Strict Hydraulic Fracturing Regulations for the Reality-Based Community

California Governor Jerry Brown, a leading advocate of renewable energy and environmental protection, recently signed SB 4, which included the strictest regulations on hydraulic fracturing (“fracking”) in the United States. Most important, however, is what SB 4 intentionally didn’t include: a ban or moratorium on hydraulic fracturing, because it is a fundamentally safe technology.

SB 4 – sponsored by Sen. Fran Pavley (D-Agoura Hills), one of the most high-profile environmental advocates in Sacramento — was ultimately so broad in its reach, going far beyond issues related to fracking, that the oil and gas industry did not support the legislation. The industry has, however, been supportive of the state’s ongoing regulatory process, and it did support many elements of SB 4, particularly those that satisfy the public’s desire for more information about the process. Those include advance notice, mandatory disclosure of the constituents of fracturing fluid, and ongoing monitoring, among many others.

Editorial boards across the state supported SB 4, emphasizing that it provides strong environmental protection while encouraging economic growth.  As the Santa Rosa Press Democrat put it, “Pavely’s bill offers California an opportunity to find an appropriate balance between environmental protection and resource development. That’s a compromise worth working for.” The Santa Cruz Sentinel said, “Environmentalists should be glad SB 4 creates the toughest fracking laws in the nation — and knock off the divisive calls for the governor to veto it.” And the Modesto Bee explained that banning “fracking” would only force us to be more reliant on imported energy.

The hope is that, in implementing the law, the state will not impose excessively onerous burdens on industry that will prevent development of California’s significant oil reserves. As Catherine Reheis-Boyd, President of the Western States Petroleum Association explained,

“For oil and natural gas producers, there is a lot not to like in SB 4.  Energy production in California, already heavily regulated, will require more permits, more monitoring, more water testing, more disclosure and more notification of activities.

“But SB 4 is a framework for a future that includes prudent and thoroughly regulated development of California’s energy resources.  And that is a future that continues to utilize technologies like hydraulic fracturing and acid stimulation that have proved to be safe and effective at bringing resources like the Monterey Shale to market.”

In short, this is not an ideal new reality, but, if approached thoughtfully, it can allow California to remain one of the nation’s leading energy producing states, even as our regulatory environment becomes more stringent. This balance between economic growth and environmental stewardship has been a hallmark of California’s approach to policy throughout most of its history, and there is good reason to believe it will continue.

It should come as no surprise that these sweeping, toughest-in-the-nation rules — the result of months of discussion between some of the state’s leading environmentalists and scientists – have been attacked by the extremist anti-industry groups as somehow “too weak.” It’s worth remembering that these groups exist to frustrate the efforts of regulators and policymakers to enact regulation of natural resource development. They also rely on keeping people frightened of imagined environmental harms.

Environmental non-governmental organizations (ENGOs) like The Center for Biological Diversity, Food and Water Watch, The Sierra Club (sadly), and the Natural Resources Defense Council have staked-out positions on hydraulic fracturing so far outside the scientific consensus that any regulation short of an outright ban on the technology is something they are unable to support.

After the passage of SB 4, when our overwhelmingly (super majority) Democratic legislature and Democratic Governor sought to put an end to the idea of a ban or moratorium in the state, the Sierra Club’s Michael Brune and Kathryn Phillips penned an op ed full of tired talking points that have been thoroughly debunked, arguing, “That’s why it’s time for the Legislature and the governor to place a moratorium on fracking.”

Adam Scow of Food and Water Watch – the same group that recently released a report that blames fracking for everything from venereal disease to the abuse of women – proclaimed “it’s time for Governor Brown to act now to ban fracking in California.”

Kassie Siegel of the Center for Biological Diversity put it this way: “We won’t stop until we’ve halted fracking for good in California.”

But with the passage of SB 4, California has — through thoughtful dialogue, compromise, and public debate — explicitly rejected a ban or moratorium on fracking.

No matter. Anti-energy groups simply tell their members that they will continue agitating for a ban, this time at the local level in cities and counties, even while knowing that “local ban” efforts are doomed to fail for two reasons.

First, as noted above, California policymakers have made it clear that hydraulic fracturing should be regulated and allowed; it’s not a dangerous practice that should be banned.  Not only SB 4, but upcoming regulation from DOGGR — which, based on drafts already released, will make our “strictest in the nation” regulatory framework even stricter — make this clear. A dozen bills were introduced last session that would have imposed significant restrictions on California’s energy industry, many of which included immediate bans or a moratorium on fracking. All of these measures went down to defeat. The most popular “moratorium” bill  — endorsed by the Los Angeles Times — only got 24 votes in the (again, overwhelmingly Democratic) 80-member State Assembly. The message from scientists, policymakers and regulators in California to anti-industry activists is simple: there is no scientific basis, or political will, for a moratorium on hydraulic fracturing in our state.

Second, localities in California have no jurisdiction to regulate the practices of the oil and gas industry, according to the conclusion of the Attorney General, which has stood for nearly 40 years. This makes sense, because state regulators are scientists and engineers with expertise and knowledge of the industry and how best to regulate it. Localities do not have that expertise, nor do they have the human resources. The alternative is to force local taxpayers to fund costly legal battles with the state and then burden taxpayers further by employing their own local regulators. The ENGOs who happily draft local ordinances that invite legal battles skip town when the time comes to actually defend the ordinances, meaning that their strategy is to force taxpayers to pay for their public advocacy and, by extension, their fundraising efforts.

With environmentally conscious California passing a tough new law on hydraulic fracturing, and with numerous Obama Administration officials including former Department of Interior chief Ken Salazar, former Energy Secretary Steven Chu, Energy Secretary Ernest Moniz, Interior Secretary Sally Jewell, and EPA Administrator Gina McCarthy continuing to voice support for responsible development, the anti-scientific positions of activist groups like those discussed above are becoming even further marginalized.

Environmental protections and economic growth can continue to coexist in California under SB4 – if it is implemented sensibly. Californians need to be aware that any further agitation by extreme activist groups for curtailing hydraulic fracturing through local “bans” is not rooted in reality, and is merely a ploy to obstruct responsible energy development and to raise their own funds. More importantly, Californians should remember why these groups are now focusing on local initiatives: they’ve lost the debate on the merits, and they are simply getting desperate.

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