By Kyle Ferrar, CA Program Coordinator, FracTracker Alliance
As confusing as you may think the regulatory structure is in your state (if you are not fortunate enough to be a Californian), just know that California’s regulatory structure is more complicated. Nothing in California’s recent history has clarified this point like the current debate over “fracking” regulations (hydraulic fracturing, as well as acidizing and other stimulation techniques). Since the passage of California State Bill 4 (SB-4), there have been significant concerns for self-rule and self-determination for individual communities. Further complicating the issue are the fracking activities being conducted from the offshore oil rig platforms located in federal waters. In addition to federal regulation, the California Department of Conservation’s Division of Oil, Gas, and Geothermal Resources is the premier regulatory authority for oil and gas drilling and production in the state. The State Water Resources Control Board and the Regional Water Quality Control Board hold jurisdiction over the states surface and groundwater resources, while the California Air Districts regulate air quality along with the California Air Resources Board. It is no surprise that a report published by the Wheeler Institute from the University of California, Berkeley found that this regulatory structure where several state and federal agencies share responsibility is not conducive to ensuring hydraulic fracturing is conducted safely.
A Ban in Los Angeles, CA
The most recent local regulatory activity comes from the Los Angeles City Council. On Friday February 28, 2014, the City Council voted on and passed a resolution to draft language for a citywide ban of all stimulation techniques. The resolution calls for city zoning code to be amended in order to prohibit hydraulic fracturing activities in L.A. until the practices are proven to be safe. A final vote will then be cast to approve the final language. If it passes, Los Angeles will be the largest city in the United States to ban hydraulic fracturing. The FracTracker “Local Actions and Regulations Map” has been updated to include the Los Angeles resolution/ordinance, as well as the resolution supporting a statewide ban by the San Francisco Board of Supervisors, the moratorium in Santa Cruz County, and a resolution by the University of California, Berkeley Student Government. See all California’s local actions and regulations in the figure below. Click on the green checked boxes for a description of each action.
Click on the arrows in the upper right hand corner of the map for the legend and to view the map fullscreen.
State Bill 4 Preemption
Since the passage of California’s new regulatory bill SB-4, there has been a lot of confusion and debate whether the new state regulations preempt local jurisdictions from passing their own laws and regulations, and specifically moratoriums and bans. The county of Santa Cruz has a moratorium on fracking, but it was passed prior to the enactment of SB-4. Additionally Santa Cruz County is not a hotbed of drilling activity like Los Angeles or Kern. The team of lawyers representing the county of Ventura, where wells are actively being stimulated, came to a very different conclusion than the Los Angeles City Council. After reviewing SB-4, Ventura County came to the conclusion that lower jurisdictions were blocked from enacting local moratoriums. Draft minutes from the December 17, 2013 meeting quote, “The legal analysis provided by County Counsel indicates that the County is largely preempted from actively regulating well stimulation treatment activities at both new and existing wells. However, the County is required under CEQA to assess and address the potential environmental impacts from such activities requiring a discretionary County approval of new well sites.”
On the other hand, independent analyses of the language in California SB-4 show that the legal-ese does not contain any provision that supersedes related local regulations. Rather, the bill preserves the right of local governments to impose additional environmental regulations. The regulations do not expressively comment on the ability of local regulations to pass a moratorium or permanent ban. Additionally, DOGGR has supported a court decision that the SB-4 language expressly prohibits the state regulatory agency from enforcing the California Environmental Quality Act (according to the Division of Oil, Gas and Geothermal Resources). As for local measures, a recent article by Edgcomb and Wilke (2013) provides multiple examples of precedence in California and other states for local environmental bans and regulations in conjunction with less restrictive state law. Of course, any attempt to pass a ban on fossil fuel extraction or development activities where resource development is actively occurring will most likely be met with litigation and a lawsuit from industry groups such as the Western States Petroleum Association. Industry representatives charge that the ordinance is an unconstitutional “taking” of previously leased mineral rights by private property owners.[5,6] Pay close attention to this fight in Los Angeles, as there will be repercussions relevant to all local governments in the state of California, particularly those considering bans or moratoriums.
 Kiparsky, Michael and Hein, Jayni Foley. 2013. Regulation of Hydraulic Fracturing in California, a Wastewater and Water Quality Perspective. Wheeler Institute for Water Law and Policy. Center for Law Energy and the Environment, University of California Berkeley School of Law.
 Ventura County Board of Supervisors. December 17, 2013. Meeting Minutes and Video. Accessed March 2, 2014. [http://www.ventura.org/bos-archives/agendas-documents-and-broadcasts]
 Edgcomb, John D Esq. and Wilke, Mary E Esq. January 10, 2014. Can Local Governments Ban Fracking After New California Fracking Legislation? Accessed March 3, 2014. [http://californiafrackinglaw.com/can-local-governments-ban-fracking-after-new-california-fracking-legislation/]
 Hein, Jayni Foley. November 18, 2013. State Releases New Fracking Regulations amid SB 4 Criticism, Controversy. Accessed February 27, 2014. [http://blogs.berkeley.edu/2013/11/18/state-releases-new-fracking-regulations-amid-sb-4-criticism-controversy/]
 Fine, Howard. February 28, 2014. L.A. Council Orders Fracking Moratorium Ordinance. Los Angeles Business Journal. [http://labusinessjournal.com/news/2014/feb/28/l-council-orders-fracking-moratorium-ordinance/]
 Collier, Robert. March 3, 2014. L.A. fracking moratorium – the difficult road ahead. Climate Speak. Accessed March 4, 2014. [http://www.climatespeak.com/2014/03/la-fracking-moratorium.html]
 Higgins, Bill. Schwartz, Andrew. Kautz, Barbara. 2006. Regulatory Takings and Land Use Regulation: A Primer for Public Agency Staff. Institute for Local Government. Available at [http://www.ca-ilg.org/sites/main/files/file-attachments/resources__Takings_1.pdf]