Malia McPherson is a 3L at Stanford Law School. This post is part of the Environmental Law Review Syndicate.
On November 4, 2014, the voters of San Benito County passed Measure J, a voter initiative banning hydraulic fracturing (‘fracking’) and all other high-intensity petroleum operations within county lines. Under California law, only a subsequent voter initiative can overrule this fracking ban. While it is not the first county or city within California to take a stand against fracking, San Benito’s path to a successful ballot initiative was unique. Despite being dramatically outspent in the run-up to the election, the San Benito anti-fracking coalition San Benito Rising defeated industry interests through a simple strategy of basic grassroots organization. The movement was largely leaderless, it was community focused, and it represented both minority and majority interests. How did it succeed? Given the potential risks posed by fracking, and the legal context that left a regulatory ‘gap’ for Measure J to fill, the San Benito experience shows that it is indeed possible for community-centered lawyering and the voter initiative process to protect community environmental integrity on a precautionary basis against encroachment from outside interests.
I. THE RISKS POSED BY FRACKING
“Fracking” is the collective and colloquial term for the use of high volume hydraulic fracturing for fossil fuel extraction. Its purpose is to extract oil and gas from rock formations deep underground (in deep shale formations) with high-pressure ‘fracking fluids’. These fluids contain “significant amounts of water, sand, and chemicals” that fracture the rock layers to free the trapped oil or gas so it can be pumped out.
Although fracking as a process has been in use for decades, its environmental consequences remain significant. First, fracking is an intensive activity that requires large access roads, acres of clearing sites, drilling rig access, and storage and processing structures. Once a well is drilled, millions of gallons of water are brought into the site and mixed with chemical agents, sand and emulsifiers. Although the fracking fluid is 98% water, the oil and gas industries have reported that between 2005 and 2009, 29 chemicals were used in fracking fluids that were “(1) known or possible human carcinogens, (2) regulated under the Safe Water Drinking Act for their risks to human health, or (3) listed as hazardous air pollutants under the Clean Air Act.” These fluids have to be kept out of normal watersheds in surface containments, or be sequestered underground – in either location these fluids have the potential to “eventually . . . migrate into and contaminate groundwater sources for waterways and drinking supplies.”