In a standing-room-only courtroom packed with about 20 attorneys, the first shots were fired Nov. 13 in the trial over Measure Z, a case that is being watched across the country as potentially setting a precedent.
The 2016 countywide ballot initiative – which calls for a ban on fracking, new oil wells and a phaseout of wastewater injection in the county – is being challenged by six sets of plaintiffs, the largest being Chevron and Aera Energy, the two biggest operators in the San Ardo oil field, the eighth most productive oil field in the state.
The first phase of the trial is addressing the fundamental question of how the measure should be legally interpreted, and if, on its face, it’s legally valid.
Over the course of the first phase of the trial, attorneys will litigate various facets of those fundamental questions, including whether or not regulating oil operations is preempted by federal and state law – which would mean Monterey County can’t regulate it – and whether or not the measure calls for an unconstitutional taking of private property.
The preemption question was a primary focus Nov. 13. Chevron’s attorney Theodore Boutros Jr. argued the federal Safe Drinking Water Act and various state agencies create a “complex interlocking web of state and federal regulations” that preempt Measure Z.
In particular, he said that California’s Division of Oil, Gas and Geothermal Resources (DOGGR) has a staff of about 200 employees whose express purpose is to regulate subsurface oil production activities in the state.
“It is an expert agency,” Boutros said of DOGGR. “Measure Z seeks to transform the county into an expert on oil activities, but it doesn’t have the staff and scientists.”
Monterey County, the named defendant, hired outside counsel led by attorney Gene Tanaka, who said initiatives are the core of democratic principles. He began his arguments by giving the county’s interpretation of Measure Z.
Tanaka said the measure doesn’t ban new wells per se – the county’s interpretation was that the measure’s ban on new wells just means the total number of wells couldn’t be increased.
Monterey County Superior Court Judge Thomas Wills said it’s in the best interest of the county to interpret the measure as permissively as possible to minimize the county’s litigation exposure going forward. He grilled Tanaka as to how steam flooding – the process by which oil is extracted in San Ardo fields, by injecting heated wastewater to make the oil less viscous – does not qualify as wastewater disposal or storage, which are banned in the measure.
Savannah Baker from Stanford’s Environmental Law Clinic, who represented Protect Monterey County – the group that petitioned for Measure Z – differed from Tanaka. She argued Measure Z does prohibit new wells.
After the trial wraps up, which is expected to last about a week, Wills will have up to 90 days to make to a ruling.
UPDATE (3pm 11/16/17): The trial ended this afternoon, and Judge Wills indicated told the courtroom he would be ruling quickly on the matter. Attorney David Balch, who represents one of the sets of plaintiffs, says he thinks that means Wills will probably rule on the case by mid-December.