The Bureau of Land Management (BLM) on Wednesday explained in a notice to the Federal Register that it will explore the impact of fracking in the state, setting off alarm bells among environmentalists.

“[T]his document announces the beginning of the scoping process and seeks public input on issues and planning criteria related to hydraulic fracturing,” the notice reads.

Specifically, BLM will prepare a supplemental Environmental Impact Statement (EIS) to determine what environmental impacts the technology will have on the region.

The land in question includes “approximately 400,000 acres of public land and an additional 1.2 million acres of Federal mineral estate,” according to the agency, and spans across multiple counties including Fresno, San Luis Obispo, Santa Barbara and Ventura.

Fracking is a technique by which water, sand and additives are injected deep into the ground at high pressures to crack open rocks and release the oil or gas trapped inside. It’s led to drilling booms in places like Texas, North Dakota and Pennsylvania.

Proponents argue that it’s a safe technology that is increasing America’s energy independence and creating jobs, while opponents say it poses environmental risks and recklessly promotes an energy policy centered around fossil fuels instead of alternative energy resources.

“This step toward opening our beautiful public lands to fracking and drilling is part of the Trump administration’s war on California,” said Clare Lakewood, a senior attorney at the Center for Biological Diversity. “We desperately need to keep these dirty fossil fuels in the ground. But Trump is hell-bent on sacrificing our health, wildlife and climate to profit big polluters.”

The administration has already faced backlash over similar moves. This spring, for example, Interior Secretary Ryan Zinke postponed a sale for leasing public lands for drilling near Livingston, Montana, following heavy outrage due to its proximity to Yellowstone National Park.

“I’ve always said there are places where it is appropriate to develop and where it’s not. This area certainly deserves more study, and appropriately we have decided to defer the sale,” Zinke responded in a March statement.

More broadly, the development is just the latest high-profile fight between California and the Trump administration, as the state has challenged the president’s agenda on nearly every hot button issue, including immigration, climate change and health care. 

And just last week, President Trump issued a series of tweets lambasting the state’s environmental regulations, claiming that the rules are hindering the ability to effectively fight wildfires, remarks that drew wide condemnation from state officials.

“Federal agencies will have to complete the review by the end of May and determine if a more in-depth analysis is necessary,” the paper added. “They will also have to make future permit applications publicly accessible.” If the practice clears federal scrutiny and is deemed adequately safe to the environment, fracking operations could continue. If not, they could be postponed or forestalled indefinitely.

Notching a victory

The result marked a significant win for the Center for Biological Diversity and the Environmental Defense Center, two organizations that alleged frackers had imperiled aquatic life with “over 9 billion gallons of wastewater” each year, according to Grist. Accusing the U.S. Department of the Interior of “rubber-stamping fracking off California’s coast without engaging the public or analyzing fracking’s threats to ocean ecosystems, coastal communities and marine life,” as the Christian Science Monitor observed, the groups filed suit against the federal government.

In a report on the deal, the left-leaning think tank Think Progress noted that fracking had quietly been conducted off the California coast for years. “The initial revelation of ongoing offshore fracking came as a result of Freedom of Information Act requests filed with the Department of the Interior by the Associated Press and Santa Barbara-based community organization the Environmental Defense Center, which just released a new report on the issue,” the organization recalled. “The investigations have found over 200 instances of fracking operations in state and federal waters off California, all unbeknownst to a state agency with jurisdiction over the offshore oil and gas industry.”

Industry pushback

For their part, defendants insisted the case was without merit. “Catherine Reheis-Boyd, president of the Western States Petroleum Association, said that the petroleum industry has operated safely in California for decades, working closely with regulators and other officials,” Natural Gas Intelligence reported. Industry defenders have argued that offshore fracking levels in the Pacific haven’t been that high. While the moratorium “will not likely affect production at large because California has not been producing much offshore oil lately,” Reuters noted, “companies have fracked at least 200 wells in Long Beach, Seal Beach, Huntington Beach and in the wildlife-rich Santa Barbara Channel,” according to the Center for Biological Diversity.

