Newsom's plan to ban fracking in California faces skepticism

On the hood of an electric car, California Gov. Gavin Newsom signs an executive order on climate change.

Oct. 7, 2020 10:28 AM PT

SACRAMENTO — When Gov. Gavin Newsom promised last month to phase out gas-powered vehicles and called for an end to fracking in California, his announcement drew national attention and thrust him to the forefront of the fight against climate change.

But it’s becoming increasingly clear that a big part of that pledge is going to be difficult to carry out.

His request for the California Legislature to ban hydraulic fracturing by oil and gas companies is being met with skepticism by lawmakers who say outlawing the controversial practice will require more from Newsom than merely words.

“If this is going to be successful, we’re going to need not just a governor’s endorsement, but he needs to put the muscle behind this also to help get the votes together,” said Assemblywoman Cristina Garcia (D-Bell Gardens). “I’ve seen bills that do way less related to oil die in the Legislature.”

The call to ban fracking left some questioning whether the intent of the well-timed move by a governor with a taste for big promises was to draw national headlines or to launch a political dogfight in Sacramento against oil interests and their trade union allies. Legislators and environmentalists have lost that brawl before, and to win next year, they say, would require the governor to use his position to push the proposal through in a way they’ve rarely seen him do with legislation.

A debate over fracking at the state Capitol would crack open ever-widening fissures in the Democratic Party between liberals in coastal and urban areas, who are propelling California’s quest to reverse climate change, and moderates representing some inland communities that they say stand to lose thousands of working-class jobs.

“They’re not just jobs. They’re good-paying, middle-class, union jobs that are going to be lost,” said Assemblywoman Blanca Rubio (D-Baldwin Park), who represents the eastern San Gabriel Valley and is the newly chosen leader of a bloc of moderate Democrats in the lower house. “What are we going to do for them? Where are they going to go?”

Hydraulic fracturing involves shooting at high pressure a mix of water, sand and chemicals deep underground to extract oil and natural gas. Environmentalists oppose the practice because of its potential to contaminate drinking water supplies, while oil interests say banning it will only increase the state’s reliance on foreign fuel.

Newsom’s call for a ban notably does not include another controversial method used to extract oil called cyclic steam injection, which pumps super-heated vapor into wells to loosen and liquefy viscous crude oil. Steam injection was suspected to be a factor in one of California’s largest oil spills in decades in the summer of 2019, when more than 900,000 gallons of oil and brine oozed from a Chevron Corp. facility in McKittrick, a tiny town in oil-rich Kern County. California regulators have fined Chevron $2.7 million for violations at the oil field.

Steam injection is also considered hazardous to oil workers. In 2011, Chevron engineer David Taylor died while he was inspecting a steam-injected well near Taft, also in Kern County. The soil caved in beneath him and he fell into a cavity that contained 190-degree water and hydrogen sulfide.

Just 638 of the 61,682 active oil and gas wells in California use hydraulic fracturing, according to the state Department of Conservation, which regulates the oil and gas industry.

Between 2005 and 2015, about 20% of oil and gas production in California came from wells that used hydraulic fracturing, according to a 2015 report by the California Council on Science and Technology.

But lawmakers are considering going beyond Newsom’s call by introducing a bill that includes a ban on hydraulic fracking and steam injection, which would make the fight even more difficult, said Assemblywoman Monique Limón (D-Santa Barbara).

“The legislation is not in print, but we’ve had conversations as a group of legislators and there is interest to see it go further than his definition,” Limón said.

Robbie Hunter, president of the State Building and Construction Trade Council of California, cast the potential ban as symbolic of a broader effort to reduce dependence on oil and natural gas without producing enough green alternatives to meet the state’s energy needs and create a new pipeline of jobs.

“It’s a classic effort to trim the industry here in California,” Hunter said. “We’re being elitist saying that, ‘Well, we won’t do it here, but the rest of the world can supply us.’ We think an across-the-board ban on fracking is another stab to kill the industry and stop us from meeting our own energy needs.”

While oil companies have the financial resources to run ad blitzes against lawmakers, their relationship with the trade unions has given them the support needed to beat back attempts to curtail the industry.

Lawmakers approved a bill in 2013 to require a skilled and trained workforce at oil refineries and petrochemical facilities, which opened up more jobs for the building trades. The following year a bill to ban fracking failed to progress out of the state Senate.

This August, Californians saw just how difficult passing legislation to regulate the oil and gas industry can be. A bill to establish minimum setback distances between wells and residential areas, along with public places such as schools and playgrounds, failed to make it out of a Democratic-controlled state Senate committee — primarily because of fierce opposition by the trade unions and oil industry — even after it was passed in the Assembly.

Hunter had a close relationship with former Gov. Jerry Brown, who increased restrictions on fracking but rebuffed demands from activists to end the practice altogether. Although Hunter publicly feuded with Newsom last year, he appears reluctant to wage another war over fracking when it’s clear that lawmakers already have doubts about the governor’s ban. He said he received advance notice about Newsom’s announcement and believes the governor’s office understands the need to increase green alternatives.

“He’s being driven hard and pushed hard in a lot of directions,” Hunter said. “ I think we need to pull on his sleeve as much as we can and explain and promote and show him.”

Tom Baca of the International Brotherhood of Boilermakers said he didn’t think Newsom understood the plight of workers in his union.

“He just makes these decisions,” Baca said. “I don’t remember having any discussions with him about it. He just goes and does what he thinks the environmentalists or whoever want him to.”

