Kern County’s Self Imposed Deja-vu

Kern County’s bid to prop up the dying California oil industry has now failed for the second time in a row. Yesterday, the Court of Appeal sent the County’s lax ordinance governing oil drilling back to the drawing board, again, for failure to comply with the California Environmental Quality Act (CEQA), the statute that requires government agencies to take a close look at how their actions affect the environment and public health before committing to them. It’s a victory for the public and a self-imposed case of déjà vu for the County, which already had the ordinance bounced back to it by the Court in 2020 for the same reason. 

From its inception, the ordinance has been a terrible idea. Generated at the behest of the oil industry, the concept was for the County to collectively review under CEQA the impact of all future oil well drilling in one fell swoop, an exercise that’s a setup for the County glossing over major environmental harm from oil drilling. 

And gloss it did. The petitioners in the case – community groups, environmental organizations, and a farmer – first challenged the ordinance when it was promulgated in 2015, citing among other things the County’s failure to adequately address water supply, air quality, agriculture, and noise impacts. The Court of Appeals agreed, and ordered the County to go back and start over again with the ordinance and CEQA analysis. The court also noted that the County appeared to have written up the conclusions of its health risk assessment study before actually completing the study, an approach the court did not chalk up to clairvoyance. 

This courtroom defeat was the County’s opportunity to get it right on the second try – which it proceeded not to take. Rather than digging deep to fix the very real concerns about environmental and public health that petitioners and the court had identified, the County got to work thinly papering over the issues, culminating in issuance of an essentially unchanged ordinance accompanied by some very modest changes to the CEQA analysis. After eagerly starting to issue drilling permits again, the County was twice ordered by courts to hold off pending completion of judicial review.  

The Court of Appeal decision yesterday was the culmination of that review. It identified multiple significant problems that the County had failed to address on its second pass. Specifically, it held:

• The County’s health risk assessment study (the one whose result the County had earlier mysteriously predicted before it was finished) failed to actually evaluate the impact of the drilling practices the ordinance allows. While the ordinance permits drilling within 210 feet from people’s homes, the study was looking only at risks 1,000 feet or further away.
• The County had failed to adequately look at the oil industry’s heavy use of water, which is expected to lower groundwater levels across the County – with particular impact on water supply in the County’s disadvantaged communities. The Court made clear that that the County was charged with thinking through the significance of impacts of that nature for people living in those communities.   
• The County had improperly dismissed the possibility of using agricultural conservation easements to mitigate the impact of the oil industry’s conversion of farmland into oil fields. 

The decision was not an across-the-board win for petitioners – which is no particular surprise given the scope of issues raised. The court sided with the County on several other issues, including a technical question about the enforceability of an air quality mitigation measure, and a question whether the court needed to consider new information that emerged recently regarding an endangered species likely to be affected by drilling. Regardless, however, the County is now tasked with a full turnaround on key aspects of the ordinance and accompanying CEQA analysis. And it will not be done until the public has a chance to comment on the revised documents and the County responds to those comments; and the County's proposed fixes pass muster with the reviewing court.

The County complained incessantly in its court arguments about how long the court process was taking. It’s become quite clear from the court’s decision that the delays were entirely of the County’s own making. And that if the County does not get the message delivered by the court, the third time will not be a charm. We hope, against past evidence to the contrary, that the County will take its CEQA responsibilities seriously this time around.