The American Petroleum Institute, which joined the suit as a defendant, has refused to agree to the settlement package. Other hurdles to its implementation have arisen. The two separate settlements must still be approved by a federal judge, according to NGI.

Porter Ranch debate

Although the EPA largely exonerated fracking of the dire accusations leveled against it by some environmental activists, the practice has re-entered the public debate in California due to the massive gas leak in the Porter Ranch neighborhood of greater Los Angeles. Maya Golden-Krasner, an attorney for the Center for Biological Diversity, recently linked the disaster to fracking in an editorial at the Sacramento Bee; “newly uncovered documents show that hydraulic fracturing was commonly used in the Aliso Canyon gas storage wells,” she wrote, “including a well less than a half-mile from the leak.” Perhaps predictably, Golden-Krasner called for Gov. Jerry Brown to ban the practice of fracking across the state of California.

Regulators have been investigating a possible connection. “More than two months after Southern California Gas Co. detected a leak at its Aliso Canyon field, observers are searching for reasons the well may have failed. Some environmentalists are drawing attention to fracking, while experts caution that such a rupture is unlikely,” the Los Angeles Daily News observed. “The leaking well’s maintenance records don’t indicate that it was fracked, according to a review of the file released by the state Division of Oil, Gas & Geothermal Resources.”

“Under pressure from environmental groups’ lawsuits, the U.S. Forest Service has begun a comprehensive environmental review of Switzerland-based bottled water giant Nestle’s Corp. continuing operations in a San Bernardino Mountain canyon,” the San Bernardino Sun reported. “Since its permit expired, in 1988, Nestle has been drawing what now amounts to millions of gallons of water from the rugged Strawberry Canyon in the San Bernardino Mountains, north of San Bernardino. Under Forest Service regulations, expired special use permits, like what Nestle has, remain in effect until they are either renewed or denied.”

According to the lawsuit filed against Nestle, that policy led to an explicit green light for its unique consumption arrangement. “The Forest Service has allowed pipeline operators to continue transporting water about four miles, from a series of bore holes and tunnels to a storage tank near California 18, without more stringent review required after the original permit was issued in 1976,” the Los Angeles Times observed at the time of the suit’s filing.

Sharp demands

That arrangement incurred the wrath of environmentalists. Even though Nestle’s renewal application is pending — meaning it’s legal for the company to continue its operations — its impact on the state’s ecology amid the current drought became the focus of a sweeping lawsuit, pressing the federal government to take action. “The Forest Service was sued in October by environmental and public interest groups who allege the Swiss-based company is operating its Strawberry Canyon pipeline on a permit that expired in 1988,” the Associated Press noted. “The groups, led by the Center for Biological Diversity, said the prolonged drought in California combined with the water operation is affecting wildlife.” According to the wire, the CBD and other groups “believe species, including Least Bell’s Vireo and California spotted owls, could see their numbers increased with improved water supply, the lawsuit said.”

The CBD counts The Story of Stuff Project and the Courage Campaign Institute among its fellow plaintiffs. Warning that Nestle has siphoned off “between 50m-150m gallons of water each year from a creek in the southern Californian forest to use in its Arrowhead bottled water brand,” the Guardian reported, those groups asked the Forest Service “to immediately turn off the water spigot and conduct a permit review, assessing the environmental impact of Nestlé’s operations.” Courage Campaign environmental director Eddie Kurtz called Nestle’s consumption of “public water” both illegal and immoral, according to the Guardian.

Managing protests

For its part, the Forest Service has sought to placate activist groups while initiating the review process. When pressed by CREDO, a self-styled progressive activist organization, the Forest Service responded that it had cautioned Nestle about the prospect of future restrictions on its water consumption. According to CREDO, the Forest Service indicated that, “should the drought continue, as we all expect it will, the state or local authorities may make further demands for conservation measures from all water users.”

