Kern County Judge Tentatively Rules California's Fracking Ban Invalid, Citing Skipped Rulemaking

A Kern County judge has tentatively ruled that California's ban on hydraulic fracturing was imposed illegally. Judge Bernard C. Barmann Jr. issued the preliminary decision on Thursday, Oct. 8, 2026, in consolidated lawsuits brought by Chevron U.S.A., Aera Energy LLC and the Western States Petroleum Association.

It is not final. If it holds, it would undo one of the Newsom administration's signature climate policies.

What the judge found

Barmann 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."

He also found the permit denials, most of them for Kern County wells and dating from 2021 to 2024, "arbitrary and unsupported because they rested on a climate-change rationale that was not in fact the operative basis for the ban."

The state's own record undercut that rationale, the judge wrote. The rulemaking record does not address a prior finding by the state's oil regulator, the California Geologic Energy Management Division (CalGEM), that a ban would increase net global greenhouse gas emissions. The reason is that oil would have to be imported to replace California production.

Barmann wrote that the agency's determination that a categorical ban is reasonably necessary to cut emissions "is not supported by substantial evidence and lacks a rational connection to that purpose." He also faulted the agency for not establishing a rational, evidence-based link between the harms it identified and a statewide categorical prohibition, as opposed to regulating or denying particular treatments.

The ruling also criticizes the state for repeatedly and unequivocally denying that it had imposed a categorical policy.

How the ban came about

The ban did not come from the Legislature. Gov. Gavin Newsom ordered the phase-out in April 2021, and CalGEM began denying fracking permits without citing technical problems. A primary justification the agency eventually gave was global warming. In 2024 the administration formalized the phase-out in a regulation.

WSPA sued in 2021, with Chevron and Aera filing similar suits that were consolidated. A bench trial lasting nearly a month ended in February.

What the tentative ruling does not do

The judge did not hand industry a clean win. He rejected some of its legal claims and declined to order the state to approve any permits. He proposed sending the denied applications back for formal review.

He also refused to act against Newsom personally, saying the governor "has no ministerial duty to compel and is not a proper respondent." He proposed annulling the 2024 rule rather than returning it to the state to fix.

Local bans are unaffected. Los Angeles, Alameda, Monterey and San Benito counties can still rely on their own prohibitions. Virtually all California fracking has taken place in Kern County.

The two sides

Industry welcomed the decision. "California needs oil. Every barrel we don't produce here, we have to import from somewhere else," WSPA said in a statement, calling it a "common-sense decision." The group said applications "should be evaluated on their merits, not blocked with a blanket denial based on politics."

Kassie Siegel, director of the Climate Law Institute at the Center for Biological Diversity, said the opposite. "If this tentative decision is finalized, it'll put fracking pollution back on the table five years after it should've ended," she said. She called the ban "one of the most important health and environmental achievements in California's history" and said it is "backed by strong science." Her group says fracking harms health, air, water and wildlife and can cause earthquakes. It urged the state to appeal immediately if the ruling is finalized.

Other environmental advocates say the practical effect may be narrower. Cesar Aguirre of the Central California Environmental Justice Network pointed to last year's SB 237, which he said already authorizes up to 2,000 new drilling permits without lifting the fracking ban. He said the ruling would mainly help companies squeeze more oil from aging wells.

The Center for Biological Diversity, citing state estimates, says the ban applies to only 0.4% of California's annual oil and gas production.

Chad Hathaway, CEO of Hathaway Oil, told KGET that Kern County's diatomite formation holds up to one billion barrels that cannot be recovered without fracturing the tight rock. That figure is his estimate, and the ruling itself does not address it.

What comes next

Plaintiffs and other parties were given 10 days to raise additional issues. A final decision is usually issued within about 50 days of a tentative order, which points to late November.

The Newsom administration has not announced whether it will appeal. Any appeal would extend a fight that has already run five years, and the judge's ruling turns on how the state made the rule, not on whether fracking is safe. The open question is whether the state, if it wants a ban, will try to rebuild one through formal rulemaking with an evidentiary record it did not have the first time.