By October 3, 2016 0 Comments Read More →

The Center for Biological Diversity: A litigation factory that doesn’t shoot straight

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In this May 1, 2014 photo, irrigation water runs along the dried-up ditch between the rice farms to provide water for the rice fields in Richvale, Calif. California’s drought-ravaged reservoirs are running so low that state water deliveries to some metropolitan areas have all but stopped, and cutbacks are forcing growers to fallow fields. (AP Photo/Jae C. Hong)

California citizens should be outraged by the Center for Biological Diversity’s repeated wasting of their valuable tax dollars

As Energy In Depth has highlighted before, the Center for Biological Diversity (CBD) is an extremist “multimillion dollar litigation factory” that brags about ignoring science and the law in pursuit of its agenda.

Its agenda is to use “psychological warfare” to “mock,” “destroy” and delay projects of every type – not to advocate more effective regulations or to protect the environment. CBD also routinely misleads elected officials and intentionally misrepresents important data.

CBD doesn’t particularly care about the outcome of any particular case it files. It is the ultimate practitioner of the legal philosophy known as “throw it against the wall to see if it sticks.”

The “win” for CBD is to generate in the many, many press releases it writes about simply filing cases and pouring sugar into the gas tank of the regulatory process. At CBD, wasting the time and energy of industry, regulatory agencies, and the court system – not to mention taxpayer dollars – is a profession.

CBD’s latest legal defeat occurred last week in Alameda County, CA, in yet another embarrassment of a lawsuit against the California Department of Conservation’s Division of Oil, Gas and Geothermal Resources (DOGGR), the state’s chief regulator of oil and gas development.

The suit (Case No. RG15769302) sought a court order invalidating DOGGR’s emergency regulations (now permanent) that lay out a pathway for updating the state’s Underground Injection Control (UIC) regulations and related aquifer exemption boundaries for all the oilfields in the state.

The suit also  asked the judge to order DOGGR to immediately shut-in thousands of oil and gas-producing wells in California. Such an absurd request has now become one of CBD’s predictable tactics.

Background

Since 1982 California has been a state with “primacy” (primary enforcement responsibility) over laws like the Safe Drinking Water Act (SDWA) because it has adopted necessary standards and enforcement measures – measures which include a UIC program – governed by the Memorandum of Agreement (MOA) signed between California and federal regulators.

The Safe Drinking Water Act defines any water containing less than 10,000 milligrams of total dissolved solids (TDS) per liter (10,000 mg/L) TDS as “potential sources of drinking water”.

This does not mean that the EPA believes water at 9,500 TDS is a potential source of drinking water, it simply had to pick a threshold at which a state must evaluate its water.

Furthermore, the EPA has issued Secondary Drinking Water Standards which state that drinking water should contain no more than 500 TDS. The state of California has an even higher standard for water with “potential beneficial use,” including irrigation water. In truth, drinking water typically has TDS levels of 500 mg/L or less.

It should go without saying that 500 TDS water mixed with oil and gas located 5,000 feet underground is not a potential source of drinking water. Obviously it is not safe to consume crude oil or natural gas, and no one would drill that deep for water of such low quality anyway.

California oil companies have to prove that any water they are injecting into the ground is not a potential source of drinking water, and they must prove that the water will be contained in that aquifer after it is injected (this is called “zonal isolation”).

Furthermore, they have to convince DOGGR, the State Water Board and the EPA that their evaluation is accurate after numerous filings and public hearings and comment periods.  That’s a very high threshold, and that is why Californians can always expect their water to be clean and reliable.  Interestingly, no other industry is held to equally extensive regulatory standards, even though there are 20,000 non-oil and gas injection wells in California.

EPA-DOGGR Alignment

The issue at hand is rather mundane. Today’s aquifer exemption boundaries were hand-drawn in the 1970’s. Recently, DOGGGR approved injection from surface locations outside these boundaries because it knew that injection well operators would introduce water into aquifers that had been previously exempted.

The EPA claimed that the state should have formally requested a boundary adjustment prior to approval of the new injection wells, even though they were injecting into a previously approved aquifer. It is important to note that the EPA did not shut down the injection wells in question while the formal line adjustments were being evaluated to reflect contemporary aquifer conditions.

They did shut down some wells “out of an abundance of caution” but so far testing has shown that no contamination has occurred, and none was alleged. EPA and DOGGR are working together to align their terminology. More information about DOGGR and EPA coordinating to update and align requirements can be foundhere.

Center for Biological Diversity’s attempt to scare Californians

Even though this is simply an issue of aligning regulatory terminology, CBD attempted to invalidate DOGGR’s emergency regulations by inserting itself into this matter by filing a suit (and, of course, issuing a press release).

Center for Biological Diversity has pounced on confusion about the word “exempt” to scare its followers – and judges — into believing that oilfield-produced water has been injected into aquifers containing drinking and irrigation water ever since this issue was first raised last year. The fact is that water containing oil and gas is never “suitable for drinking” regardless of total dissolved solids (TDS) level or other criteria.  Oilfield-produced water can only be injected into zones where the water is not suitable for drinking.

As Rock Zierman of the California Independent Petroleum Association (CIPA) clearly put it:

“State regulators have successfully regulated injection of produced water from oil and gas operations for decades. To date, there has not been a single case where the state has allowed injected water to taint drinkable water. The U.S. Environmental Protection Agency (EPA) has asked the state to help it update the paperwork used to regulate the practice [of injection] and the state has developed a work plan to do so. Those are the facts.”

While playing rhetorical games in order to scare its funders is something CBD does routinely to inflate frivolous opportunities for numerous press releases and false claims (which EID has exposed), the group’s attempt to insert itself into the DOGGR-EPA process did not go over well in court.

The decision

Alameda Superior Court Judge, the Honorable George C. Hernandez, Jr., was having none of CBD’s disingenuous arguments when he released his final ruling last week. In his tentative ruling in July, Judge Hernandez found, among other things:

  • Center for Biological Diversity has no standing to enforce the MOA between the EPA and DOGGR.
  • The injections in question were permitted by DOGGR consistent with the SDWA.
  • Any breach of the “aquifer exemption” term of the MOA would trigger remedies that would be enforceable by the EPA.
  • The EPA is helping the State achieve full compliance with the MOA.
  • THE SDWA does not impose a duty on DOGGR that is enforceable by a writ (as CBD sought).
  • DOGGR’s actions are consistent with, not conflictual to, the SDWA.
  • Center for Biological Diversity’s claim for relief on the emergency regulations is moot because the emergency regulations have been succeeded by permanent regulations.

In the final judgment, entered on September 21, Judge Hernandez wasted no words:

IT IS ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

  1. The complaint for declaratory relief is denied.
  2. The petition for writ of mandate is denied.
  3. All other relief is denied.
  4. Plaintiffs and petitioners shall take nothing.
  5. The California Department of Conservation, Division of Oil, Gas, and Geothermal Resources and Respondents-in-Intervention shall recover costs.

In short, this was a waste of the court’s time and of taxpayer dollars. CBD has already filed another case related to aquifer exemption in another county in a second attempt to get a bite of the apple (and another press release) and waste more state resources.

This is consistent with Center for Biological Diversity’s business model of filing nuisance lawsuits with no leg to stand on in an attempt to halt oil and gas production.

The Center for Biological Diversity’s efforts are a poor model of responsible environmental stewardship and have nothing whatsoever to do with “biological diversity.”

California citizens should be outraged by the Center for Biological Diversity’s repeated wasting of their valuable tax dollars that could be spent on productive endeavors.

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