Nestle had the local California media to blame for the initial scrutiny surrounding its arrangement with the Forest Service. “The legal action comes on the heels of an investigation this year by the Desert Sun,” as the Los Angeles Times noted. “Jody Noiron, supervisor for the San Bernardino National Forest, told the paper afterward that re-issuance of the permit would become a priority for the agency.”

After the Sun’s coverage, the story quickly gained steam across the state and the country. Protesters gathered to challenge Nestle face to face, while a nationwide movement to push bottling operations out of California succeeded in causing Starbucks to relocate its sourcing. “But others have continued to bottle water despite the drought. Wal-Mart, for example, still bottles water in California, as do companies at more than 100 other plants that are still licensed to bottle water in the state,” Business Insider noted at the time.

The Bay Area Air Quality Management District argued that it’s not enough for developers to detail the environmental impacts from their proposed projects. Instead, they must also detail how the existing environment would affect the residents, employees or customers of new housing, commercial-retail or mixed-use projects. That assertion outraged the California Building Industry Association, which said it placed huge new obstacles on projects in urban areas — especially “infill” projects championed by environmentalists as a way to increase housing density near mass transit options.

Builders got their way at the trial court level, but an appellate court sided with the Bay Area AQMD. This month, however, a unanimous state Supreme Court ruled that CEQA simply doesn’t mandate that sweeping a review.

“Given the sometimes costly nature of the analysis required under CEQA when an EIR is required, such an expansion would tend to complicate a variety of residential, commercial, and other projects beyond what a fair reading of the statute would support,” wrote Judge Mariano-Florentino Cuéllar. Instead, he wrote, CEQA deals with “the project’s impact on the environment – and not the environment’s impact on the project.”

Builders feared adverse ruling

The decision came as a huge relief to developers and business interests, many of whom expected an adverse decision in the wake of the California high court’s Nov. 30 ruling that rejected the 5,800-page environmental impact report for the Newhall master planned community in the Santa Clarita Valley. The project, first proposed in the 1980s, would create homes, retail-commercial zones and leisure-recreational facilities for 58,000 people.

Contrary to some reports, this wasn’t just a simple battle between environmentalists — in this case, the Center for Biological Diversity — and a developer — the Newhall Land & Farming Co.  The California Department of Fish and Wildlife was the first named party in the lawsuit because it had helped prepare an EIR that said the project had enough mitigation that it would have no net negative effect on the environment, specifically in the release of additional greenhouse gases. The state had been encouraged to take this position by Los Angeles County, which approved the Newhall project’s zoning in 2003.

Justice knocks ‘recipe for paralysis’

The Newhall decision was supported by five of the seven California justices. Interestingly, one of the two dissenters invoked not just his reading of CEQA but the larger issue of a lack of housing in California. This is from the Los Angeles Times:

Justice Ming W. Chin said the environmental impact report could be fairly easily revised but complained the litigation would delay the project by years at a time when the state faces a housing shortage.

 

“Delay the project long enough and it has to meet new targets, and then perhaps new targets after that,” Chin wrote. “All this is a recipe for paralysis.”

This acknowledgment of the effects of judicial decisions on the real world is relatively unusual. For example, in May, the Illinois Supreme Court threw out a state pension reform program that supporters said was crucial to keeping Illinois from becoming the first state to declare bankruptcy. This account is from The New York Times:

All seven members of the state’s highest court found that a pension overhaul lawmakers had agreed to almost a year and a half ago violated the Illinois Constitution. The changes would have curtailed future cost-of-living adjustments for workers, raised the age of retirement for some and put a cap on pensions for those with the highest salaries. But under the state Constitution, benefits promised as part of a pension system for public workers “shall not be diminished or impaired.”

“Crisis is not an excuse to abandon the rule of law,” Justice Lloyd A. Karmeier wrote in an opinion. “It is a summons to defend it.”

Whether or not the federal government might come to the rescue of Illinois if it went bankrupt has been the topic of intense speculation in that state’s media.