Government / Politics

Monterey Co. ruling on Measure Z expected to affect other counties with similar measures

Judge's decision on Monterey Co.'s Measure Z says existing state and federal laws pre-empt county vote

A Monterey County Superior Court judge announced his intended decision Thursday in a challenge by several interests to Measure Z, the anti-fracking initiative passed by county voters in 2016.

Judge Thomas Wills’ decision came just six weeks after taking the case under submission. 

Lawyers familiar with the issue said the ruling will likely affect all California counties, including San Benito County, in the same way.

Judge Wills found that state and federal laws pre-empt county laws regarding the regulation of injecting underground oil wells with water and steam and the prohibition of new oil wells.

The ban on fracking remains in place, while the oil industry can continue to drill new wells and inject them with water and steam.

However, there is no fracking going on in either counties due to the depth of the oil and soil types. Oil drilling in Monterey County is done in the San Ardo and Lynch Canyon areas. Because of the sandy nature of oil bearing strata in San Benito and Monterey county oil fields, fracking is not necessary to extract oil. The San Ardo oil field is the fifth largest in the state.

“We’re very pleased that he (Judge Wills) struck down underground injection of water and the prohibition of new wells,” said attorney Theodore J. Boustous Jr., who represented Chevron U.S.A. Inc. in the challenge of Measure Z.

Boustous said the court recognized that state and federal laws regulate these issues, not county law. He said Chevron respectfully disagrees with the court on not lifting the ban on fracking.

As far as an appeal, Boustrous said, “We’re going to look at the ruling and see what the other side does.”

The other side, Protect Monterey County, plans to appeal, said Kassie Siegel, an attorney for the Center for Biological Diversity, based in Arizona, which represented Protect Monterey County pro bono.

“The core of the (judge’s) decision is that the ban on oil and gas wells and preinjection is pre-empted by state law, and we disagree,” Siegel said. She said there are 100 years of state court decisions that uphold initiatives and ordinances very similar to Measure Z.

“We will appeal this decision,” said Dr. Laura Solorio, president of Protect Monterey County, in a news release. “We’re confident that a higher court will uphold Measure Z in full and affirm the right of communities to protect themselves from risky oil operations,” she said. “California law provides local governments with broad authority to protect our air, water and health.”

As far as Measure J is concerned, what was known as the "anti-fracking" measure passed in 2014 by San Benito County voters remains in full force and effect, Siegel said. But she said that’s not to say that an oil company might decide to challenge it. One oil company did file a challenge after Measure J was passed, but it was later dropped.

Measure J, in San Benito County passed by a margin of 58.90 percent, with 41.10 percent voting against it. In Monterey County, Measure Z was approved by 56 percent, with 43.9 percent voting no.

Six individual challenges to Measure Z were consolidated before the trial, which was heard Nov. 13-15 in Monterey. Arguments were presented by both sides.

Chevron, other oil companies and royalty owners contended that preexisting state and federal laws supercede county law through the Division of Oil, Gas and Geothermal Resources. 

Walk Duflock of San Ardo put together a group of royalty owners who challenged Measure Z. Regarding the judge’s decision, he said, “From the royalty owners’ perspective, we’re really happy with outcome … because it says the oil drilling and waste water (oversight) is pre-empted by the state. …"

The plaintiffs also said that if the judge struck down any part of Measure Z, the entire initiative should be struck down.

Duflock said it is unfortunate that Monterey County spent millions of dollars defending Measure Z, money that could have been spent on schools and roads. He said it’s important for the county to put safeguards in place to prevent outside groups from attempting to regulate the county’s oil and agriculture industries in the future. San Ardo is currently the fifth largest oil field in California. 

“It’s a great day for the royalty owners because the (oil) industry now gets to keep doing what we’ve been doing.”

The wording of Measure Z, Duflock said, was misleading by “calling it a fracking ban when it was going to be an oil shutdown.”

Monterey County attorneys argued that Measure Z allows some well stimulation treatments but the number of wells in the county cannot increase. They contended that the county has authority over land use issues affecting underground operations without regulating them.

According the Judge Wills’ decision, the only fracking ever done in Monterey County occurred about 10 years ago.

In hydraulic fracking, rock is fractured by a pressurized liquid. The process involves the high-pressure injection of fracking fluid into a well bore to create cracks in the deep-rock formations through which natural gas, petroleum, and brine will flow more freely. When the hydraulic pressure is removed from the well, small grains of hydraulic fracturing grains (either sand or aluminium oxide) hold the fractures open.

Measure Z proponents contend waste water injection has been linked to induced earthquakes.

Oil in San Benito and Monterey County oil fields are highly viscous and must be heated by injecting steam underground to make it more fluid so that it can be pumped out. 

Measure Z allowed a landowner to apply for a county exception to its provisions if the landowner felt it effected an unconstitutional taking of property and the county could grant such exceptions.

Both sides in the case have an opportunity to file judgments and writs before the judge’s decision is final.


See court ruling as attached PDF

Thomas Leyde