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Although additives in white glue have not contaminated entire aquifers or killed many livestock, the point is clear: The industry feels that the proposed regulations are sufficient. To go beyond, to demand that citizens know what's being injected into the ground, is an unnecessary intrusion.
Throughout the nation, government regulations — and proposed ones — concerning fracking are either weak or nonexistent. Moreover, public agencies in charge of enforcing the rules on the books have been exceedingly lax, environmentalists say. As a result, the Center for Biological Diversity is pursuing multiple lawsuits to compel federal and state authorities to enforce the existing rules. Last August, the environmental group also launched federal litigation challenging the Bureau of Land Management for allegedly failing to properly evaluate hydraulic fracturing's threats to endangered species on public land leased for oil and gas activities in California.
Then in October, the Center for Biological Diversity, along with Earthworks, Environmental Working Group, and the Sierra Club, represented by Earthjustice lawyers Will Rostov and George Torgun, filed suit against DOGGR. The suit contends that state regulators violated environmental disclosure and analysis requirements when issuing permits for fracked wells. Last month, the Center for Biological Diversity also argued in court that state regulators have failed to enforce existing California oil and gas laws that cover "any injection" by oil and gas companies into the earth.
"The state is not enforcing its own regulations that require oil and gas companies to comply with a number of requirements prior to conducting any injection," said Siegel of the Center for Biological Diversity. "The state asserts that fracking is not covered by the regulations. We think this is absurd because fracking is by its very nature 'injection.' If we prevail, oil and gas companies would have to disclose detailed information about their injection plans, including all of the chemicals in the fracking fluid, conduct engineering tests, and submit information to show that the fracking fluid will not contaminate groundwater before they would be allowed to frack."
Two bills introduced in the current legislative session aim to better define fracking and require more disclosure of the chemicals used. Senate Bill 4 by Senator Fran Pavley and Assembly Bill 7 by Assemblyman Bob Wieckowski would require an operator to file with the supervisor or a district deputy a thirty-day notice of intention to commence hydraulic fracturing treatment containing specified information. The bills would also require the hydraulic fracturing to be completed within one year of the filing of the notice of intention to commence hydraulic fracturing. Further, the bills would require DOGGR, within ten days of the receipt of the notice of intention, to make the notice publicly available, to post it on the division's website, and to notify the appropriate regional water quality control board. The bills, however, would allow oil and gas companies to withhold "trade secrets" from the public — although they would have to disclose them to state regulators.
Going one step beyond regulation, some legislators, citizen groups, and environmentalists have called for an outright ban on fracking in the state. San Francisco-based environmental organization Food and Water Watch is working on such a bill and is hoping to partner with Assemblywoman Holly Mitchell, who co-sponsored the failed Assembly Bill 978 — a moratorium on fracking that would have gone into effect on January 1 had it passed. Food and Water Watch also is meeting with Bay Area legislators, hoping one or more might co-sponsor the bill.
There are others, meanwhile, who view the conflict over fracking as part of a broader spectrum of issues concerning democracy and the balance of power, especially in relation to corporate control over the decision-making process. "If Californians can't do anything to stop fracking until faucets in San Louis Obispo can be torched, it's because people continue to be hypnotized by the regulatory fallacy," said Ben Price of the Community Environmental Legal Defense Fund. "It places the burden of proof on the community, rather than on the corporations. It says that unless you have data to show that the groundwater will certainly be poisoned, then you have no grounds for prohibiting the drilling.
"We start from the premise that the people in the community may use their judgment and whatever information they decide to trust, and that they have full authority, based on that judgment, to prohibit chartered corporations from behaving in ways the community judges would pose a greater threat than the people are willing to accept," he continued.
The Bureau of Land Management, meanwhile, is planning another lease sale in May. Formal protests are unlikely to halt the proceedings; they haven't done so in the past. In a recent hearing before a Senate rules committee, DOGGR officials implied that regulations would be ready by March of this year. Given the expected timeframes, the agency's history of industry accommodation, and the "all of the above" energy policy favored by Governor Jerry Brown's administration, it is unlikely that the draft regulations will be revised significantly before implementation.
"The administration, including state regulators, are not enforcing current law, and they have proposed extremely weak new regulations," said Siegel. "The Brown administration has consistently favored the interests of the oil and gas industry over the public."
Correction: The original version of this story erroneously stated that Aera Energy LLC is a subsidiary of Chevron. Aera is jointly owned by affiliates of Shell and ExxonMobil.
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