Ctr. for Biological Diversity v. Cal. Dep't of Conservation

36 Cal.App.5th 210

248 Cal.Rptr.3d 449

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff and Appellant,

v.CALIFORNIA DEPARTMENT OF CONSERVATION, DIVISION OF OIL, GAS AND GEOTHERMAL RESOURCES et al., Defendants and Respondents.

C083913

Court of Appeal, Third District, California.

Filed May 16, 2019

Center for Biological Diversity, Clare Lakewood, Maya Golden-Krasner, Kassia Siegel, Joshua Tree; Stanford Law School and Deborah A. Sivas for Appellant.

Xavier Becerra, Attorney General, John A. Saurenman, Assistant Attorney General, Mitchell E. Rishe and Andrew M. Vogel, Deputy Attorneys General, for Respondent California Department of Conservation, Division of Oil, Gas, and Geothermal Resources.

Pillsbury WinthropShaw Pittman, Margaret Rosegay, Norman F. Carlin and Blaine I. Green, San Francisco, for Respondent Western States Petroleum Association.

RENNER, J.

The Center for Biological Diversity appeals from a judgment denying its petition for a writ of mandate challenging an environmental impact report (EIR) prepared by the California Department of Conservation, Division of Oil, Gas and Geothermal Resources (Department) pursuant to a law known as Senate Bill No. 4. (Stats. 2013, ch. 313, § 2, enacting Sen. Bill No.4; hereafter, Senate Bill No. 4.) Senate Bill No. 4 added sections 3150 through 3161 to the Public Resources Code to address the need for additional information about the environmental effects of well stimulation treatments such as hydraulic fracturing and acid well stimulation. (Stats. 2013, ch. 313, §§ 1 & 2; see Sen. Floor Analysis of Sen. Bill No. 4, dated Sept. 12, 2013; Assem. Floor Analysis of Sen. Bill No. 4, dated Sept. 9, 2013.)¹ As relevant here, Senate Bill No. 4 required the Department to prepare an EIR "pursuant to the California Environmental Quality Act ( [Public Resources Code] Division 13 (commencing with Section 21000) [CEQA] ), to provide the public with detailed information regarding any potential environmental impacts of well stimulation in the state." ( § 3161, subd. (b)(3)(A).)

The Department prepared and certified an EIR.² The Center filed a petition for writ of mandate and complaint for declaratory and injunctive relief, challenging the EIR under CEQA and Senate Bill No. 4. The trial court sustained a demurrer to the Center's cause of action for violations of CEQA, and subsequently denied the petition for a writ of mandate. We affirm.

I. BACKGROUND

Well stimulation treatments, such as hydraulic fracturing, are techniques used to enhance oil and gas production by increasing the permeability of the underground geological formation. (§§ 3152, 3157.) Hydraulic fracturing—or "fracking"—involves the pressurized injection of fluids into the formation to create fissures that allow oil and gas to escape for collection in a well. (§ 3152.) Hydraulic fracturing has been legally performed in California for decades. (§§ 3106, subd. (b), 3160, subd. (b).) However, the practice has not, until recently, been the subject of systematic study. (Stats. 2013, ch. 313, § 1.) As a result, little was known about the environmental consequences of well stimulation treatments. (Ibid. ) The Legislature passed Senate Bill No. 4 in an attempt to remedy this problem. (Ibid. )

A. Senate Bill No. 4

In passing Senate Bill No. 4, the Legislature found that hydraulic fracturing and other well stimulation treatments "are spurring oil and gas extraction and exploration in California." (Stats. 2013, ch. 313, § 1(a).) The Legislature also determined that, "[i]nsufficient information is available to fully assess the science of the practice of hydraulic fracturing and other well stimulation treatment technologies in California, including environmental, occupational, and public health hazards and risks." (Stats. 2013, ch. 313, § 1(b).) Accordingly, the Legislature declared that, "[p]roviding transparency and accountability to the public regarding well stimulation treatments, including, but not limited to, hydraulic fracturing, associated emissions to the environment, and the handling, processing, and disposal of well stimulation and related wastes, including from hydraulic fracturing, is of paramount concern." (Stats. 2013, ch. 313, § 1(c).)

