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California Court of Appeal strikes down Monterey County’s ban on fracking – Monterey Herald

MONTEREY COUNTY — A state appellate court has ruled against a Monterey County ban on new fracking wells, paving the way for Chevron and a bevy of smaller oil companies to begin new oil and gas drilling, including fracking.

The Tuesday ruling by a three-judge panel of the California Court of Appeal for the Sixth Appellate District effectively stripped the power of Monterey County to regulate certain oil and gas exploration and operations in the unincorporated areas of the county, stating that a county cannot usurp the regulatory authority of the state.

The ban was approved by voters in November 2016 by passing Measure Z, called “Protect our Water: Ban Fracking and Limit Risky Oil Operations Initiative,” which was written by the nonprofit group Protect Monterey County. It proposed to amend the county’s General Plan by adding three new land-use policies: prohibiting well-stimulation treatments, wastewater injection and drilling new oil and gas wells.

With two of those policies — banning wastewater injection and banning new oil and gas wells — the appellate court ruled that they conflicted with the state’s authority to regulate such operations. Wastewater injection places fluids underground in porous rock to loosen trapped oil or gas deposits. The fluids can be wastewater, brine or water mixed with chemicals.

Well stimulation was dropped from the case because none of the oil companies were using or proposing to use that particular kind of extraction, the three-judge panel ruled. The ruling brought immediate condemnation from Protect Monterey County.

“This ruling flies in the face of local people who just want to protect ourselves and our groundwater from filthy oil and gas production,” said Dr. Laura Solorio, president of Protect Monterey County, in a statement. “Voters spoke loud and clear that we want to move away from the polluting fossil fuel industry. We’ll keep fighting for voters to be heard.”

Shortly after Measure Z was passed, Chevron U.S.A. Inc., Bakersfield-based Trio Petroleum LLC, Eagle Petroleum LLC, also based in Bakersfield, and Aera Energy, along with the California Resources Corp., filed suit in Monterey County Superior Court. That ruling, handed down by Superior Court Judge Thomas Wills, also went against Protect Monterey County.

Joined by the Center for Biological Diversity, Protect Monterey County appealed the ruling to the Sixth District.

“This decision is contrary to a century’s worth of court cases upholding the power of cities and counties across California to protect their residents from dangerous oil operations,” said Hollin Kretzmann, an attorney at the Center for Biological Diversity’s Climate Law Institute. “Protect Monterey County is evaluating the decision and will likely seek review by the California Supreme Court.”

Review by the California Supreme Court is extremely rare. The court only grants review in roughly 5% of cases in which a petition for review is filed. Unlike with appeals in the Courts of Appeal, the Supreme Court is not required to hear all cases filed before it. The review process allows the Supreme Court to choose the cases it wants to hear.

Justice Franklin Elia, writing for Justice Patricia Mamattre-Manoukian and Justice Mary Greenwood of the three-judge panel, said objections raised by Protect Monterey County’s attorneys that Wills errored in evidentiary rulings were not relevant because the ordinance that was created following the passage of Measure Z usurped state authority.

“Because we uphold the trial court’s decision on the grounds of state law preemption, we need not consider whether Measure Z is also preempted by federal law. … We also need not address (Protect Monterey County’s) challenge to the trial court’s evidentiary rulings as those rulings play no role in the resolution of the state law preemption issue, which is an entirely legal issue,” Elia wrote in the ruling. “We affirm the trial court’s judgement.”

The legal standard the oil companies argued before the appellate court included “inverse condemnation,” a liability concept that entitles property owners to be compensated if their property is damaged by a public use. This liability rule applies to all government agencies, as well as utilities. In essence, the oil and gas industry argued that banning certain operations would damage their property.

The Center for Biological Diversity, citing the recent oil spill in Southern California, said in its statement that the court’s action puts additional “pressure on Gov. Gavin Newsom to protect Californians from fossil fuel pollution statewide.

“Climate and health advocates continue to call on Newsom to stop approving new oil and gas projects,” the center stated.

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