But environmentalists also weren’t thrilled with the governor’s announcement.

Some climate advocates said he punted the tough issue to the Legislature and abdicated his executive authority by choosing not to more swiftly ban the controversial oil extraction method on his own.

During his 2018 campaign for governor, Newsom said he opposed fracking because it posed possible health and environmental risks. But he shied away from advocating for an outright ban until last week, despite consistent pressure from politically influential environmental groups.

Since taking office, Newsom has argued that, under current California law, he lacks the executive authority to ban fracking, saying that’s why he needs the Legislature to step in.

“We simply don’t have the authority. That’s why we need the Legislature to approve it,” he said during a news conference calling for the ban, as well as phasing out the sale of new gasoline-powered vehicles by 2035.

Environmental advocates and legal experts say Newsom does have that authority.

“Given that the governor wants to be audacious on climate policy, it’s very curious to me why they wouldn’t take this and run with it,” said attorney Deborah A. Sivas, head of the Stanford University Environmental Law Clinic. “I think if he wanted to do it, he would do it.”

The state’s oil and gas supervisor in the California Department of Conservation, which reports to Newsom, has the authority under the public resources code to prevent “damage to life, health, property, and natural resources” caused by oil and gas well drilling or operation in the state, as well as by pipelines and other infrastructure, Sivas said.

Sivas said state law gives Newsom clear authority to order the Department of Conservation to stop issuing permits for new fracking wells. The governor has not hesitated to exercise similar executive authority in his response to the COVID-19 pandemic, such as ordering the state Department of Public Health to require Californians to wear masks.

“He’s been willing to do all sorts of things, to push the envelope,” Sivas said. “You’re going to get sued one way or another. So just do it and get your good lawyers to defend it.”

The Newsom administration has declined to explain the legal basis behind its assertion that the governor lacks the authority to act, despite repeated requests from The Times to do so.

In November, Newsom imposed a temporary moratorium on all pending fracking permits until they could be scrutinized by independent experts from the Lawrence Livermore National Laboratory. He also ordered California’s system for issuing fracking and steam injection permits to be audited by the state Department of Finance to determine if it complies with state law and asked the agency to recommend ways to strengthen the permitting process.

The audit of the state’s permitting process is expected to be finalized this month — but in the meantime the moratorium has been lifted.

The California Geologic Energy Management Division, known as CalGEM, has issued close to 50 new hydraulic fracturing permits to Chevron and Aera Energy, a partnership of Shell Oil and Exxon Mobil, since April. State Oil and Gas Supervisor Uduak-Joe Ntuk said in August that the permits that were granted underwent independent environmental review.

Kassie Siegel, director of the climate law institute at the Center for Biological Diversity, said the moratorium was another example of Newsom undertaking what sounded like a bold initiative — a moratorium on fracking — only to have the reality not live up to the hype.

Seven months after taking office, Newsom fired California’s top oil industry regulator, saying that he issued too many hydraulic fracturing permits. But the governor would not commit to banning or limiting the oil extraction process.

“Time and time again, politicians will make these grand announcements. They will receive acclaim, and then they will use the political cover for further delay,” Siegel said. “We’re out of time. We can’t afford any more delays.”

Assemblyman Phil Ting (D-San Francisco) said Newsom’s endorsement of a fracking ban “definitely moves the needle” in ways that he and his colleagues could never achieve under Brown, but the issue is far from settled.

The potential for opponents to label a ban as a de facto increase in the price of oil and natural gas could also prove difficult to overcome. The 2018 recall of then-state Sen. Josh Newman (D-Fullerton), after opponents cast him as a critical vote on a gasoline tax bill, remains fresh in the minds of lawmakers. Newman is seeking reelection in November.

Casting doubt on the Legislature’s ability to seriously consider and debate such a complex topic in what could become another abbreviated legislative year due to the coronavirus, Rubio said she plans to advocate for a task force to study the issue and delay any decision until 2022.

Lawmakers including Garcia say it’s been hard to get the governor’s attention on bills over the last two years and question whether other priorities will take precedence over working toward a ban.

Last year Newsom entered negotiations on a rent cap bill after advocates and opponents had already struck a deal, but he ultimately made the law stronger. This year the governor’s office became involved in a fight over tenant protections during the pandemic, giving whiplash to supporters who complained that he weakened the legislation.

The governor, who has described housing and homelessness as his top priority, also took heat in January for not doing more to support Senate Bill 50, a proposal to dramatically increase housing production in California that fell flat.

Newsom’s aides have described the governor as a policy wonk who retreats to the solitude of his office with stacks of paper to read background on pending proposals. But he hasn’t taken the same interest in crafting and pushing his own bills through the Legislature. A 2019 law to create a multibillion-dollar fund for Pacific Gas & Electric Co. and the state’s other investor-owned utilities to pay for wildfire damages is among the few examples.

Ting said the governor and his staff are still developing relationships with lawmakers. He expects Newsom’s influence to grow.

“The governor’s endorsement without the full weight of his office, his participation, is definitely not enough on issues such as these,” Ting said. “I think he and his staff are still really determining what that means, ‘the full weight of his office.’”

When told at a recent news conference that lawmakers said they believe he would need to do more than offer his endorsement and asked how involved he plans to be in the fracking fight, Newsom gave a curt, three-word answer.

“Very,” the governor said. “Thank you.”