Tuesday, November 20, 2012

"Pattern and Practice" Lawsuit Challenges State’s CEQA Compliance in Permitting Fracking

The oil and gas industry’s increased use of hydraulic fracturing or “fracking” continues to gain attention in California.  Several non-profit organizations recently filed a lawsuit against the California Department of Conservation, Division of Oil, Gas and Geothermal Resources (“DOGGR”) seeking declaratory relief that the Department is violating the California Environmental Quality Act (“CEQA”) in the permitting of oil and gas wells, by failing to consider the environmental impacts of oil and gas development, including the effects of fracking. (Center for Biological Diversity et. al. v. Cal. Dept. of Conservation, Div. of Oil, Gas and Geothermal Resources [Super. Ct. Alameda County, Case No. RG12652054].) The complaint also seeks injunctive relief, to enjoin DOGGR from approving any further permits for oil and gas wells where fracking may occur.

Rather than challenge any specific permit, the complaint raises a fairly novel "pattern and practice" claim, alleging that over a dozen of DOGGR's past permitting actions violated the mandates of CEQA. However, the complaint admits DOGGR prepared and filed CEQA Notices of Exemption or Negative Declarations for each such permit. The normal method to challenge CEQA compliance for any of these actions would have been for these groups to file suit 30 or 35 days after DOGGR took the permitting action and filed notice of such. Accordingly, another reason this case bears watching is to see how this novel "pattern and practice" claim is resolved.

By stipulation, the parties agreed to an extension of the time for DOGGR to respond to the complaint. The DOGGR now has until December 17, 2012, to respond to the complaint.

For additional information regarding this case, visit the court’s website, then enter case number RG12652054 under the "Case Summary" page.

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