Federal Judge Bans Fracking Off the California Coast

Published February 4, 2019

A judge has barred the federal Bureau of Ocean Energy Management (BOEM) from issuing permits for hydraulic fracturing in U.S. territorial waters off the coast of California.

Ruling in Environmental Defense Center v. Bureau of Ocean Energy Management in late November 2018, federal District Court Judge Philip Gutierrez stated BOEM violated both the Endangered Species Act and the Coastal Zone Management Act by failing to consult adequately with the U.S. Fish and Wildlife Service (FWS), the National Marine Fisheries Service, and the California Coastal Commission before issuing permits to drilling companies.

The drilling technique was not at issue in the suit.

Fracking Production

Hydraulic fracturing, commonly referred to as “fracking,” is process used to extract diffuse natural gas and oil deposits situated deep beneath the Earth’s surface in shale rock formations.

The U.S. Energy Information Administration reports fracking operations have accounted for most of the new wells drilled and completed in the United States since late 2014.

The Environmental Defense Center (EDC) activist group sued to block offshore fracking in November 2016, arguing BOEM should require the companies involved to complete a formal environmental impact statement under the 1970 National Environmental Policy Act (NEPA) to ensure new oil and gas production would not harm “environmentally sensitive areas” such as the Channel Islands Marine Sanctuary and Channel Islands National Park.

EDC also claimed BOEM had not considered the potential impact of new oil and gas production offshore on a variety of species listed as endangered or threatened, and thus given heightened levels of protection under the 1973 Endangered Species Act.

Partial Victory

Gutierrez delivered only a partial victory to EDC.

Gutierrez agreed with EDC’s ESA-related argument, ruling BOEM had failed to study and consult with FWS concerning the potential effects of offshore fracking on 25 endangered or threatened species, including the blue whale, the black abalone, the Southern sea otter, and the Western snowy plover.

Gutierrez rejected EDC’s NEPA claims, ruling the existing environmental assessment already conclusively showed fracking at these platforms would not impact sensitive or protected areas.

‘Complexities and Massive Costs’

Industries have to comply with so many costly environmental laws and regulations it is hard to keep track of them all, says William Shughart, research director at the Independent Institute and a policy advisor to The Heartland Institute, which publishes Environment & Climate News.

“The ruling illustrates the complexity and massive costs of federal environmental laws,” said Shughart. “In response to lawsuits filed by the State of California and environmental interest groups, the oil companies who applied for offshore fracking permits were found to have complied fully with the requirements of NEPA but not with those of ESA.

“Oil deposits in the area where permission to frack has been denied pending further study by the FWS and the California Coastal Commission, already are being recovered by standard deep-water drilling techniques from existing offshore platforms,” Shughart said. “Even [former California governor] Jerry Brown was not convinced that onshore fracking poses an environmental danger, so it’s unclear what offshore fracking’s opponents hope to achieve other than to delay exploitation of valuable energy resources that promise to moderate the [state’s] highest-in-the-nation gasoline and diesel prices.”

‘Weaponized’ ESA

Gutierrez’ decision demonstrates the power of environmental restrictions in the United States, and also how those laws and regulations can be misused to block valuable development, says Jordan McGillis, a policy analyst with the Institute for Energy Research.

“With respect to process, this saga highlights the robust system of checks and balances we have in the United States,” McGillis said. “If we are to agree with Judge Gutierrez that BOEM’s permitting of well-stimulation treatments constitutes ‘agency action,’ then, in accordance with the Endangered Species Act, BOEM is required to consult with the Fish and Wildlife Service.

“What I think needs to be scrutinized is ESA itself,” said McGillis. “That law stands out as one that’s been weaponized by organizations holding what I refer to as a nature-for-nature’s-sake moral premise, as opposed to one that focuses on improving the quality of human life; and lo and behold, groups like the Center for Biological Diversity responded to Judge Gutierrez’s ruling by gleefully deeming it a victory for ‘sea otters and other critters.'”

Timothy Benson¬†([email protected])¬†is a policy analyst with The Heartland Institute.