Groups Initiate Lawsuit Against Federal Government to Protect Endangered Species From Offshore Fracking and Acidizing

 August 10, 2016

Photo by Erin Feinblatt

Santa Barbara—The Environmental Defense Center (“EDC”) and Santa Barbara Channelkeeper (“Channelkeeper”) sent a notice of intent to sue the federal government over its decision to approve the practices of fracking and acidizing from 23 offshore oil platforms in southern California, including in the Santa Barbara Channel.  The notice letter alleges that the federal government is in violation of the federal Endangered Species Act (“ESA”) because it failed to consult with the expert wildlife agencies regarding potential impacts from these well stimulation techniques to at least 25 threatened and endangered species, including whales, sea otters, fur seals, sea turtles, marine and coastal birds, fish, and abalone.

EDC and Channelkeeper sent this notice in response to the May 27, 2016 decision by the federal Bureau of Ocean Energy Management (“BOEM”) and Bureau of Safety and Environmental Enforcement (“BSEE”) to approve well stimulation treatments, including fracking and acidizing, without any qualifications or restrictions, through a Finding of No Significant Impact (“FONSI”) and Programmatic Environmental Assessment.

“The government’s own analysis identifies potential threats from fracking and acidizing to many threatened and endangered species,” said Maggie Hall, Staff Attorney at EDC. “Local wildlife risk exposure to toxic chemicals in frac flowback, collisions with vessels delivering chemicals to offshore platforms, and harm caused by the heightened risk of oil spills, among other concerns.”

“The impacts of offshore fracking and acidizing have never been meaningfully analyzed,” said Kira Redmond, Executive Director of Channelkeeper.  “These practices will extend the life of existing oil platforms in a sensitive marine environment, which is still recovering from the May 19, 2015 Plains All American Pipeline rupture that devastated California’s coastline.  We need information to understand the potential impacts of these practices so that appropriate measures can be implemented to protect the diverse web of marine life off our coast.”

BOEM and BSEE recognize the potential for impacts to wildlife, yet dismiss them as “negligible,” and have decided not to initiate consultation on the many threatened and endangered species that may be present.  The ESA requires that all federal agencies ensure that their actions do not jeopardize the continued existence of protected species or result in destruction or adverse modification of critical habitat.  Accordingly, when an action “may affect” a listed species or critical habitat, a federal agency like BOEM or BSEE must engage in consultation with the expert wildlife agencies, Fish and Wildlife Service and National Marine Fisheries Service, to assess impacts. Through formal consultation, these agencies will prepare a “biological opinion” and impose safeguards to ensure that wildlife and their habitat are not harmed.  None of these required steps has been taken with respect to offshore fracking and acidizing, even though the practices “may affect” at least 25 listed species.

The Santa Barbara Channel harbors such incredible biological diversity that it has been dubbed the “Galapagos of North America.”  The following threatened and endangered species depend on the local environment for their survival and recovery, and are at issue in the notice letter:

• Marine mammals: sei whale, blue whale, fin whale, North Pacific right whale, humpback whale, sperm whale, Guadalupe fur seal, southern sea otter
• Benthic organisms: black abalone, white abalone
• Fish: southern California steelhead, scalloped hammerhead shark, southern green sturgeon, tidewater goby
• Birds: the light-footed Ridgway’s rail, western snowy plover (Pacific DPS), marbled murrelet, California least tern, short-tailed albatross, Hawaiian petrel, California Ridgway’s rail
• Sea Turtes: loggerhead turtle (North Pacific ocean DPS), the leatherback turtle, the green turtle, and the olive ridley turtle.

The Programmatic Environmental Assessment was prepared under the National Environmental Policy Act (“NEPA”), and was a hard-fought requirement of EDC’s recent lawsuit settlement with BOEM and BSEE.  It marks the agencies’ first attempt at analyzing the potential risks of these practices; however, it falls short of legal requirements. EDC and Channelkeeper both submitted comment letters highlighting numerous fundamental flaws in the Draft Programmatic Environmental Assessment that was released in April, and requested that the agencies conduct consultation with respect to wildlife, and prepare more comprehensive environmental review.  Unfortunately, the government did not correct its course and has again failed to assess potential impacts to wildlife.  EDC and Channelkeeper’s notice letter was sent pursuant to the ESA’s 60-day notice requirement, which in this case will provide BOEM and BSEE a period to come into compliance before a lawsuit is filed.

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The Environmental Defense Center, a non-profit law firm, protects and enhances the local environment through education, advocacy, and legal action and works primarily within Ventura, Santa Barbara, and San Luis Obispo counties. Since 1977, EDC has empowered community-based organizations to advance environmental protection. EDC’s focus areas include protection of the Santa Barbara Channel, ensuring clean water, preserving open space and wildlife, and addressing climate and energy. Learn more about EDC at www.EnvironmentalDefenseCenter.org.

Santa Barbara Channelkeeper is a grassroots non-profit organization dedicated to protecting and restoring the Santa Barbara Channel and its watersheds through science-based advocacy, education, field work and enforcement. Learn more about Channelkeeper at www.sbck.org.