The Ninth Circuit Court of Appeals issued an opinion today ruling that the federal government violated environmental protection laws when it approved permits for fracking and acidizing (otherwise referred to as “well stimulation treatments,” or “WSTs”) from platforms offshore California. Today’s ruling protects the sensitive coastline and marine waters, local communities, and wildlife, including threatened and endangered species, from the risky practices of offshore fracking and acidizing. As the Court stated, the government had “disregarded necessary caution when dealing with the unknown effects of well stimulation treatments and the data gaps associated with a program of regular fracking offshore California.” The Court agreed with the Environmental Defense Center (“EDC”) and Santa Barbara Channelkeeper (“SBCK”) that the government failed to conduct a full environmental review, and should have prepared an Environmental Impact Statement (“EIS”) to address the impacts of fracking and acidizing on wildlife, the Santa Barbara Channel, and endangered and threatened species. The Court also agreed with the environmental groups that the U.S. Bureau of Ocean Energy Management (“BOEM”) and Bureau of Safety and Environmental Enforcement (“BSEE”) were required to consult with the U.S. Fish and Wildlife Service regarding potential impacts to threatened and endangered species. Finally, the Court held that the federal government must provide the California Coastal Commission with an opportunity to review fracking and acidizing before allowing such practices. Accordingly, the Court confirmed the injunction prohibiting the federal government from approving any plans or permits for the use of well stimulation treatments offshore California.
“This decision from the Ninth Circuit Court of Appeals will protect California by prohibiting the federal government from issuing permits for fracking and acidizing off our coast,” said Maggie Hall, Senior Attorney at EDC. “The Court agreed with the Environmental Defense Center and Santa Barbara Channelkeeper that offshore fracking threatens the ecologically rich Santa Barbara Channel. This ruling ensures protection of our waters for wildlife, recreation, and our tourist economy.”
“We are very pleased by this affirming decision,” said Benjamin Pitterle, Science and Policy Director for SBCK. “In this era of climate change, with ever-mounting threats to our oceans and wildlife, it is absolutely appropriate and essential that the federal government adequately evaluate oil development activities like these in order to safeguard our precious marine resources.”
EDC initially filed a lawsuit in 2014 to stop fracking and acidizing in the region after discovering, through a series of Freedom of Information Act requests, that more than fifty permits had been issued by the federal government without any public or environmental review. That case settled, with the federal government agreeing to conduct an environmental review. When the government failed to conduct full environmental review or consult with Fish and Wildlife Service, EDC and SBCK had no choice but to file this lawsuit in 2016. The lawsuit challenged the failure of the federal government to analyze and disclose the potential risks and impacts caused by fracking and acidizing from offshore oil platforms in southern California, including the Santa Barbara Channel. Fracking and acidizing are dangerous oil production processes involving the injection of large amounts of water and chemicals into the ground in order to fracture or dissolve rock. Fracking and acidizing fluids from the platforms are then discharged into the Santa Barbara Channel, an area that harbors such incredible biological diversity that it has been dubbed the “Galapagos of North America.”
The Court of Appeals agreed with EDC and SBCK that the federal government must prepare an EIS due to the potential impacts of fracking and acidizing on endangered and threatened species, the unique geographic area that would be affected (including the Channel Islands National Park, National Marine Sanctuary, and Chumash resources), and the need to further evaluate the risks associated with discharging toxic chemicals into the ocean. On this issue, the Court stated: “The importance of gathering more information about the toxicity of well stimulation treatment fluids is important here where the programmatic EA represents the first time the agencies have analyzed the environmental impacts of offshore well stimulation treatments.”
The Court of Appeals also upheld EDC’s and SBCK’s request that BOEM and BSEE must consult with the U.S. Fish and Wildlife Service before allowing offshore fracking. Such consultation is necessary to ensure protection of species threatened with extinction or endangerment, such as the southern sea otter, California least tern, and western snowy plover.
Finally, the Court ruled in favor of the State of California’s claim that fracking and acidizing cannot occur offshore California until the Coastal Commission has an opportunity to review the potential harm to our State’s coastal zone. The Commission’s review will require a full public hearing process.
The use of offshore fracking and acidizing in the Santa Barbara Channel poses significant risks to the sensitive marine environment.