Kern County judge rips California over ‘invalid’ fracking ban

The judge was sharply critical of the state for spending years denying it had what he called an "invalid underground regulation."(CN) — A Superior Court judge in Kern County has issued a tentative order that, if made final, could have the effect of striking down California’s ban on drilling for oil using hydraulic fracturing, commonly known as fracking.In his tentative ruling, Judge Bernard Barmann Jr. called the blanket ban on well stimulation treatments, including fracking, an “invalid underground regulation” that was “adopted without the rulemaking the Administrative Procedure Act requires.”“The permit denials were arbitrary and unsupported because they rested on a climate-change rationale that was not in fact the operative basis for the ban,” Barmann wrote. He added that a state agency’s “determination that a categorical ban is reasonably necessary to reduce greenhouse gas emissions is not supported by substantial evidence and lacks a rational connection to that purpose,” pointing to the agency’s own finding that the ban would increase net global greenhouse gas emissions, because oil would have to be imported into the state.Environmental groups decried the tentative ruling and urged the state to appeal if it becomes final. Local governments would still have the power to enact their own bans, as many have, including Los Angeles and Alameda counties.“If this tentative decision is finalized, it’ll put fracking pollution back on the table five years after it should’ve ended,” said Kassie Siegel of the Center for Biological Diversity. “Gov. Newsom’s fracking ban is one of the most important health and environmental achievements in California’s history and it’s backed by strong science."Jim Stanley, a spokesman for the Western States Petroleum Association, praised the tentative as a “common-sense decision,” writing in a statement: “California needs oil. Every barrel we don’t produce here, we have to import from somewhere else. Well stimulation is a longstanding practice to safely produce additional oil from new and existing wells.” Applications, he added, “should be evaluated on their merits, not blocked with a blanket denial based on politics.”The Western States Petroleum Association, which represents oil companies, sued the state over the 2021 fracking ban. Chevron and oil and gas extraction company Aera Energy filed similar lawsuits, which were consolidated into one case. A nearly monthlong bench trial ended in February.In his tentative ruling, Judge Barmann was sharply critical of the state for “repeatedly and unequivocally” denying that the state’s Geologic Energy Management division had “implemented a categorical policy against approval of permits for well stimulation treatments. Barmann wrote that the state had gone so far as to deny “the policy in verified discovery responses” and told the court, “there is no ban… all we have in this case is hyperbole and speculation.”Only after two years of litigation did the Geologic Energy Management division finally admit that it did have a “policy of denying new [well stimulation treatment] permits beginning in July 2021,” which wasn’t adopted through the normal rule-making process.Barmann even chided the governor himself, writing, “In sworn answers… the Governor denied personally directing the denial of permits but acknowledged that his staff ‘did give guidance or direction along those lines to Cal GEM in June or July 2021,’ and that it was ’likely’ those plans ‘were flagged for’ him at the time.”He also cited a quote Newsom gave in a 2019 interview, in which he denied having the power to unilaterally impose a fracking moratorium, in which he said, “You can’t do that unilaterally. Legally, you cannot. The governor of California cannot do that.”The parties will have an opportunity to comment on the tentative ruling before the judge makes his final decision.If the tentative ruling holds, it would send several applications back to the Geologic Energy Management Division for individual review. It would also invalidate the policy of blanket denials, at least without a more thorough rulemaking process.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads