Court upholds ban on offshore fracking
A federal appeals court barred the government Friday from approving oil drilling off the California coast that relies on fracking, the injection of high-pressure water and chemicals into the earth to release oil deposits, until U.S. officials study potential dangers to the environment and marine life and consider alternatives.
The issue came to light in 2012 when an environmental group discovered that Interior Department agencies under President Barack Obama had issued 51 permits for fracking, or hydraulic fracturing, to stimulate wells in the Outer Continental Shelf off California without any environmental review. After being sued by environmentalists and the state, the administration conducted an environmental assessment in 2016 but found no prospect of significant harm and said more permits could be issued.
In December 2019, however, a federal judge in Los Angeles halted offshore fracking permits and said the government had failed to consider potential harm to endangered species. On Friday, the Ninth U.S. Circuit Court of Appeals in San Francisco went further and said that the government’s 2016 assessment was flawed and that it must conduct a full environmental review and consider restrictions on drilling and fracking.
Rather than taking into account the likelihood of harm to sea creatures and the environment, “the agencies decided to let fracking proceed unregulated,” Judge Ronald Gould said in the 3-0 ruling. He said the government also violated federal law by failing to consider whether its plans were consistent with California’s federally approved Coastal Zone Management Program, which regulates development along most of the state’s coastline.
“This is an amazing victory for California’s coast and marine life,” said Kristen Monsell, an attorney with the Center for Biological Diversity. “This decision will prevent more toxic chemicals from poisoning fish, sea otters and other marine life. And it brings us a step closer to ending offshore drilling once and for all.”
More praise came from state Attorney General Rob Bonta, whose office also challenged the fracking program.
“Offshore drilling — particularly fracking — pollutes our waterways, damages our environment, and exacerbates climate change,” Bonta said in a statement. “We saw the risks of offshore drilling firsthand with the Huntington Beach oil spill last year, and we see it every day in the form of the climate crisis.” The spill, from a ruptured pipeline, released about 25,000 gallons of oil off the Orange County coast.
During negotiations in the case, the state suggested measures short of an outright ban on fracking — such as prohibiting it only at certain times and places, limiting the number of discharges per year and publicly disclosing all chemical additives — but the federal government rejected them.
The fracking program has been defended in court by both the Trump and Biden administrations, and oil companies have filed legal arguments in their support. While expressing some reservations about offshore oil drilling, President Biden has continued to issue drilling permits.
In California, by contrast, Gov. Gavin Newsom signed an order in April 2021 prohibiting any new fracking permits after 2023, which would effectively ban the practice in the state a year later.
The case involved waters more than three miles off the coast, which by law are regulated by the federal government with input from the states. Fracking was classified as a “wellstimulation treatment,” which can extract oil unavailable by conventional methods.
The court said the government’s findings in 2016 of no significant environmental impact ignored evidence that discharges from fracking can harm sea creatures and birds, that it can emit air pollutants that cause cancer, and that it can increase the risk of oil spills from older wells.
“Enhanced well life and increased production thus come with a potential environmental price,” said Gould, a judicial moderate who was joined by two of the court’s more conservative judges, J. Clifford Wallace and Carlos Bea.
Quoting members of Congress who filed arguments in the case, the court said there are at least 25 endangered species in the Channel Islands Marine Sanctuary and many more that visit the nearby Santa Barbara Channel, which could be impacted by fracking discharges. Also nearby, the court said, are “the submerged remains of the Chumash people,” a Native American tribe that has lived in the region for thousands of years, remains present and is represented in the case by the nonprofit Wishtoyo Foundation.
Gould said the federal agencies lacked data on the possible toxic effects of 31 out of 48 substances that can be discharged by fracking. He said the agencies defended their actions with unconvincing “rationalizations,” such as a claim that any hazardous substances would be diluted by ocean waters.
“Offshore drilling ... pollutes our waterways, damages our environment, and exacerbates climate change.” Rob Bonta, California attorney general