SB 4 Will Help Regulate Fracking in California -- It's About Time

The crazy-hectic close of the California legislative session is a make-or-break moment for those hoping to bring long-overdue regulatory control of fracking in the Golden State.

At issue is whether the legislature will pass SB 4. It is the sole surviving bill this session that seeks to compel Big Energy and state regulators to open up to public scrutiny and scientific analysis the impact that hydraulic fracking (and its technological cousin, acid well treatment) has on public health and the environment.

Because there has been relatively little discussion of this initiative in the mainstream press and thus in the civic arena -- even Governor Brown seems to be snoozing on the question of fracking -- it is important to spell out three of its key provisions, (as amended, September 3):

• "The bill would require the Secretary of the Natural Resources Agency, on or before January 1, 2015, to cause to be conducted an independent scientific study on well stimulation treatments, including acid well stimulation and hydraulic fracturing treatments."
• "The bill would require an operator of a well to record and include all data on well stimulation treatments, as specified."
• "The bill would require the [Division of Oil, Gas, and Geothermal
  Resources in the Department of Conservation], in consultation with the Department of Toxic Substances Control, the State Air Resources Board, the State Water Resources Control Board, the Department of Resources Recycling and Recovery, and any local air districts and regional water quality control boards in areas where well stimulation treatments may occur, on or before January 1, 2015, to adopt rules and regulations specific to well stimulation, including governing the construction of wells and well casings and full disclosure of the composition and disposition of well stimulation fluids."

Because the corporations using hydraulic fracturing as a tool to release millions of barrels of oil and gas from tight geologic formations like the Monterey Shale refuse to identify the composition of the fluids injected at high pressure and immense volume to fracture the rock miles below the surface, SB 4 would require the state's Natural Resource Agency to mount an "independent" study of this controversial technique and its ramifications. The critical term, here, is independent. Given the hand-in-glove relationship between the regulators and the regulated, establishing an outside group to analyze what is occurring is essential to assure the public of the legitimacy of this vital research and analysis.
To conduct this scientific examination requires data, so note that the second bullet-point forces operators employing fracking or acid well stimulation techniques to "record" and convey all such data as part of the operators' permit application, an application that must be rejected if, as a later provision indicates, the technique to be employed is found to produce "an unreasonable risk." If SB 4 passes, the energy industry will no longer get a free pass.

SB 4 also will not allow the state itself to remain conveniently ignorant of what is happening on its land and water. As asserted in bullet-point three, the legislation demands that all the relevant regulatory entities in Sacramento, as well as those on the local and regional level, develop suitable rules and regulations to manage fracking within their jurisdictions. The most significant aspect of this particular provision lies in its last eleven words that require the "full disclosure of the composition and disposition of well stimulation fluids."

If SB 4 becomes law, the sources of fracking's deleterious impact on ground and surface waters, on air quality, and on our health will finally become more clear.

This exposure cannot come too soon. Energy companies are already testing fracking in the Monterey Shale formation, posing new challenges to a region already suffering from contaminated water supplies as a result of industrial agriculture. In Los Angeles, wells in the Inglewood field are being brought back into production through this technology, but at what cost to nearby residents no one can say (an uncertainty that led Los Angeles City Council Representatives Mike Bonin and Paul Koretz to call for a ban on fracking within city limits).

Add to these terrestrial sites, the shocking news that for the past fifteen years oil companies have been fracking offshore of Santa Barbara, and dumping their wastes directly into the channel -- without any oversight. This caught the California Coastal Commission off-guard, for although its authority does not extend to federally owned waters where apparently this drilling has been occurring, it is responsible for anything that diminishes environmental health and public wellbeing closer to shore. It cannot protect the state's invaluable coastal resources if it does not have access to the precise contents of the fracking fluids and waste-disposal practices.

SB 4 will not resolve all these concerns. Moreover, as currently written, its reach will be limited. An earlier iteration required a statewide moratorium on fracking, but the oil lobby gutted that provision, a sure sign that such a moratorium remains a good idea; such a pause would have given legislators and citizens an opportunity to develop a more robust set of regulatory controls.

That said, the legislation's sponsor, Senator Pavley (D-Agoura Hills), who has shepherded SB 4 through one hearing after another, gets high marks for persistence. And for recognizing that in this legislative session we are playing for very high stakes, a point U.S. Senator Dianne Feinstein underscored when she backed SB 4:

SB 4 calls the question. It is time for the legislature, and governor, to answer the call.