Activists: State Fracking Regulations Fall Short

By Paul Rosenberg, Senior Editor

Fracking is the process of injecting a high-pressure mix of water, sand and chemicals into fuel-bearing rock formations to fracture them in order to extract the fuel.

Although fracking dates back to the 1940s, its use has skyrocketed since 2004. This has generated widespread alarm, and even bans based on its health and environmental impacts. But activists say that a new set of state regulations here in California falls far short of the mark.

Fracking is primarily focused on extracting gas from shale formations in the Northeast, along with tight oil (also known as “shale oil”) in a handful of Western states, such as Texas, Utah, Wyoming and North Dakota. In California, fracking has been used more for oil extraction from already-existing wells—though with a now-faded promise of massive new tight oil reserves.

The term is sometimes used more loosely to refer to a broader range of well treatments used to bring hard-to-get fuel to the surface, including the use of acids and other secret substances when not employed to specifically fracture the underlying rock formations.

On June 29, the State of New York instituted a ban on fracking following a promise made by Gov. Mario Cuomo this past December. It was reinforced by the mid-May release of a final report encompassing seven years of research. New York’s action stood in stark contrast to the federal government, which continues to either ignore or downplay the dangers of fracking, and California, whose actions have been decidedly mixed.

On July 1, the Los Angeles Times ran a story headlined, “State issues toughest-in-the-nation fracking rules,” but that characterization is misleading, at best. Environmentalists working on the issue were highly critical of the action’s shortcoming, which came about because of a 2012 law, referred to historically as “SB 4.” Beyond that, neither California nor the federal government appear to be enforcing existing environmental protection laws, as both have just recently been sued by environmentalists for allowing fracking without proper environmental impact studies.

“These regulations went into effect on the first [of July]; the environmental impact report also came out on the first; and the health study—which looks at the health impacts—doesn’t even come out until the ninth,” Jackie Pomeroy, spokesperson for CA Frack Facts, told Random Lengths News the first week in July. “So the regulations that went into effect did not consider any of the environmental or health impacts that were studied under the law.”

When the report did come out, however, it left more questions than answers. Among other things, it concluded that “Direct impacts of hydraulic fracturing appear small but have not been investigated.”

Relatedly, it also stated that, “Operators have unrestricted use of many hazardous and uncharacterized chemicals in hydraulic fracturing.”

And, it went on to say, “The California oil and gas industry uses a large number of hazardous chemicals during hydraulic fracturing and acid treatments. The use of these chemicals underlies all significant potential direct impacts of well stimulation in California.”

The day after the report’s release, more than a dozen groups launched an online petition called “Stop Fracking in California,” and several days later the Los Angeles Times’ editorial board came out for a moratorium, saying: “Pushing forward in the dark isn’t smart. It has long been apparent that a moratorium on major new fracking is in order until more is known about its risks and benefits.”

Typifying the inadequacies of California’s regulatory framework, environmentalists had also objected to the state’s June 24 approval of fracking by nine offshore wells in the Long Beach harbor.

“The fact that the state just approved nine new offshore fracking jobs in the midst of California still suffering from the worst oil spill in the last 25 years, is just a new low,” said lawyer Kristen Monsell, from the Center for Biological Diversity. “Every offshore frack increases the risk of chemical pollution, and another devastating oil spill…Gov. Brown should recognize that halting offshore fracking is critical to protecting marine animals and coastal communities from this toxic practice.”

Monsell was similarly disappointed with the new state fracking provisions.

“Those regulations are weak and will do almost nothing to protect Californians from fracking pollution,” Monsell said. “The rule still allows oil companies to pollute the air, endanger drinking water and produce huge quantities of waste, tainted with chemicals that cause cancer.”

In contrast, “New York just banned fracking and for good reason,” Monsell pointed out. “In announcing the ban, Commissioner Joe Martens said banning fracking is the ‘only reasonable alternative,’ given fracking’s ‘significant adverse impacts to land, air, water, natural resources and potential significant public health impacts that cannot be adequately mitigated.’ Fracking also adds more dirty fuel to the fire cooking our climate.”

