Oil ruling finds fault with Kern’s permitting review
A court ruling handed down Tuesday in the high-stakes lawsuit over local oil permitting dealt partial defeat to both sides, dismissing several arguments made by opponents of Kern’s system but appearing to find that county government must fix its massive environmental review before continuing to issue drilling permits.
Tuesday’s ruling by Kern County Superior Court Judge Gregory Pulskamp upheld the county’s revised environmental review in several key areas but found that, with respect to deficiencies including air pollution mitigation and the document’s “statement of overriding consideration,” the county has not fully complied with the California Environmental Quality Act.
The 6-year-old case has been followed closely by environmentalists and the petroleum industry alike because it will determine whether oil companies can simply go to the county and pay fees in exchange for permits, as they did before the court’s intervention, or whether each individual permit request calls for a separate environmental assessment.
County officials and industry representatives indicated they were unable to comment on Tuesday’s 41-page ruling, saying they were still reviewing the document.
Meanwhile, a coalition of environmental groups, joined by a local farmer, interpreted Tuesday’s ruling as a defeat for the county.
“Maybe two rounds of having their shoddy environmental review smacked down by courts will be sufficient to persuade the county to start treating CEQA as the essential public protection that it is, rather than an annoying obstacle to unchecked oil drilling,” Ann Alexander, a senior attorney with the Natural Resources
Defense Council, said in a news release.
The county’s expectation has long been that the environmental review would be refined over time until the document passes legal muster. Figuring that would take years, it secured an indemnity agreement so that the industry would cover its legal costs.
Lawsuits filed by almond grower Keith Gardiner, a local oil producer and several environmental groups, greeted the county’s original approval of the environmental assessment in 2015.
The county initially prevailed in court but, on appeal, was ordered in early 2020 to stop issuing permits until it had fully addressed faults in the document. Last year the county made changes, approved them and resumed permitting — until October, when Pulskamp ordered a halt to permitting until legal proceedings could determine whether the county’s changes were sufficient.
Lawyers representing both sides presented their arguments in court on May 26. Tuesday’s ruling declared who won, on what points, and who lost.
Pulskamp’s ruling indicated the county won on the question of whether Kern should have to require farmland conservation easements to make up for the projected loss of 298 acres per year under the county system. The judge did not require that type of mitigation.
On the question of whether the county’s multiwell health risk assessment is legally adequate, Pulskamp ruled that despite its opponents’ assertions, the county need not assume a worst-case scenario, handing the county another win.
In other victories for the county, the judge wrote that Kern’s use of two different measures of noise was rational and supported by substantial evidence, and that the county’s analysis of information relating to the Temblor legless lizard did not violate CEQA.
There were mixed decisions on some topics. Although the judge found fault with the county’s rejection of a proposal to withhold permits from oil companies until they remove their idle equipment on farmland elsewhere, Pulskamp upheld Kern’s decision not to charge certain fees or require soil-restoration work.
The judge dismissed an Arvin activist group’s argument that the industry should not be able to use potable water for oil recovery. But he found the county’s latest review must do a better job analyzing its permitting system’s impacts on poor or disadvantaged communities.
Tuesday’s ruling also handed the county defeat in the area of air pollution — Pulskamp found Kern had committed a “prejudicial error” by conflating two different types of fine particulates — and said the county’s statement of overriding considerations was inadequate in that it failed to properly address certain mitigation measures.
A case management conference has been set for 8:30 a.m. July 14.