Local Anti-Fracking Ordinances

Advocates for the Environment assists California cities and counties in developing and enacting ordinances restricting fracking, such as:

• prohibitions on oil and gas production
• moratoria on oil and gas production
• moratoria or prohibitions of fracking and other environmentally hazardous well-stimulation techniques
• local regulations of oil production or fracking

We also advise public-interest groups who seek enactment of ordinances like these.

Enacting Local Ordinances

There are two ways to enact these ordinances:

• by vote of the city council or county board of supervisors
• by ballot initiative

If it is politically feasible, enactment by the city council or board of supervisors can bepreferable, since it is simpler and less costly. But the ordinance can be easily repealed by the local legislative body.

Ballot initiatives, if initiated by the public (they can also be initiated by the city council or board of supervisors) require petitions signed by 10% of the voters in the city or county. Gathering these signaturs can be labor-intensive or expensive (if paid signature gatherers are used) in large jurisdictions such as San Francisco or Los Angeles. But in a small city or county it can be feasible.

Legal Challenges to Anti-Fracking Ordinances

A local anti-fracking ordinance should be drafted to withstand anticipated legal challenges, since oil and gas interests are likely to sue to have the ordinance invalidated. Potential legal attacks may be based on:

• State-law preemption. Oil and gas operators argue that state law completely preempts local laws regulating oil and gas production, so cities and counties may not regulate in this area. But cities and counties have authority to regulate local land use, including the use of land for oil and gas production.
• Takings. Under the Fifth Amendment to the U.S. Constitution, private property may be taken for public use only when the property owner is fairly compensated. Owners of active oil wells have vested interests that may be taken for public use if a local ordinance summarily shuts down production. In some cases, a takings claim may be avoided by allowing producers to phase out over a reasonable period of time.

Anti-Fracking Ordinance Examples

Several California cities and counties have banned oil production or fracking, including the following:

• San Benito County: Their ordinance, adopted by initiative in 2014, bans "Well Stimulation Treatments" and "Enhanced Recovery Wells" in unincorporated areas of the county, and bans petroleum operations altogether in residential zones. It does this by changing the general plan and the County Code. To avoid takings, the ordinance allows a one-year amortization period to end prohibited operations, and does not end vested rights to conventional oil production. It also allows the County Supervisors to grant an exemption when the owner of a vested right proves that application of the ordinance to the property in question would constitute an unconstitutional taking.
• Santa Barbara County: Their anti-fracking ordinance did not receive enough votes in the November 2014 election to be enacted. It is conceptually very similar to the San Benito ordinance, though it is much longer, because more portions of the County General Plan needed to be amended.
• The Mendocino County Community Bill of Rights Fracking and Water Use Initiative is the only CELDF-type ordinance passed so far in California. CELDF (Community Environmental Legal Defense Fund) ordinances purport to establish local rights to self-government, to clean water, clean air, and freedom from chemical trespass. They also purport to establish legal rights for natural communities and ecosystems. It is unlikely that an ordinance like this would stand up to a legal challenge.

Advocates for the Environment Can Help

We can help draft anti-fracking ordinances that have the most likelihood of surviving legal challenges, and can defend them in court.