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The following articles were printed from New Times [newtimesslo.com] - Volume 27, Issue 40
Down the tubeLocal water activists tinker with an anti-fracking ordinance imported from Pennsylvania
BY PATRICK M. KLEMZ
The Monterey Shale deposit below our feet contains an oil reserve worth untold trillions of dollars. Yet imagining the Monterey Shale as a single underground reservoir of oil misses the mark as badly as visualizing an aquifer as a subterranean lagoon canopied by limestone. Oil deposits certainly exist, but in pockets of varying size separated by walls of rock and mixed with other minerals.
The Monterey Shale remains unexplored to this day because the extraction of shale oil proved uneconomic until recently. When technological advances in a decades-old exploration technique collided with rising oil prices, the development floodgates on the Central Coast threatened to open. Now those who believe the oil companies’ key to the Monterey Shale poses a threat to Central Coast water want to pass ordinances to locally outlaw the controversial practice known as fracking.
“All I want is to stop it before they get the drills in there, because you can’t un-poison a well,” local community organizer Jeanne Blackwell told New Times.
Fracking—or, more properly, hydraulic fracturing—involves the high-pressure pumping of chemically treated water and sand into deep oil and gas wells. The process allows for the removal of segregated mineral deposits by pounding the entire area at the bottom of the well into chemical slurry that the operator can then extract and separate into oil, rock tailings, and wastewater.
Working out of a conference room at the Rabobank branch on Broad Street in San Luis Obispo, members of SLO Clean Water Action developed an ordinance to put on the November ballot in the city. The ordinance would make any fracking operation that impairs the quality of water a violation of the community’s collective health and property rights. If successful here, the group plans to propose a variation of the same ordinance in the county’s other six cities and, eventually, to the county Board of Supervisors.
Industry groups say California regulations protect public water supplies by requiring oil operators to treat wastewater before discharging it. Tupper Hull of the Western States Petroleum Association argued that any regulation of fracking should take place at the state level.
“We don’t share the view that hydraulic fracturing is an unregulated activity,” Hull said. “[These efforts] are part of a strategy to create obstacles by spreading flamboyantly inaccurate information.”
Although concerns over fracking’s effect on water quality surfaced years ago, the strategy proposed in SLO is relatively new. Supporters claim community rights ordinances give municipalities the power to prevent upstream land uses that degrade health and property values downstream. Public nuisance and chemical trespass laws theoretically provide the legal basis for enforcement outside of the city limits.
The SLO draft ordinance received the legal sponsorship of the Community Environmental Legal Defense Fund, a public interest law firm based out of Pennsylvania. The Pittsburgh City Council first adopted a community rights fracking ban in 2010 after the Pennsylvania Legislature took away the cities’ powers to zone out oil exploration. Several dozen cities have since followed suit.
Proponents say the point of a community rights ordinance is to rise above the type of detail-oriented analysis that makes oil and gas regulation a matter for the state and federal governments. However, the concept of a city exercising authority over external oil and gas operations remains largely untested.
“It’s a novel concept of the role of municipal government,” Hull quipped.
The strategy draws critics from outside industry circles as well. Opponents of the community rights approach worry that stepping into the fracking fray will subject cities, instead of the states, to litigation by deep-pocketed exploration companies.
Former Pittsburgh council president Doug Shields believes that danger is inflated. While visiting SLO during an anti-fracking California tour on April 16, he said the industry defeated numerous efforts to prevent fracking through zoning in Pennsylvania. He added, however, that advocates have yet to see a challenge of a community rights fracking ordinance by oil operators.
“They said it would be challenged in Pittsburgh,” Shields said. “Nobody has challenged it.”
In addition to providing the legal grounds for SLO to challenge external fracking, the ordinance would also outlaw the practice within they city. Yet, ordinance supporters admit that the threat of urban fracking on the Central Coast seems remote. SLO Clean Water Action’s inverted strategy has prompted some Huasna Valley residents—where controversial oil development has been proposed—to ask, “Why not start with the county?”
Shannon Biggs, a San Francisco-based community organizer working with SLO Clean Water Action, responded that the strategy aims to establish a base of strength within the county’s more progressive population centers before moving outward.
“These ordinances challenge all sorts of precedent,” Biggs explained. “We want to pass it where we know we can.”
That approach has succeeded so far in Pennsylvania, where the situation isn’t exactly the same. Fracking often occurs within developed areas above Pennsylvania’s Marcellus Shale field, whereas Monterey Shale fracking takes place almost exclusively in remote and unincorporated areas. Perhaps as important, Pennsylvania lawmakers stepped in to stop local cities and counties from zoning out oil and gas development, whereas Sacramento lawmakers haven’t.
SLO Clean Water Action says the point of proposing local ordinances is to take action while state legislators deliberate. For one thing, state-level fracking reform efforts may not actually prevent any fracking. Increasing public disclosure of proposed operations has been the focus of recent legislative bills and hearings. California regulations don’t require operators to publicly disclose the chemicals used in fracking. Several bills currently proposed in the state Senate would establish a statewide permitting process that puts all the information in public view.
From an enforcement perspective, both California and its local governments share the problem of how to stop fracking on federal lands. On April 8, the Center for Biological Diversity and Sierra Club defeated a plan by the Interior Department to lease new wells for fracking in southern Monterey County. Federal leaseholds like the ones in that case occupy land at the top of the Central Coast watersheds. The Interior Department manages the mineral deposits beneath the Los Padres National Forest, where much of SLO County’s fresh water originates.
For local governments hoping to enforce a community rights ordinance, one could hardly imagine a tougher litigation opponent than the federal government. Shields acknowledged the difficulty in enforcing a local ordinance when a higher level of government approved the oil exploration plans.
“There are no guarantees here. I can’t tell you that everything is going to be fine if you do this,” Shields said. “But my experience is simply this: Once you put your foot down, they start to back up.” ∆
Staff Writer Patrick M. Klemz can be reached at firstname.lastname@example.org.
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