Environmental groups filed a complaint today in Alameda County Superior Court against the California Division of Oil, Gas and Geothermal Resources (DOGGR) alleging that DOGGR violated the California Environmental Quality Act (CEQA) by issuing permits for oil and gas wells that allowed hydraulic fracturing activities without sufficient environmental review. The complaint alleges that there are several environmental and public health impacts associated with fracking that DOGGR fails to consider in its CEQA analyses for oil and gas well permits. The complaint also alleges that DOGGR improperly excludes new oil and gas well permits from CEQA based on categorical exemptions for minor alternations to land or existing facilities. According to the complaint, DOGGR has never prepared an Environmental Impact Report under CEQA for an individual oil or gas well permit, finding that each well either fell under a categorical exemption or would not have a significant impact on the environment. The plaintiffs, Center for Biological Diversity, Earthworks, Environmental Working Group and Sierra Club, seek a declaratory judgment that DOGGR has failed to comply with CEQA in permitting oil and gas wells and an injunction prohibiting DOGGR from approving new oil and gas wells until DOGGR “complies with its legal requirements to evaluate and mitigate the significant environmental and public health impacts caused by hydraulic fracturing at oil and gas wells.”
The lawsuit, however, is not a typical CEQA action because it does not challenge a particular permit application but rather an alleged “pattern and practice” regarding CEQA for all proposed wells. CEQA is not “a one size fits all” statute. Indeed, CEQA requires that an agency evaluate the “specific impacts” of a particular proposed project to determine the level of environmental review required for that project. This lawsuit asks the court to ignore CEQA’s procedure for conducting a case-by-case fact specific inquiry and to order DOGGR to apply CEQA in a particular uniform way to all future proposed wells, without regard for the actual impacts of those proposed wells. Such a request is highly unusual and arguably in conflict with CEQA’s procedural requirements.
DOGGR has announced that it plans to issue draft regulations specific to fracking by the end of the year and finalize the regulations in 2013.
Co-authored by Michael N. Mills, Kristen T. Castanos and Robin B. Seifried.