California Offshore Fracking Paused for More Environmental Study

Federal agencies can’t approve permits for offshore well stimulation treatments near California until they complete a more extensive environmental review, the Ninth Circuit ruled Friday in a setback for Exxon Mobile Corp. and DCOR LLC.

Offshore well stimulation treatments may harm endangered or threatened species and affect “unique geographic areas” in the Pacific Outer Continental Shelf, according to the US Court of Appeals for the Ninth Circuit. The effects of the treatments are also “highly uncertain and involve unknown risks,” the court said.

An environmental impact statement was warranted under the National Environmental Policy Act, according to the ruling, and not a limited environmental assessment the agencies completed that didn’t fully study the effects of fracking on the environment.

The ruling was a win for environmental groups that learned through Freedom of Information Act requests that agencies under the US Department of the Interior approved permits for the offshore fracking without preparing an EIS. A judge earlier ruled partly in the government’s favor, saying that the agencies’ review passed muster under NEPA.

The government assumed in its environmental assessment that well stimulation treatments would be so infrequent that the environmental harm would be “insignificant.” But the evidence shows the agencies don’t know the actual number of treatments that occurred in the past because the data collection was incomplete, the appeals court said.

This “excessive reliance on the asserted low usage of well stimulation treatments distorted the agencies’ consideration of the significance and severity of potential impacts,” the court said.

The federal government also found that compliance with a permit issued by the Environmental Protection Agency under the Clean Water Act would make the effects of the treatment insignificant.

But the permit issued by the EPA that the agencies cited here didn’t specifically address the impact of the treatments at issue, nor was it intended to be used for them, according to the ruling.

The agencies failed to consider a full range of alternatives, including suggestions by California to ban treatments in certain areas or during certain times of the year, the court said. It also failed to consider limiting the number of treatments each year, according to the ruling.

Exxon Mobile and DCOR challenged the lower court’s decision to block the agencies from approving permits until they consulted with the US Fish and Wildlife Service and completed a consistency review with California. Instead of siding with the companies, the appeals court found the injunction was too narrow.

Judge Ronald M. Gould wrote the opinion. He was joined by Judges J. Clifford Wallace and Carlos T. Bea.

Kristen Monsell, oceans program legal director at the Center for Biological Diversity, said Friday that the court’s decision was an “amazing victory for California’s coast and marine life.”

“This decision will prevent more toxic chemicals from poisoning fish, sea otters, and other marine life,” Monsell said. “And it brings us a step closer to ending offshore drilling once and for all.”

Environmental Defense Center represented itself and the Santa Barbara Channelkeeper. Center for Biological Diversity represented itself and the Wishtoyo Foundation. The California Attorney General’s Office represented the state, which also joined as a plaintiff.

The Justice Department represented the federal government.

The case is Envtl. Def. Ctr. v. Bureau of Ocean Energy Mgmt., 9th Cir., No. 19-55526, 6/3/22.