A proposed ban on hydraulic fracturing, or fracking, in the City of Los Angeles recently stalled in the Department of City Planning.
The proposed ban arose from a pair of motions adopted by the City Council earlier this year. The first motion, sponsored by Council Members Paul Koretz and Mike Bonin and adopted on February 28 (pdf), directed the Department to prepare “an ordinance to change the zoning code to prohibit all activity associated with well stimulation, including, but not limited to, hydraulic fracturing, gravel packing, and acidizing, or any combination thereof, and the use of waste disposal injection wells in the City . . . .” The second motion, sponsored by Council Members Bernard Parks and Jose Huizar and adopted on March 5 (pdf), directed the Department “to report on establishing land use regulations and zoning laws . . . that would ensure that public health and safety is protected from the negative impacts of fracking activities.”
Responding to the Council’s direction, the Department released a report on November 5 (pdf). Rather than prepare an ordinance banning fracking or other well stimulation technologies, the report recommends that the City pursue new land use and zoning regulations that would result in new performance standards and mitigation measures, as well as proactive code enforcement to protect health and safety, in an effort to alleviate the perceived impacts of oil and gas activity throughout the City. The report further recommends that a technical expert be retained, one with expertise in petroleum and natural gas engineering or geology, to assist with the development of such regulations.
The report acknowledges the statewide legislative and regulatory scheme currently in place to govern hydraulic fracturing in California, including the interim regulations promulgated by the Division of Oil, Gas & Geothermal Resources (DOGGR), and the upcoming permanent regulations that will take effect in 2015, as mandated by SB 4 (pdf). Despite such regulations, the report argues that the City is not preempted from establishing traditional land use and zoning regulations that would dictate where oil and gas activity takes place. The report acknowledges the “legal uncertainty around the extent of local government authority to regulate or prohibit well stimulation treatments” and expresses some concern that a complete ban on fracking could be preempted. Such concerns arises, at least in part, from a recent lawsuit filed by the Western States Petroleum Association (WSPA) in response to a fracking ban in the City of Compton (pdf). Compton’s ban is analogous to the ban proposed by Los Angeles in that it would make it “unlawful to use or cause to be used hydraulic fracturing, acidizing, or any other well stimulation treatment in conjunction with the production or extraction of oil, gas or other hydrocarbon substances from any surface location in [Compton] or from any site outside [Compton] where the subsurface bottom hole is located in [Compton].” The WSPA lawsuit contended, among other things, that the Compton ban was preempted by statewide regulation of fracking, specifically including the recently enacted SB 4. The suit also relied on a 1976 California Attorney General opinion (59 Ops. Cal. Atty. Gen. 461), which concluded that state regulation of oil and gas well drilling and production activities preempts certain local regulations:
Particularly, where the state regulation approves of or specifies plans of operation, methods, materials, procedures or equipment to be be used by the well operator or where activities are to be carried out under the direction of the Supervisor, there is no room for local regulation. It appears from our review that for the most part such activities are confined to down-hole or subsurface operations.
Industry has long contended that this opinion confirms the preemption of ordinances such as those proposed by Los Angeles and Compton, which would ban specific down-hole practices such as hydraulic fracturing. Local governments have attempted, and will undoubtedly continue to attempt, to characterize their regulatory efforts in the nature of land use or zoning regulations, which the Attorney General opinion would appear to condone:
With regard to state regulation for other purposes, such as land use control and environmental protection, the state has not fully occupied the field; and more stringent, supplemental regulation by cities and counties is valid to the extent that it does not conflict with, interfere with, or frustrate the state’s regulation for purposes of conservation and protection of the resources.
Whether this struggle over the authority of local governments to regulate hydraulic fracturing will be resolved in the Compton case is uncertain, as Compton rescinded its ordinance in September. But the issue will continue to be raised, and likely litigated, elsewhere in California, particularly in light of recent anti-fracking initiatives adopted in San Benito and Mendocino Counties.
Ultimately, the Department’s report on the proposed Los Angeles ordinance “recommends against pursuing interim or permanent regulations governing well stimulation at this time” and instead proposes the retention of a technical expert to help the City improve the way it regulates and administers oil and gas activity.
Unsurprisingly, the sponsors of the proposed ordinance were dissatisfied with the Department’s failure to produce an ordinance. Council Members Koretz and Bonin sent a letter to the Department, writing that “the council . . . asked for a draft ordinance establishing a fracking moratorium for its consideration, not a report without an ordinance attached.” The letter added that “[a]s your report points out, the city’s permitting and regulatory structure for oil and gas drilling in neighborhoods in Los Angeles is woefully inadequate and outdated. This makes a safety-first approach all the more necessary, and a moratorium all the more urgent.”
We will continue to monitor developments in Los Angeles’s efforts to regulate hydraulic fracturing and provide updates as warranted.