Appellate ruling orders revisions to Kern’s oil permitting ordinance
A far-reaching appellate ruling released Thursday will require Kern County staff to make substantial changes to a landmark environmental review, then readopt a controversial zoning ordinance, if it hopes to reassert local control of oil and gas permitting.
The 5th District Court of Appeal in Fresno found the county had failed to follow the California Environmental Quality Act with regard to setbacks, ag easements and groundwater impacts, even as it prevailed on other points against plaintiffs representing environmental groups and a local farming operation.
Thursday’s 106-page judgment had been highly anticipated by local oil producers because drilling has all but dried up in Kern since the court ordered county government to stop approving permits in January 2023 pending full consideration of the plaintiff’s appeal of a local court ruling favorable to the industry. State permitting continues but only very slowly in the case of drilling reviews.
Expectations are that the county’s permitting effort, bankrolled by the state’s oil industry for more than a decade, will push forward with revisions to the massive environmental review. But the review’s architect, Director Lorelei Oviatt of the Planning and Natural Resources Department, estimated the changes will take no less than 10 or 11 months — and she said they won’t be easy.
“The solution will be more complicated this time,” she said Thursday.
Representatives of the plaintiffs lauded a decision they said shows the county went too far in accommodating oil producers at the expense of residents and the local environment. Some vowed to continue fighting the county’s efforts to establish an over-thecounter permitting system.
“This is a victory for all the farmers and residents of Kern County,” Shafter-area farmer and plaintiff Keith Gardiner said in a
news release. “County officials have a responsibility to protect our incredibly valuable Central Valley farmland, not just the economic interests of the oil industry.”
CEO Rock Zierman of the California Independent Petroleum Association, which has sponsored the county’s environmental review work, expressed disappointment the court did not issue a more narrow ruling that would have allowed the majority of well permits unaffected by problems identified by the court to proceed.
“As a result, California is going to continue to increase its dependence on imported foreign crude rather than energy produced by Kern citizens,” he said by email.
Probably the most impactful aspect of the 5th District’s ruling, Oviatt said, was its finding that the county had not done enough to assess the health impacts of drilling as close as 210 feet from a home or 300 feet from a school. Instead, much of the county’s assessment looked at drilling’s environmental effects from a distance of 1,000 feet or further.
The ag easement issue, on which the county also lost, centered on whether such conservation measures properly mitigate the conversion of ag property lost to oil field activity. The court found that although easements don’t replace ag land, they do qualify as compensatory mitigation.
“This appellate ruling establishes important legal precedent, confirming that agricultural conservation easements can further reduce impacts on farmland where other measures don’t completely eliminate impacts,” Gardiner’s attorney, Kevin P. Bundy, said in a news release.
Another point on which the plaintiff-appellants won relates to evaluating and addressing impacts the oil industry’s water use have on groundwater levels affecting poor, disadvantaged communities.
Thursday’s ruling states, “While social and economic effects are not themselves environmental impacts, social and economic effects are relevant in determining the significance of a physical change to the conditions constituting the environment.”
The county won in three areas. The court ruled the plaintiffs had failed to show the county made a prejudicial error involving air quality mitigation measures addressing particulate air pollution, impacts on the Temblor legless lizard and the absence of Spanish language translation of materials related to the environmental review.
County government issued a statement saying its staff and counsel are reviewing the decision and discussing next steps. It noted the county was pleased to have prevailed on the question related to particulate air pollution. “As always, our Kern County Board of Supervisors continues to support our oil industry and environmentally protective oil and gas permitting as part of the energy future of not only Kern County, but California at large,” it stated.
President Anabel Marquez of Committee for a Better Shafter vowed to continue fighting whatever the county comes up with next, saying in a news release, “The codependence between Kern and the oil and gas industry may persist in other ways, but we will continue to be thorns in their sides, fighting for clean air, water and land that we deserve.”