A fracking facility. Photo by Shane Davis, Rocky Mountain Chapter, Sierra Club.

On May 16 the Department of Interior’s Bureau of Land Management (BLM) announced its latest fracking rules for shale drilling on federal lands, which were last revised in 1988. These draft rules completely fail to honor President Obama’s 2013 State of the Union address, where he pledged to do more to combat climate change for the sake of our children and our future.

In response, Michael Brune, executive director of the Sierra Club, issued the following statement.

“The Sierra Club is alarmed and disappointed by the fundamental inadequacy of the Bureau of Land Management’s new proposed fracking regulations. After reviewing the draft rules, we believe the administration is putting the American public’s health and well-being at risk, while continuing to give polluters a free ride. The draft BLM rules ignore the recommendations of the president’s own shale-gas advisory committee, which called for transparency, full public chemical disclosure, environmental safeguards, and pollution monitoring.

“Although no amount of regulation will make fracking acceptable, the proposed BLM rules fail even to take obvious steps to make it safer. This proposal does not require drillers to disclose all chemicals being used for fracking and continues to allow trade-secret exemptions for the oil-and-gas industry. There are no requirement for baseline water testing and no setback requirements to govern how close to homes and schools drilling can happen. The new rules also continue to allow the use of toxic diesel fuel for fracking, as well as open pits for storing wastewater — two practices that we know to be environmentally hazardous.

“If President Obama honestly wants to tackle climate change, then he must look for every opportunity to keep dirty fossil fuels in the ground and to double down on clean-energy solutions like wind, solar, and energy efficiency. The last thing we should be doing is opening up still more public land to drilling and fracking.”

A fracking facility. Photo by Shane Davis, Rocky Mountain Chapter, Sierra Club.

On April 9 a federal judge ruled that the Obama administration violated the law when it issued oil leases in Monterey County CA without considering the environmental impacts of hydraulic fracturing, also known as fracking. The ruling came in response to a suit brought by the Center for Biological Diversity and the Sierra Club, challenging a September 2011 decision by the federal Bureau of Land Management (BLM) to auction off about 2,500 acres of land in southern Monterey County to oil companies.

“This important decision recognizes that fracking poses new, unique risks to California’s air, water, and wildlife that government agencies can’t ignore,” said Brendan Cummings, senior counsel at the Center, who argued the case for the plaintiffs. “This is a watershed moment — the first court opinion to find a federal lease sale invalid for failing to address the monumental dangers of fracking.”

Fracking employs huge volumes of water mixed with sand and toxic chemicals to blast open rock formations and extract oil and gas. The controversial technique is already being used in hundreds — perhaps thousands — of California oil and gas wells. Oil companies are aggressively trying to frack the Monterey Shale, which stretches from the northern San Joaquin Valley into Los Angeles County, and west to the coast. Extracting this oil will certainly require more fracking in California.

“Fracking for oil and gas is inherently a dirty and dangerous process that decimates entire landscapes,” said Michael Brune, executor director of the Sierra Club. “We know without a doubt that fracking will lead to increased use of fossil fuels at a time when we should be doing everything we can to keep dirty fuels in the ground and doubling down on clean energy.”

Hydraulic fracturing, whether for oil or natural gas, has been tied to water and air pollution in other states, and releases huge quantities of methane, a dangerously potent greenhouse gas. Increased fracking threatens to unlock vast reserves of previously inaccessible fossil-fuel deposits that would contribute to global warming and bring us closer to climate disaster.

Fracking also routinely employs numerous toxic chemicals, including methanol, benzene, and trimenthylbenzene. A recent study from the Colorado School of Public Health found that fracking contributes to serious neurological and respiratory problems in people living near fracked wells, and puts them at higher risk of cancer.

“In an era of dangerous climate change, the Obama administration should not sell off our public lands to be fracked for fossil-fuel development that will only speed up global warming,” added Cummings. “We hope this court ruling acts as a wake-up call that steers the federal government away from sacrificing California’s public lands for dangerous oil development.”

The court has asked for a joint recommendation on next steps in the case. The Center and the Sierra Club believe the lease sale should be set aside. At a minimum, no drilling or fracking on the leases will be allowed before a thorough analysis of the environmental risks has been completed.

Legal details

Federal Magistrate Judge Paul Grewal granted our motion for summary judgment on the primary issue, which was that BLM failed to consider the effects of fracking. In short, fracking both makes oil and gas production more likely, and it increases the risk of oil and gas production that does occur. On the first issue, BLM’s entire National Environmental Protection Act (NEPA) analysis was predicated on a 2006 “reasonably foreseeable development” forecast for the region; based on this forecast, BLM concluded that at most one exploratory well but no production wells were likely be drilled on the leased acreage. We successfully argued that BLM needed to consider whether the advent of fracking and unconventional production made continued reliance on this scenario arbitrary and capricious: now that industry knows how to get oil out of previously inaccessible rock, industry is likely to drill more if given the chance. On the second issue, BLM failed to consider the risks attributable to fracking itself, including risks of contamination of the San Antonio and Nacimiento Reservoirs.

The judge did rule against us on two relatively minor issues. First, the judge found that our challenge to the two leases in Fresno County, comprising 240 acres, effectively was not yet ripe. The judge agreed that in general, NEPA analysis must be performed when leases are sold, rejecting BLM’s argument that NEPA can be postponed until the “application for permit to drill” (APD) stage. But in an exception to this general rule, the judge held that where leases contain a “no surface occupancy” provision, as did the Fresno (but not Monterey) leases, wherein BLM retains authority to prevent all surface disturbance despite the lease sale, BLM can postpone NEPA until the APD stage. The court concluded that because BLM wasn’t required to do a NEPA analysis for these leases yet, the court need not address arguments about why the analysis BLM did do was inadequate. This is largely a temporary setback, because no activity on these leases can take place until BLM does do the proper NEPA analysis for them (likely when lessees submit applications for permits to drill), and we’ll have the opportunity to challenge that analysis at that time.

The judge also rejected our claim under the Mineral Leasing Act (MLA). The MLA requires BLM to include lease provisions prohibiting “waste” of oil and gas resources. We argued that BLM was required to include lease provisions specifying particular techniques and technologies that would reduce waste, but the court sided with BLM in holding that a general term requiring lessees to prohibit waste satisfied the MLA. Of course, the underlying duty to prevent waste remains.

Moving forward, Sierra Club and Center for Biological Diversity have filed administrative protests of two additional BLM lease sales in the same region, raising the same issues on which we prevailed here. BLM recently denied our protest regarding the December 2012 lease sale, and we now have the option of challenging this decision in federal court. We have also protested BLM’s proposed May 2013 lease sale.

Many thanks to Center for Biological Diversity for doing the lion’s share of the work in litigating this case, and to our chapter members who provided standing declarations and other support for this suit.

“Legal details” by Nathan Matthews, associate attorney, Sierra Club Environmental Law Program