Senate Bill No. 4 addressed these concerns by adding a number of new statutory provisions, including sections 3150 to 3161.³ These provisions changed the regulatory environment for hydraulic fracturing and other well stimulation treatments in several ways. First, the Legislature defined the relevant industry terms. ( §§ 3150 - 3159.) Of particular significance here, the Legislature defined the term "well stimulation treatment" as follows: "(a) For purposes of this article, ‘well stimulation treatment’ means any treatment of a well designed to enhance oil and gas production or recovery by increasing the permeability of the formation. Well stimulation treatments include, but are not limited to, hydraulic fracturing treatments and acid well stimulation treatments. [¶] (b) Well stimulation treatments do not include steam flooding, water flooding, or cyclic steaming and do not include routine well cleanout work, routine well maintenance, routine removal of formation damage due to drilling, bottom hole pressure surveys, or routine activities that do not affect the integrity of the well or the formation." (§ 3157.) The Legislature defined "hydraulic fracturing" to mean "a well stimulation treatment that, in whole or in part, includes the pressurized injection of hydraulic fracturing fluid or fluids into an underground geologic formation in order to fracture or with the intent to fracture the formation, thereby causing or enhancing, for the purposes of this division, the production of oil or gas from a well." (§ 3152.) The Legislature defined "acid well stimulation treatment" to mean "a well stimulation treatment that uses, in whole or in part, the application of one or more acids to the well or underground geologic formation. The acid well stimulation treatment may be at any applied pressure and may be used in combination with hydraulic fracturing treatments or other well stimulation treatments." (§ 3158.)

Second, the Legislature required the California Natural Resources Agency to "cause to be conducted, and completed, an independent scientific study on well stimulation treatments, including, but not limited to, hydraulic fracturing and acid well stimulation treatments." (§ 3160, subd. (a).) The Legislature specified that the study was to "evaluate the hazards and risks and potential hazards and risks that well stimulation treatments pose to natural resources and public, occupational, and environmental health and safety." (Ibid. ) The Legislature also specified that the study was to have been completed, "[o]n or before January 1, 2015." (Ibid. )

Third, the Legislature directed the Department to adopt permanent regulations specific to well stimulation treatments by January 1, 2015, which would become effective on July 1, 2015. (§ 3160, subd. (b)(1)(A).)⁴ The permanent regulations would include, "rules and regulations governing construction of wells and well casings to ensure integrity of wells, well casings, and the geologic and hydrologic isolation of the oil and gas formation during and following well stimulation treatments, and full disclosure of the composition and disposition of well stimulation fluids, including, but not limited to, hydraulic fracturing fluids, acid well stimulation fluids, and flowback fluids." (Ibid. )

Fourth, the Legislature established new permit requirements—separate from the permits needed to drill or redrill wells—for conducting well stimulation treatments on oil and gas wells. ( Association of Irritated Residents v. Department of Conservation (2017) 11 Cal.App.5th 1202, 1211, 218 Cal.Rptr.3d 517.) Under Senate Bill No. 4, oil and gas operators must apply for a permit from the Department prior to performing well stimulation treatments on oil and gas wells. (§ 3160, subd. (d)(1); see also § 3160, subd. (d)(3)(B) [well stimulation treatments "shall not be performed on any well without a valid permit"].) Applications for well stimulation permits must include well identification numbers and locations, the time period in which well stimulation treatments are expected to occur, water management plans, complete lists of the chemicals and estimated concentrations of the chemical constituents of the well stimulation fluids anticipated to be used, groundwater monitoring plans, estimates of the waste materials expected to be generated, and plans for disposing of such materials. (§ 3160, subd. (d)(1)(A)-(G).)

Senate Bill No. 4 requires that the Department, in considering permit applications, "evaluate the quantifiable risk of the well stimulation treatment." (§ 3160, subd. (d)(3)(C).) If granted, the well stimulation permit is valid for one year. (§ 3160, subd. (d)(4).)

Fifth, the Legislature established an interim statutory regime for well stimulation treatments for the eighteen month period beginning January 1, 2014 (the effective date of Senate Bill No. 4), and ending July 1, 2015 (when the permanent regulations would take effect). ( § 3161.) To this end, Senate Bill No. 4 specifies that the Department "shall allow" well stimulation activities to continue, provided that certain conditions are met. ( § 3161, subd. (b) ; see also Association of Irritated Residents v. Department of Conservation, supra , 11 Cal.App.5th at p. 1213, 218 Cal.Rptr.3d 517 [" ‘As directed in Public Resources Code section 3161, [the Department] must allow, and will allow, well stimulation to proceed if the operator has provided all of the required information and certifications’ "].) As relevant here, Senate Bill No. 4 contemplates that the Department will commence "the preparation of an environmental impact report (EIR) pursuant to [CEQA], to provide the public with detailed information regarding any potential environmental impacts of well stimulation in the state." ( § 3161, subd. (b)(3)(A).) As we shall discuss,...