Sierra Club v. Chesapeake Operating LLC et al is news more shocking than “Man Bites Dog”! A federal court has acknowledged that others are better equipped to address certain issues than the judiciary!
Sierra Club alleged that that deep injection of liquid waste from operations by Chesapeake, Devon and New Dominion has contributed to earthquakes throughout Oklahoma and southern Kansas. Sierra asserted that waste disposal activities present an imminent and substantial endangerment to the public health or environment. This was a citizen suit under the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act.
There is reason to be concerned
Sierra Club alleged:
- Earthquakes in Oklahoma increased more than 300-fold from before 2009 to 2015, from 167 to 5,838.
- The severity has increased.
- Seismologists say a magnitude 7 quake is possible in the Nehama fault.
- Earthquake risks in Oklahoma are now the highest in the nation.
What the parties wanted
Sierra Club wanted an order requiring defendants to:
- Reduce “immediately and substantially” the amount of wastes injected into the ground,
- Reinforce vulnerable structures that would be impacted by a large magnitude earthquakes, and
- Establish independent earthquake monitoring and prediction.
The defendants urged the court to:
- Allow the Oklahoma Corporation Commission to take action in response to increased seismicity in the state.
- Dismiss, because Sierra did not join every company that disposes of liquid wastes, and
- Dismiss, because the claims fall outside the “zone of interests” Congress intended to protect under RCRA.
The court sided with the defendants, concluding that dismissal is appropriate under the Burford abstention and primary jurisdiction doctrines. Here’s why:
- In 1981 the EPA gave primary enforcement responsibility for underground injection control to the state of Oklahoma.
- Oklahoma vests that authority in the Oklahoma Corporation Commission.
- The OCC exercises exclusive jurisdiction over injections wells.
- The OCC has an extensive regulatory structure in place for injection well control.
Abstention doctrines explained
The Burford abstention doctrine says that where timely and adequate state court review is available a federal court must decline to interfere with the state agencies where there are difficult questions of state law whose importance transcends the results in the case at bar and where exercise of federal review of the question would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.
Oklahoma has established and is operating its own program to regulate wells, OCC oversight encompasses more wells than just those operated by these defendants, the issue is one of substantial public concern, and timely and adequate state court review is available to the plaintiff.
The primary jurisdiction doctrine protects the administrative process from judicial interference, and it applies here. The court should refer issues not within its conventional experience to the administrative agency having more specialized experience, expertise and insight.
Why is this a big deal?
Essentially, the court recognized that highly complex and technical issues should not be regulated by the courts. This presents fundamental differences between courts and regulatory agencies: The OCC is equipped as a regulatory body to apply continuous, persistent and flexible regulatory power, which the court can’t do. Immediate and substantial reduction in wastewater requires specific scientific and technical expertise, which the OCC has and the court doesn’t.