Public Law

Public Law Journal: Fall 2014, Vol. 37, No. 4

To Ban or Not to Ban: How California Cities and Counties Can Effectively Regulate Oil and Gas Fracking Activity without the Risk of a Total Ban

By Dr. Robert H. Freilich and Neil M. Popowitz*

I. INTRODUCTION

New and greatly increased oil and gas productivity, resulting from hydraulic fracturing, commonly known as "fracking,"1 spreading from the Wattenberg Field in Colorado, the Bakken Field in North Dakota and Montana, the Marcellus Field underlying Maryland, New York, Ohio, Pennsylvania, and West Virginia, to the Barnett and Eagle Ford Fields of Texas,2 has ushered in a new era of abundant oil and natural gas and made the United States once again one of the largest producers of fossil fuels. These fields have now been joined by the discovery in California of the Monterey Shale which may dwarf all of the other fields combined.3

Since 2011, the possibility that fracking will make the Monterey Shale oil and gas reserves productive over large areas of five counties (Fresno, Kern, Merced, San Joaquin and Stanislaus) has gained state and national attention. Despite varying estimates,4 based not on the extraordinary projected amount of oil, but on the short term ability of current fracking technology to extricate the resource,5 the possibility of oil shale extraction in California has shaken the state from coastal areas to the Central Valley. Some constituencies in cities and counties favor a total ban on fracking, based on a host of alleged environmental, health, safety, air quality, water pollution, water availability and community concerns. In contrast, numerous rural county landowners, oil and gas companies and business associations see California’s economic and energy future resting on the subsurface foundation of shale oil and gas in agricultural Central Valley counties with high unemployment,6 where prevailing drought conditions have induced major agricultural cutbacks.

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