Pomeroy also weighed in on this last point: not only is fracking more carbon intensive, burning more carbon to get as much energy as other forms of fossil fuel produce, it also releases unaccounted for quantities of methane, which is “20 times more potent than just regular carbon” in contributing to global warming.

“As New York pulls ahead in the race to save our planet, New York recognized that fracking is incompatible with public health, a technique so dangerous that it can’t be made safe,” Monsell added. “And, it certainly doesn’t belong in our oceans. It’s time for California to catch up, reach the same conclusion and ban fracking.”

Regulators in both states were faced with significant uncertainty, in large part because so much about the chemicals involved is hidden behind claims of “trade secrets.” But the response in the two states could not have been more different, Pomeroy pointed out.

“In New York they said, we don’t have enough research yet, to say whether this is safe or not,’” Pomeroy summarized. “In California, we’ve reversed this regulatory process, and said we’re just going to go ahead, until we find it’s not safe.”

New York’s approach prioritizes public health. California’s prioritizes corporate profits.

Probably the most salient underlying difference between the two states is the role of energy interests in state politics. Although oil company ownership was once heavily concentrated in New York, production activities were never a dominant part of its economy, and the recent explosion of natural gas fracking has given rise to scores of local anti-fracking ordinances throughout the state. An online list of New York municipal actions as of Dec. 30, 2014 included 85 bans, 95 moratoria and 87 movements for prohibitions (bans or moratoria). California, in contrast, has long been a major fossil fuel producer. Oil companies wield considerable power. It’s the only state without a significant tax on oil extraction.

Technological advances and relatively high oil prices have helped fuel the fracking boom nationwide for almost a decade—at least until oil prices plunged this past year. But in California, there was an added incentive, in the form of a projected massive tight oil reserve, according to a 2011 report by INTEK Inc., published by the U.S. Energy Information Administration. This report projected that the Monterey [shale] Formation, which underlies much of California’s oil producing areas, contains an estimated 15.4 billion barrels of tight oil, 64 percent of the entire tight oil reserves in the lower 48 states. The economic impact of such a reserve would have been enormous. A subsequent economic analysis from USC projected as much as a $24.6 billion per year increase in tax revenue and 2.8 million additional jobs by 2020, based on assumptions that Monterey shale could increase total California oil production as much as seven-fold.

This is precisely the sort of giant piggy-bank the oil industry so often presents itself as. Without doubt it had an impact on eroding public criticism of still poorly-understood technology. Then, in December 2013, the Post Carbon Institute and Physicians Scientists and Engineers for Healthy Energy issued a report, “Drilling California: A Reality Check On The Monterey Shale,” authored by J. David Hughes, a Canadian geoscientist, which brought everyone down to earth again, based on a detailed analysis of existing production and comparisons of geological properties in other formations, such as South Dakota’s Bakken formation.

“This was the first empirical analysis that used real geological and oil production data to question the assumptions,” said Seth Shonkoff of Physicians, Scientists and Engineers for Healthy Energy, who edited and reviewed the report.

“The Drilling California report was the first to cast doubt on the U.S. Department of Energy statements that California’s Monterey Formation constituted two-thirds of U.S. tight oil resources,” Hughes said in an interview with Random Lengths News. “The report debunked the pervasive hype, such as the USC economic report on the Monterey, that tight oil production would produce a windfall of California tax receipts and employment. The report and its subsequent confirmation by the U.S. Department of Energy dashed dreams of a hope for tight oil windfall, and allowed California to get on with more realistic planning for its economic and energy future.”

That confirmation came about six months later, in May 2014. It lowered the earlier estimate by 96 percent.

“Our report severely altered the public and policy conversations about the economics and geological basis of such a claim and helped to focus the conversations more on issues associated with existing oil and gas development in California,” Shonkoff added.

And yet, the environmental protection side of things still seems to have been disabled. Even the dubious new protections often don’t apply, particularly to many wells in the Los Angeles basin, Pomeroy said.

“They didn’t include things like well maintenance,” she explained. “What’s happening in LA, these companies are categorizing their stuff as well maintenance, just because they can.”

It’s a meaningless distinction, she pointed out.

