Whether the California Coastal Commission Eventually Regulates Fracking On the Outer Continental Shelf Will Have More to Do with Federalism than Science
On February 12 and 13th, the California Coastal Commission had its monthly meeting. Of the topics discussed at that meeting, perhaps the one most likely to generate any news was the Commission’s deliberations as to whether or not it should craft new regulations restricting the practice of offshore hydraulic fracturing — or, as it is commonly called, “fracking.”
In simplified terms, fracking is a process by which water and other chemicals are injected into oil and gas wells in order to force out additional fossil fuels. Fracking has been used to extract fossil fuels from the land beneath California’s coastal waters for decades, it is regulated by the Environmental Protection Agency, and, by most accounts, has proven quite profitable. However, in recent years as the process has grown in popularity opponents of fracking have begun to question its long-term effects on the environment (e.g. the possible contamination of groundwater, and the likelihood of toxic discharges into the ocean).
These growing concerns have made fracking a hot button issue for politicians, including the members of the California Coastal Commission. So, the Commission used its monthly meeting to discuss what should be done about it. Of particular concern to the Commission was the practice of deepwater fracking — i.e. fracking which occurs on the outer continental shelf more than three miles offshore.
As one would expect, a good deal of the public comments dealt with the science of fracking, whether or not it is dangerous, and whether the EPA’s current regulations are sufficient without additional State oversight. However, buried in a comment letter from the California Independent Petroleum Association (CIPA), was an issue that is of far greater interest to those of us who follow the California Coastal Commission and care about limited constitutional government. In that letter, CIPA argued that the Commission does not have jurisdiction to regulate fracking three miles out on the outer continental shelf. As CIPA explained, activities falling that far into the ocean are solely subject to federal jurisdiction.
That is an interesting argument. Historically states have had some authority to regulate their beaches and immediately adjacent waters. However, at a certain distance seaward, the Constitution vests all regulatory authority over U.S. waters to the Federal Government. That tradition has been complicated somewhat by subsequent regulations like the Coastal Zone Management Act which gives state agencies some input into federal regulatory actions in waters adjacent to that state agency’s coastline. However, the scope and effects of that law remain hotly contested. Moreover, logic dictates that at some point state jurisdiction into the open sea must end–California cannot assert regulatory jurisdiction over the entire Pacific Ocean.
Of course proponents of Coastal Commission oversight for offshore fracking suggest that the Commission has a legitimate interest in such activities because they necessarily affect the coastline of California. This is true. Yet, this interest alone is not enough to confer jurisdiction. The Commission’s jurisdiction is limited by the Constitution. It has always been the case that activities performed in other states, indeed in other countries, may affect the environment in California. Air pollution from refineries in Texas can travel into California, and radioactive materials from the Fukushima disaster in Japan have already washed up on California shores. Yet, the Coastal Commission is not therefore granted the authority to regulate refineries in Texas or Nuclear Power plants in Japan. Jurisdiction over such matters is left to other governments.
That is not to say that the Coastal Commission necessarily does not have jurisdiction over fracking on the outer continental shelf. As explained above, the Coastal Zone Management Act may give them that authority. One thing is certain however, if the Commission attempts to regulate such activities its authority to do so will be challenged, and that challenge will be about the limits of federalism, not the alleged dangers of fracking.
The California Coastal Commission Lawyers at Kassouni Law manage their practice with a specific focus -to protect the Constitutional rights of US citizens and their business enterprises against government abuse. If you would like to consult an attorney with experience in California Coastal Commission matters, consider contacting Kassouni Law, owner and managing partner Timothy Kassouni will speak with you personally.
