Judge Dismisses Sierra Club Lawsuit Aimed at Shutting Down Wastewater Injection in Oklahoma

A federal judge this week dealt a major blow to the Sierra Club’s efforts to use a backdoor tactics as a means to ban wastewater injection in Oklahoma.

U.S. District Court Judge Stephen Friot on Tuesday dismissed a Sierra Club lawsuit that attempted to impose federal rules on wastewater disposal and earthquake monitoring in Oklahoma via the Resource Conservation Recovery Act (RCRA).

The lawsuit was premised on the false notion that the Oklahoma Corporation Commission — which has primacy over the U.S. Environmental Protection Agency’s (EPA) Underground Injection Control (UIC) program — is doing an inadequate job implementing induced seismicity mitigation measures. But as Judge Friot noted in his decision, the federal court not only does not have jurisdiction to implement the duplicative measures Sierra Club suggests in its suit — Sierra Club’s claim that the OCC’s efforts to mitigate induced seismicity have been inadequate are simply false. From Judge Friot’s decision,

“Although plaintiff argues that this court has exclusive jurisdiction over RCRA claims, the primary relief plaintiff seeks is the immediate and substantial reduction of the amounts of wastewater injected by defendants. This relief may be obtained from the OCC. In fact, the OCC has been taking the action requested by plaintiff, and its latest directive is mandatory.

“Both federal and state law have made the OCC the primary regulator of Class II wastewater injection wells in Oklahoma. The OCC has established and is operating its own authorized program to regulate these wells. As part of its authority, the OCC has taken action to address the seismic activity which plaintiff maintains is linked to the Arbuckle disposal wells.”

Judge Friot’s decision goes on to list the numerous mandatory measures that have enacted by the OCC (see a full list here). Collectively, these measures have resulted in wastewater reductions of 800,000 barrels a day below 2014 levels, affecting roughly 700 disposal wells covering 11,000 square miles. As the decision notes,

“The OCC, as discussed above, has implemented a traffic light system for disposal well permits, has issued new rules for wells that dispose wastewater in the Arbuckle formation, and has issued directives either to reduce disposal of wastewater in the Arbuckle formation or to stop operations altogether. It has also recently issued a new directive aimed at limiting the future growth of disposal rates into the Arbuckle formation. As will be seen, it is worthy of note that the OCC’s recently-promulgated directives are mandatory.”

The decision also notes that state-level regulation is appropriate in Oklahoma due to extensive OCC expertise that the court lacks. Furthermore, recent evidence points to the fact that the OCCs efforts to mitigate induced seismicity are proving effective.

Since mandatory wastewater volume reductions have been implemented, Oklahoma Geological Survey (OGS) and United States Geological Survey (USGS) data show Oklahoma has seen a 31 percent reduction of magnitude 3.0 or greater earthquakes from 2015 to 2016. USGS and OGS data posted daily on show that rates of M-2.8 or greater earthquakes decreased 84 percent in the first three months of 2017 when compared to January through March 2016 (388 to 62).

Even though Tuesday’s decision effectively derailed one anti-fracking group’s thinly veiled efforts to ban oil and gas development in Oklahoma, another similar effort has emerged on the horizon.

Clean Water action released a report on Tuesday saying the OCC has permitted 18 wastewater injection wells into aquifers pure enough to be considered “underground sources of drinking water” (USDW) by the Safe Water Act.

But as EID recently highlighted, this is just the latest attempt by activists to spread confusion and exploit EPA’s misleading definition of USDWs. Fact is, some USDW’s are actually located in oil- and gas-bearing zones and are, understandably, far too far high in salinity to ever actually be considered safe for drinking. OCC has confirmed such is the case regarding the 18 instances in question in the CWA report.

As E&E News reported Wednesday,

“USDWs don’t necessarily have water that people could or would drink. They can have salty water with ‘total dissolved solids’ of up to 10,000 milligrams per liter (mg/l). Water over 500 mg/l is thought to be unfit for human consumption. But federal law requires that USDWs be protected in case the water is ever needed.”

Groups like CWA and Sierra Club continue to mislead the public on these issues regarding injection wells with one core goal in mind — banning wastewater injection, which would not only effectively ban fracking, but oil and gas development altogether.

Such actions would be devastating in states like Oklahoma, where the oil and natural gas industry has accounted for nearly two-thirds of all jobs created in the state since 2010. Roughly one in every five jobs statewide is supported by oil and natural gas development, and the industry is the “largest single source of tax revenue,” according to a 2014 report prepared for the State Chamber of Oklahoma.

Fortunately, Tuesday’s court ruling stopped Sierra Club’s ideologically-driven efforts, but CWA’s tactics show that further challenges remain.

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