Kern County Judge: Tentative Ruling Invalidates California Fracking Ban

• A Kern County judge issued a tentative ruling that could overturn California's ban on fracking and well stimulation treatments.
• Judge Bernard Barmann Jr. found the ban to be an "invalid underground regulation" implemented without proper adherence to the Administrative Procedure Act.
• The ruling criticized the state for denying the existence of a categorical permit denial policy for two years during litigation.
• The state's 2021 directive, issued by Governor Newsom, ordered CalGEM to deny fracking permits, aiming for a phase-out by 2024.
• Environmental groups oppose the ruling, while the Western States Petroleum Association supports it, citing the need for domestic oil production.

Judge Bernard Barmann Jr. characterized the statewide ban on well stimulation treatments as an "invalid underground regulation," asserting it was implemented without adhering to the procedural requirements of the Administrative Procedure Act.

A Kern County Superior Court judge has issued a preliminary order that could invalidate California's de facto prohibition on hydraulic fracturing, commonly known as fracking. Judge Bernard Barmann Jr. characterized the statewide ban on well stimulation treatments as an "invalid underground regulation," asserting it was implemented without adhering to the procedural requirements of the Administrative Procedure Act. This tentative ruling, if finalized, would challenge the state's approach to regulating oil and gas extraction.

The judge's decision stems from a lawsuit initiated by the Western States Petroleum Association, along with Chevron and Aera Energy, against the state. These consolidated cases contested a 2021 directive from Governor Gavin Newsom. This directive instructed the California Department of Conservation’s Geologic Energy Management (CalGEM) to deny permits for hydraulic fracturing, aiming to phase out the practice by 2024. A bench trial spanning nearly a month concluded in February, preceding Judge Barmann's critical assessment of the state's actions.

Judge Barmann's tentative ruling highlighted significant procedural flaws in the state's implementation of the California fracking ban. He found that the permit denials were "arbitrary and unsupported," arguing they were based on a climate-change rationale that was not the true operational basis for the prohibition. Furthermore, the judge stated that CalGEM's determination that a categorical ban was necessary to reduce greenhouse gas emissions lacked substantial evidence and a rational connection to that objective. He pointed to the agency's own findings, which indicated that such a ban would likely increase net global greenhouse gas emissions due to the necessity of importing oil into California.

The court was particularly critical of the state's repeated denials regarding the existence of a categorical policy against approving California well stimulation treatment permits. Judge Barmann noted that the state had denied this policy in verified discovery responses and even asserted in court that "there is no ban." It was only after two years of litigation that the California Geologic Energy Management division finally conceded to having a "policy of denying new [well stimulation treatment] permits beginning in July 2021," a policy that had not undergone the required rule-making process under the California Administrative Procedure Act. The judge also admonished Governor Newsom for denying, in sworn answers, that he personally directed the denial of permits, a key aspect of the Newsom fracking directive challenge.

The potential invalidation of California's fracking ban carries significant implications for the state's energy policy and regulatory framework. Environmental advocacy groups have strongly condemned the tentative ruling, urging the state to appeal should it become final. Kassie Siegel of the Center for Biological Diversity emphasized the importance of Governor Newsom’s fracking ban as a major health and environmental achievement, supported by robust scientific evidence, and warned that finalizing this decision would reintroduce fracking pollution.

Conversely, industry representatives have welcomed the Kern County judge tentative ruling California fracking ban. Jim Stanley, a spokesperson for the Western States Petroleum Association, lauded it as a "common-sense decision," asserting that California requires domestic oil production to avoid increased imports. He argued that well stimulation is a safe, long-standing practice and that permit applications should be evaluated on their individual merits rather than being subjected to a blanket political denial. While a statewide ban could be overturned, local jurisdictions like Los Angeles and Alameda counties would retain the authority to enact their own prohibitions. This ruling also underscores the broader context of California's ambitious environmental goals, including plans to eliminate all oil extraction by 2045 and mandate zero-emission vehicles by 2035.

Lawyers advising oil and gas companies in California should closely monitor the finalization of this tentative ruling, as it could invalidate the state's de facto fracking ban and reopen opportunities for well stimulation treatment permits. It also serves as a critical reminder for compliance officers regarding the procedural requirements of the Administrative Procedure Act for state agency regulations.

Source: Original reporting via Courthouse News Service