmental Impacts, Says Divided California Supreme Court

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