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California’s top court takes up Monterey measure to halt new oil drilling

The backers of Measure Z continued to fight for the restrictions on new drilling after Monterey County settled with the oil industry in 2018.

(CN) — Supporters of a Monterey County measure to prevent drilling of new oil and gas wells in unincorporated parts of the Central California county went before the state's highest court in a last bid to salvage the ordinance that voters had approved in 2016.

The California Supreme Court on Thursday heard arguments by Protect Monterey County to reverse an appellate court's finding that Measure Z was preempted by California state law regulations of drilling operations. The appellate court affirmed the verdict by a trial judge who had also concluded that the county couldn't step into the shoes of the state when it came to how, as opposed to where, oil and gas extraction is done.

The ballot initiative, which also banned fracking in the county, was challenged by a consortium of oil companies. Since there was no fracking at all in Monterey County, that part of Measure Z survived their challenge. The two other components, however — a prohibition on land use in support of new oil and gas wells and a phased-in prohibition on wastewater being injected into the ground to extract oil — were found to be into conflict with the state's authority.

Monterey County settled with the oil companies in 2018 after the fracking ban was upheld, leaving Protect Monterey County, the official proponent of the 2016 Measure Z initiative, fighting the oil industry to resurrect the invalidated portions of their efforts to curtail oil and gas exploration.

“Voters were loud and clear that we want to move Monterey County away from dirty fossil fuels and toward a healthy future,” Laura Solorio, a Measure Z backer and an intervenor in the case, said in a statement Wednesday. “Enough with the oil industry lawsuits standing between us and our right to a clean community.”

Kevin Bundy, the attorney arguing for Protect Monterey County, argued at Thursday's hearing that the appellate court's ruling that most of Measure Z was preempted by state law had shattered the balance between local and state authority to regulate oil and gas exploration at a local level.

Noting that cities in California have historically been able to prohibit local oil and gas drilling within their jurisdiction and that the state Legislature has acknowledged this authority, Bundy said the industry was now trying to overturn this well established sharing of power.

"If that is what they want, they should ask the Legislature, not this court," Bundy told the justices.

Both Associate Justice Martin Jenkins and Associate Justice Joshua Groban were skeptical, though, that the two invalidated components of Measure Z didn't contradict the state's regulatory authority because it wouldn't leave the state supervisor with any choice when it came to allowing, for example, injecting ground water into wells to extract the oil.

"What does this leave to the discretion of the supervisor with respect to this method of carbon extraction?" Jenkins asked. "It's off the table."

Bundy countered that there would be plenty of other issues for the state supervisor of drilling activity to weigh in on, such as technical questions pertaining to the materials and pressure used to operate the wells.

Ted Boutrous Jr., representing Chevron and the other oil companies that challenged Measure Z, called it an extraordinary and unique prohibition on activity that the state has expressly allowed. The state mandates that the supervisor, Boutrous argued, permits drilling activity that's industrially sound as part of its energy policy.

The issue of injecting wastewater in the form of steam in the wells wasn't an abstract concern, he said, because the San Ardo Oil Field in Monterey County, co-operated by Chevron and one of the larger oil fields in California, has been using this technology because that's the only way to extract the oil, which, much like ketchup, is viscous and won't flow easily under normal conditions.

"Measure Z went too far," Boutrous said. "It's not just a zoning ordinance, but an attempt to suffocate oil and gas production under the guise of an anti-fracking ordinance."

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