Court hands enviros big win on fracking review

By Ellen M. Gilmer | 09/07/2016 07:48 AM EDT

Environmentalists notched a major victory on hydraulic fracturing yesterday when a federal court ordered the Obama administration to conduct additional environmental review for fracking on public lands in California.

The decision, from the U.S. District Court for the Central District of California, is the first major ruling on environmental review for fracking during the federal government’s land-planning phase. The court found that the Bureau of Land Management failed to adequately analyze fracking’s impacts when it crafted a resource management plan (RMP) and related environmental review for more than 1 million acres in the Golden State’s central region.

Judge Michael Fitzgerald, an Obama appointee, ordered BLM to conduct a supplemental environmental impact statement (EIS) to give greater consideration to fracking’s risks, which he noted could include groundwater contamination, seismicity and chemical leaks.


"Although the parties disagree as to whether these concerns are well-founded, the Bureau acknowledges that fracking is, at a minimum, a controversial national issue," he wrote in his order.

The Center for Biological Diversity and Los Padres ForestWatch challenged the agency’s RMP last year, arguing that the agency’s development plan for lands in the Central Valley, San Joaquin Valley and southern Sierra Nevada and along the central coast referenced fracking only three times and did not consider new research on its impacts. The National Environmental Policy Act requires federal agencies to prepare supplemental environmental impact statements when significant new information comes to light (EnergyWire, June 11, 2015).

BLM has argued that the environmental groups’ lawsuit is not appropriate at the RMP stage because they have opportunities to participate in and challenge the NEPA process during leasing and permitting. But Fitzgerald rejected the argument, noting that the agency had an obligation to consider the impacts of a technique unquestionably expected to play a leading role in future development of the RMP area.

"The Bureau was not only aware of the projected growth in the use of fracking but also estimated that 25% of new wells in the Decision Area are expected to be fracked the future," Fitzgerald wrote. "Yet aside from these three isolated and passing references to fracking in the [RMP], the 1,073-page document makes no mention of fracking at all, let alone a meaningful discussion to inform decision-makers and the public of the attendant environmental concerns unique to fracking."

Environmentalists hailed the decision as a major step toward closer review of fracking.

"We are still digesting the decision, but it is without question a significant victory," Earthjustice attorney Greg Loarie, who is representing the groups, said in an email. "Our hope is that the decision will finally put an end to BLM’s practice of rubber stamping of fracking in California. Fracking is bad policy under any circumstance, but in a drought fracking is plain insane. We need to be conserving our groundwater, not polluting it."

The only similar decision on fracking came in 2013 from the neighboring Northern District of California, which found that BLM failed to consider fracking’s impacts during the leasing stage.

Los Padres ForestWatch Executive Director Jeff Kuyper said in a statement that he hoped the ruling would spur additional protection of public lands in California. CBD’s conservation director, Brendan Cummings, said the court’s decision should serve as a warning to the Obama administration to "end this reckless rush to auction off our public land to oil companies."

BLM did not respond to a request for comment, nor did representatives for the Western States Petroleum Association or the Western Energy Alliance.