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Some good news on the environmental front, and it comes from a Federal District Court Judge in California.  It seems the Obama administration (specifically the Bureau of Land Management) approved the use of hydrofracking in the development of four oil and gas leases.  After that decision was challenged, a federal magistrate ruled that the government violated federal laws when failed to address the potential environmental impacts of hydrofracturing before it sold those leases in California.

U.S. Magistrate Judge Paul Grewal in San Jose, California, said the BLM violated the National Environmental Policy Act by relying on outdated reviews, conducted before the extraction process known as fracking spurred massive development of energy deposits, when the U.S. sold four leases in 2011 for 2,700 acres of federal land in Monterey and Fresno counties.

“BLM’s dismissal of any development scenario involving fracking as ‘outside of its jurisdiction’ simply did not provide the ‘hard look’ at the issue that NEPA requires,” Grewal said in a ruling yesterday.

NEPA is the federal law, passed during the Nixon administration, that requires all federal agencies to conduct an environmental assessment before taking any action that might effect the environment.

The NEPA process consists of an evaluation of the environmental effects of a federal undertaking including its alternatives. There are three levels of analysis: categorical exclusion determination; preparation of an environmental assessment/finding of no significant impact (EA/FONSI); and preparation of an environmental impact statement (EIS).
  • Categorical Exclusion: At the first level, an undertaking may be categorically excluded from a detailed environmental analysis if it meets certain criteria which a federal agency has previously determined as having no significant environmental impact. A number of agencies have developed lists of actions which are normally categorically excluded from environmental evaluation under their NEPA regulations.
  • EA/FONSI: At the second level of analysis, a federal agency prepares a written environmental assessment (EA) to determine whether or not a federal undertaking would significantly affect the environment. If the answer is no, the agency issues a finding of no significant impact (FONSI). The FONSI may address measures which an agency will take to mitigate potentially significant impacts.
  • EIS: If the EA determines that the environmental consequences of a proposed federal undertaking may be significant, an EIS is prepared. An EIS is a more detailed evaluation of the proposed action and alternatives. The public, other federal agencies and outside parties may provide input into the preparation of an EIS and then comment on the draft EIS when it is completed.

If a federal agency anticipates that an undertaking may significantly impact the environment, or if a project is environmentally controversial, a federal agency may choose to prepare an EIS without having to first prepare an EA.

After a final EIS is prepared and at the time of its decision, a federal agency will prepare a public record of its decision addressing how the findings of the EIS, including consideration of alternatives, were incorporated into the agency's decision-making process.

Judge Paul Grewal's decision that the BLM failed to address the environmental impacts of fracking is believed to be the first to "explicitly recognize the significant risks and controversies created by the spread of fracking across the U.S." according to  Brendan Cummings, attorney for the plaintiff in the case, the Center for Biological Diversity (CBD).

"It's the first federal court opinion we're aware of that explicitly holds that federal agencies have to analyze the environmental impacts of fracking when carrying out an oil and gas leasing program," Cummings told Reuters

The Judge did not cancel the leases, as the CBD had requested, but he made it clear that the BLM had not properly considered the potential risk of environmental damage that could be caused by the use of hydrofracking drilling technology in the Monterey Shale formation, a vast untapped reservoir of natural gas and oil that previously had been off limits to the fossil fuel extraction industry, a formation which that industry deeply covets as a future source of revenues.

Comprising two-thirds of the United States’s total estimated shale oil reserves and covering 1,750 square miles from Southern to Central California, the Monterey Shale could turn California into the nation’s top oil-producing state and yield the kind of riches that far smaller shale oil deposits have showered on North Dakota and Texas.

For decades, oilmen have been unable to extricate the Monterey Shale’s crude because of its complex geological formation, which makes extraction quite expensive. But as the oil industry’s technological advances succeed in unlocking oil from increasingly difficult locations, there is heady talk that California could be in store for a new oil boom.

Considering that fracking and other methods of deep drilling has been associated with seismic events in other parts of the country, it's understandable that environmental groups and concerned citizens might take a jaundiced view of such activity in California, a region known for numerous geologic faults and volatile seismic activity, not to mention the risk of air and groundwater contamination.

The Monterey Shale’s geological formation will require companies to engage in more intensive fracking and deeper, horizontal drilling, a dangerous prospect in a seismically active region like California, environmental groups say. [...]

“If and when the oil companies figure out how to exploit that shale oil, California could be transformed almost overnight,” said Kassie Siegel, a lawyer at the Center for Biological Diversity. “Fracking poisons the air we breathe and the water we drink. It is one of the most, if not the most, important environmental issue in California.”

Many industry analysts believe that to reclaim the oil in the Monterey shale will require drilling as far down as 6,000 - 15,000 feet beneath the surface.  For comparison sake, drilling in the Marcellus Shale underneath Ohio, Pennsylvania and New York is at commonly conducted at depths of 5,000 - 9000 feet. Another issue is whether drilling on the Monterrey shale would dangerously deplete water resources in California at a time of drought throughout the western United States, and deprive agricultural and residential users of the water they need.

[F]ood and farming activists have been sounding the alarm on the possible impact of fracking on the food we eat. The Monterey shale is a particular concern, because it sits below the same land where many of the state’s 81,000 farms—including big vineyards, orchards, and dairy operations—pump out a great deal of the state’s annual $43 billion worth of food.

n short, the oil and gas companies use a vast array of chemicals in the fracking process to extract oil and natural gas buried deep beneath the surface of the earth, while the rock formation or shale releases its own array of pollutants in the process. The liquid that’s left behind is often contained, but there’s increasing evidence that it’s leaking onto the landscape, and into our water-dependent food supply.

In states like Pennsylvania, Colorado, and Ohio, grazing animals have gotten sick and died after drinking fracking runoff and water from farm wells near fracking operations—often the main source of on-farm water. They’ve been poisoned with everything from arsenic, propane, and cobalt to uranium and radium. And the frequency of fracking-related tainted meat, dairy, and other food in the marketplace is yet to be thoroughly studied.

We have alternative sources of cleaner, less environmentally damaging energy.  Our water and agricultural resources are becoming more and more limited.  Let's hope that this Federal court holds firm and insists on a full and independent environmental assessment of the risks and dangers posed to California from massive oil and gas extraction in the Monterey Shale.  Let's also hope that federal courts in other jurisdictions will follow the lead of Judge Grewal and also require thorough compliance with existing environmental laws, including the regulation under NEPA that demand proper assessment of the environmental risks from fracking before they sign off on production of oil and gas from new and existing leases.

Originally posted to Steven D on Tue Apr 09, 2013 at 06:02 AM PDT.

Also republished by Climate Change SOS.

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