Senate Bill 4, which imposes new regulation of fracking in the state of California, has come under fire from environmental groups and other opponents of the increasingly common practice of hydraulic fracturing of underground natural gas and oil deposits.
Most of the criticism centers on changes made to the bill in the last hours before its final approval by the Assembly this month, and its signing by Governor Jerry Brown on September 20. Those changes were worrisome enough to fracking critics that groups like the Natural Resources Defense Council and the California League of Conservation Voters actually pulled their support from the bill.
Meanwhile, the bill's author State Senator Fran Pavley (D- Agoura Hills) has characterized the criticism of her amended bill as lawyers coming up with "worst case scenarios." But what does the bill actually do?
1. SB 4 requires that the state's Department of Natural Resources conduct an independent, peer-reviewed scientific assessment of fracking. That assessment must be completed by January 1, 2015, and it must cover effects on groundwater, wildlife and native vegetation, public health, worker safety, and air quality, including greenhouse gas emissions.
The review will also, in the words of the bill:
Identify areas with existing and potential conventional and unconventional oil and gas reserves where well stimulation treatments are likely to spur or enable oil and gas exploration and production.
That requirement might well be a double-edged sword. On the one hand, it's good to identify places where fracking might be an issue so that locals can have more notice of potential drilling activity. On the other hand, energy companies may well be attracted to areas they hadn't considered if the state identifies them as likely spots for fracking.
Overall, though, the notion of a scientific assessment if hard to argue with, if it's performed by independent scientists.
2. SB 4 requires would-be frackers to apply for a permit with the state's Division of Oil, Gas and Geothermal Resources (DOGGR) beginning January 1, 2014. The permits would be valid for no longer than a year. Applicants would be required to provide information including the well identification number and location; the time period during which the fracking, acidizing or other chemicals would be used; a water management plan covering how much water will be used in the process, where it will come from, and where it will be disposed of; a list of chemicals used; a ground water monitoring plan; and estimates of solid wastes produced and a plan for their disposal.
The ingredients of chemical agents used in fracking are often claimed as protected trade secrets. DOGGR's database of fracking chemicals will not be readily available to the public for that reason. SB 4 prohibits certain basic information, such as the chemical composition of additives, air pollution information, and health and safety material, from being listed as a trade secret, though it does allow companies to protect the relative proportions of the ingredients in their well enhancers.
SB 4 requires that frackers "shall post or cause to have posted to an Internet Web site designated or maintained by the division and accessible to the public, all of the well stimulation fluid composition and disposition information." They'll need to post this data within 60 days of the end of a project. If companies demand that their recipes be kept as protected trade secrets, DOGGR will evaluate each demand for validity. If members of the public demand the release of that information, the companies will have 60 days to file a legal response to keep DOGGR from sharing the info with the public.
DOGGR is required to have its disclosure web site up and running by 2016, and in the meantime, drilling companies will be directed to use the controversial fracfocus.org, a deeply flawed public disclosure database that ReWire has previously criticized at some length.
3. SB 4 provides reassurance to the fossil fuel industry that fracking and related practices can continue in California while the state crafts its regulations. Opponents of fracking, acidizing, and other techniques used to enhance production of oil and natural gas from wells had been hoping that the state would enact a moratorium on the practice while the relevant state agencies get their act together to oversee the process. A previous version of SB 4 included a moratorium on new fracking until the completion of the scientific assessment mentioned above. But under pressure from the fossil fuel industry, that moratorium was dropped in June.
In its place, now, is language stating that DOGGR "shall allow" fracking and other well enhancement techniques before that scientific report comes out, as long as the drillers abide by a few rules, most of which are covered in the permitting procedure described above.
So it would seem the possibility of a moratorium on fracking until that scientific report is released has been consigned to the "what if" file. To be fair, the law in no way interferes with the authority of the Governor to enact a separate moratorium. Section 3160 of the law contains a provision that reads:
This article does not relieve the division or any other agency from complying with any other provision of existing laws, regulations, and orders.
Which means nothing in the new law prevents Governor Brown, state agencies, or the courts from banning fracking. The courts may well do so, but such a move from the Executive Branch seems unlikely.
4. SB 4 requires that fracking permits be provided to owners of any property within 500 yards of a well head 30 days before the operation begins. A project's neighbors can demand subsequent water sampling and testing by a third-party contractor designated by the appropriate regional water quality control board, and the driller has to pick up the tab. The well operator must give DOGGR 72 hours notice before embarking on the project so that agency staff can observe the process.
5. SB 4 formalizes what critics claim have been violations of environmental law by DOGGR. [Update: ReWire made an error in interpretation on this point, which we've clarified here. Short version: this point applies only to acidizing, and not fracking. More at that link.] The Center for Biological Diversity, Earthworks, Environmental Working Group, and Sierra Club recently sued DOGGR for allegedly failing to conduct proper environmental review of fracking projects under the California Environmental Quality Act (CEQA), which requires a thorough environmental assessment process of projects that might damage the environment and public health. Under SB 4, DOGGR would be able to set "threshold levels" of chemical use in fracking projects that would trigger CEQA review. If projects don't meet that threshold, projects can proceed without CEQA scrutiny.
DOGGR would be required to examine and consider revising those threshold levels before 2020. In the meantime, though, critics charge that having the division establish its own thresholds for triggering CEQA review essentially legitimizes what had been an arguably unlawful practice. The same agency that had been charged with lax oversight of fracking now gets to determine what constitutes lax oversight.
Much of what will come of SB 4 depends on the agency rulemaking process, which won't just involve DOGGR. The State Water Resources Control Board, for instance, will be charged with rulemaking on water quality issues and given oversight over groundwater monitoring in frack-heavy regions. The state's Department of Toxic Substances Control, the State Air Resources Board, local air quality districts, the Department of Resources Recycling and Recovery, and regional water quality control boards will all have formal say into how SB 4 translates into agency rules and regulations.
As will, no doubt, environmental groups and their attorneys. Senator Pavley's thoughts about her bill being interpreted by lawyers may prove to be literally true.
For the record: this post has been corrected with a clarification, as noted above. A previous version also stated that drillers must also provide permits to owners of property within 500 feet of the underground reservoir being tapped; this was an error that stemmed from our misinterpretation of the law. We regret the errors.
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