26 Cal. App. 5th 161
Cal. Ct. App. 5th2018Background
- California's Division of Oil, Gas, and Geothermal Resources (the Department) obtained SDWA primacy for Class II (oil & gas) underground injection control (UIC) in 1983; a 1982 Memorandum of Agreement (MOA) with EPA is part of the state UIC program.
- Between 2011–2014 the Department discovered it had issued permits authorizing injections into numerous aquifers (including eleven ambiguously exempted aquifers) that likely met the federal definition of nonexempt underground sources of drinking water (USDWs).
- EPA and the Department developed and EPA approved a "corrective action plan" (March 2015) prioritizing review of wells, ordering immediate cessation only where injection potentially impacted water supply wells, and allowing temporary continued injection while operators sought aquifer exemptions; deadlines ranged through Feb 2017.
- Appellant Center for Biological Diversity sought a writ of mandate and declaratory relief directing immediate closure of wells injecting into nonexempt aquifers; trial court denied relief and judgment was appealed.
- The appellate court found the appeal not moot (injections continued past Feb 2017 in limited circumstances) and considered whether the SDWA, federal regulations, or the MOA imposed a mandatory duty requiring immediate cessation of all such injections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SDWA/regulations create a mandatory duty to immediately cease injections into nonexempt aquifers | SDWA and 40 C.F.R. require protection of USDWs; Department must immediately stop injections that could endanger drinking water | Statute/regulations impose duties but leave method and timing to agency discretion; corrective action plan reasonably exercises that discretion | The SDWA/regulations do not mandate immediate cessation; Department permissibly exercised discretion via corrective action plan |
| Whether a writ of mandate can compel a specific remedial method (immediate cessation) | Mandamus should issue because the statutory protection duty is mandatory and the Department failed to act immediately | Mandamus cannot force an agency to exercise discretion in a particular manner when agency has acted reasonably | Mandamus not available to control discretionary choice; Department's discretionary, fact‑based response was lawful |
| Whether the MOA independently requires injections to cease absent EPA exemption | MOA states aquifer exemption must be in effect prior to or concurrent with permit issuance, so injections into nonexempt aquifers are prohibited and must stop | MOA is part of the state UIC program but EPA approved a nonsubstantial program revision (the corrective action plan) temporarily suspending that bar in limited circumstances | MOA is part of the program but EPA-approved nonsubstantial revision authorized limited, temporary exception; MOA does not entitle plaintiff to immediate cessation writ |
| Whether the corrective action plan constituted an unauthorized change to the approved UIC program | Plaintiff: plan was not a formal program revision and cannot override MOA; Department noncompliant if injections continued past deadlines | Respondents: EPA solicited and approved the state's program revision plan by correspondence; nonsubstantial revisions need not follow formal rulemaking/publication | Court concluded EPA-approved corrective action plan amounted to a nonsubstantial program revision and authorized the limited approach used by the Department |
Key Cases Cited
- U.S. v. King, 660 F.3d 1071 (9th Cir. 2011) (explains SDWA is preventive and protects USDWs)
- AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, 197 Cal.App.4th 693 (2011) (agency may have a mandatory duty to act but retains discretion on means)
- Marquez v. State Dept. of Health Care Services, 240 Cal.App.4th 87 (2015) (mandamus may not compel agency to exercise discretion in a particular manner)
- HRI, Inc. v. E.P.A., 198 F.3d 1224 (10th Cir. 2000) (agency letters can effect nonsubstantial UIC program revisions)
- In re Zeth S., 31 Cal.4th 396 (2003) (appellate factfinding is limited; extraordinary circumstances required to admit new evidence on appeal)
- Association of California Ins. v. Jones, 2 Cal.5th 376 (2017) (courts give weight to administrative agency statutory constructions)