Court: Monterey County’s Measure Z, the fracking “ban” that wasn’t, preempted by state law
2017 ended on a note of common sense when on December 28, Monterey County Superior Court Judge Thomas Willis issued a strongly argued “intended decision” on Measure Z, the activist attempt to ban all oil and gas development in the County through a prohibition on fracking, even though the technique is not even used in Monterey County. Measure Z also prohibits drilling new wells, and produced water injection.
Because no two states are the same in terms of geology or politics, the EPA generally devolves regulation of down-hole oil and gas activities to the states, and the same is true in California. The Division of Oil, Gas and Geothermal Resources (DOGGR) is the primary regulator of oil and gas and it oversees the most sweeping and strict rules on energy development in the nation, including specific rules governing fracking. The EPA has also specifically named DOGGR as having primacy over injection wells.
After the passage of Measure Z, a number of energy companies and royalty holders filed suit based on precedent and the letter of the law: that DOGGR’s regulatory authority preempts county or local regulations that might contradict state regulations.
Judge Willis agreed that Measure Z’s attempt to ban all oil and gas activity was preempted by state law. Monterey County Weekly published excerpts from the Judge’s decision:
“’California’s state oil and gas legal and regulatory scheme fully occupies the area of the manner of oil and gas production,” Wills writes of the wastewater injection ban, adding that the measure’s restriction on “particular production techniques” is “‘in conflict with general law,’ and is therefore preempted.”
Wills also writes that under the federal Safe Drinking Water Act, prior case law states that Congress intended for states to retain authority regarding underground injection “‘so long as it does not impinge'” on the underground injection program administered by the state Environmental Protection Agency.
“There is a significant difference between stringent regulation and outright proscription,” Wills writes.
As to the question of whether or not the county can ban new wells, Wills writes that is also preempted by state and federal law for similar reasons, as the oil operators successfully demonstrated to the court that the ban would also prohibit new wastewater injection wells, which are necessary to the operation, and would therefore effectively ban wastewater injection, which Wills ruled is under the jurisdiction of state and federal regulatory schemes.” [emphases added]
The Court recognized Measure Z for what it was – and what many “anti-fracking” measures around the country are: an attempt to ban all oil and gas development under the guise of banning fracking.
Oil and gas production in Monterey County, as in the rest of California, produces high-quality jobs, reduces our dependence on foreign oil, improves global carbon emissions because we produce under much stricter environmental protections that the countries from which we would otherwise import our energy, and contributes billions of dollars to fund necessary public services.