“They’re classifying this stuff as well maintenance, even though it uses dozens of tanker trucks full of acid—more acid, in fact, then is used in actual instances of acidization that have been reported.” As a result, “All of that activity is totally exempt from having to comply with SB 4 regulations. There’s no neighbor notification, there’s no basic water testing required. So in LA that loophole in state regulation is having a really big impact.”

These wells are sometimes as close as 20 feet from somebody’s front door.

“There are places in LA, [where] you could throw an empty Starbucks cup and hit an oil well from someone’s window,” Pomeroy said. “It’s that close.”

And that’s not just an isolated home.

“It just multiplies the impact that has on people’s health, because the population is so dense,” she said. “I’m not making is up…There’s an oil site in LA, that’s surrounded on four sides by a Catholic convent, a low-income housing project, an elementary school and a school for mentally disabled adults. Talk about vulnerable populations having to put up with this stuff!”

The state and federal failures to protect the public and the environment have lead the Center for Biological Diversity into legal actions on two fronts, that Monsell directed attention to.

First, in November 2014, the CBD was a plaintiff in a state court suit filed by Earthjustice against the California state agency responsible for regulating oil and gas drilling, the Division of Oil, Gas and Geothermal Resources. The suit concerned 214 Kern County drilling permits granted to Area Energy, of which at least 144 were projected to involve fracking. The complaint began by asserting that division “has consistently failed to live up to its obligations pursuant to California Environmental Quality Act, by permitting oil drilling projects in the South Belridge Oil Field without any kind of environmental review. This permitting is occurring as if CEQA never became law in 1970.”

CEQA provides for different levels of scrutiny, following a preliminary investigation. Environmental impact reports (EIRs) are the best-known kind of process, called for when significant environmental impacts are foreseen, requiring a comprehensive consideration of possible mitigation measures. Federal law has analogous provisions under the National Environmental Policy Act, with a similar level of scrutiny via environmental impact statements (EISs).

In February 2015, the Center for Biological Diversity got involved on a second front in federal court, filing a similar suit involving offshore fracking against the U.S. Department of the Interior and two of its bureaus. It alleged the same sort of failure to abide by National Environmental Policy Act, as well as related violations to three other federal laws, including the Outer Continental Shelf Lands Act and the Coastal Zone Management Act.

“The bureaus have a pattern and practice of rubber-stamping permits to frack with no analysis of the environmental impacts, no determination of whether such activities are consistent with the plans governing oil development and production in the Pacific Region or California’s Coastal Management Program, and no public involvement,” the complaint alleged. “The bureaus’ actions—or lack thereof—violate a myriad of laws,” including those just cited.

Specifically, the complaint went on to note, “the Bureau’s approval of such permits without conducting a comprehensive analysis of the environmental impacts of offshore fracking violates NEPA.” As a result, “These violations of law damage California’s unique and economically significant coastal environment, threaten the health and welfare of coastal communities, and deprive the public of information and participation to which it is legally entitled.”

If taken seriously, California law ought to put an end to fracking entirely Monsell argued.

“As I mentioned, we think that this whole process has been a sham, because they’re ignoring scientific information,” she said, “But as you may also know, CEQA requires the state actors to mitigate any significant environmental impacts, and as we’ve seen from the recent oil spill, there’s really no such thing as safe offshore oil and gas drilling, and transportation. The best way to mitigate these damages is to prevent them from occurring in the first place, by banning fracking, not allowing it in our oceans.”

Pomeroy articulated a related perspective—that of considering the total costs involved in fossil fuel energy production.

“We can’t survive on oil forever,” she observes, but the price of oil is “artificially cheap,” slowing down the transition to renewables, which represent the future. “If they had pay for the externalities of polluting the air, and causing asthma, and polluting the water, and making it so we can’t use aquifers, and impacting food, and all of those things… If you added up all those, the price of oil would be much higher than it is now, and renewables would be a much more viable alternative, much faster.”

This leads her to suggest a market-based solution of sorts:

“If I had to take an approach, it would be accurately force the cost of the stuff on society, and then let the market decide,” Pomeroy said. “I’m pretty sure once all these costs are taken into account it would be a totally different picture.”