The opinion
Filed 2/25/20
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
KING AND GARDINER FARMS, LLC,
F077656
Plaintiff and Appellant,
(Super. Ct. No. BCV-15-101666)
v.
COUNTY OF KERN et al.,
Defendants and Respondents;
OPINION
CALIFORNIA INDEPENDENT PETROLEUM
ASSOCIATION et al.,
Real Parties in Interest and Respondents.
COMMITTEE FOR A BETTER ARVIN et al.,
Plaintiffs and Appellants,
(Super Ct. No. BCV-15-101679)
v.
COUNTY OF KERN et al.,
Defendants and Respondents;
CALIFORNIA INDEPENDENT PETROLEUM
ASSOCIATION et al.,
Real Parties in Interest and Respondents.
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts V., VII., IX., X., XI., XII.E.3. and
XII.G.
APPEAL from a judgment of the Superior Court of Kern County. Eric Bradshaw,
Judge.
Shute, Mihaly & Weinberger, Rachel B. Hooper, Heather M. Minner, Kevin P.
Bundy; and Daniel P. Selmi for Plaintiff and Appellant King and Gardiner Farms, LLC.
Earthjustice, Colin C. O’Brien, Byron Jia-Bao Chan; and Elizabeth Benson for
Plaintiff and Appellant Sierra Club.
Center on Race, Poverty & the Environment and Caroline Farrell for Plaintiffs and
Appellants Committee for a Better Arvin, Committee for a Better Shafter, and Greenfield
Walking Group.
Center for Biological Diversity, Hollin N. Kretzmann and Clare Lakewood for
Plaintiff and Appellant Center for Biological Diversity.
Margo A. Raison, County Counsel, Andrew C. Thomson, Deputy County
Counsel; Holland & Knight, Jennifer L. Hernandez, Bradley B. Brownlow, Marne S.
Sussman, Daniel R. Golub and Emily M. Lieban for Defendants and Respondents.
Pillsbury Winthrop Shaw Pittman, Margaret Rosegay, Norman F. Carlin and
Blaine I. Green for Real Party in Interest and Respondent Western States Petroleum
Association.
Manatt, Phelps & Phillips, Craig A. Moyer and Keli N. Osaki for Real Party in
Interest and Respondent California Independent Petroleum Association.
-ooOoo-
In November 2015, the Board of Supervisors (Board) of the County of Kern1
approved an ordinance to streamline the permitting process for new oil and gas wells and
1 The term “County” is used to refer to the governmental entity and “Kern County”
to refer to the geographical area. (See County of Kern v. T.C.E.F., Inc. (2016) 246
Cal.App.4th 301, 306, fn. 1; County Sanitation Dist. No. 2 v. County of Kern (2005) 127
Cal.App.4th 1544, 1557, fn. 1.)
2.
certified an environmental impact report (EIR) as compliant with the California
Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.).2 The
plaintiffs sued, alleging many CEQA violations. The trial court found the EIR
inadequately analyzed the project’s environmental impacts to rangeland and from a road
paving mitigation measure, and rejected the other CEQA claims. The plaintiffs appealed.
We conclude some of the other CEQA claims have merit.
The published parts of this opinion address CEQA violations involving water,
agricultural land, and noise. As to water supplies, the mitigation measures for the
project’s significant impacts to water supplies inappropriately deferred formulation of the
measures or delayed the actual implementation of the measures. Also, the EIR’s
disclosures about the mitigation measures were inadequate and, as a result, the adoption
of a statement of overriding considerations did not render harmless these failures to
comply with CEQA.
Also, the finding that the project’s conversion of agricultural land would be
mitigated to a less than significant level is not supported by substantial evidence. The
finding was based on the use of agricultural conservation easements, which do not
actually offset the conversion of farmland. Because the project’s conversion of
agricultural land would not have been reduced to a less than significant level, the EIR
should have addressed other proposed mitigation measures, including the clustering of
wells when feasible, for reducing the project’s conversion of agricultural land.
As to the project’s noise impacts, the County determined the significance of those
impacts based solely on whether the estimated ambient noise level with the project would
exceed the 65 decibels threshold set forth in the County’s general plan. Based on prior
case law, we conclude the magnitude of the noise increase must be addressed to
determine the significance of change in noise levels. Here, the EIR did not include an
2 All unlabeled statutory references are to the Public Resources Code.
3.
analysis, supported by substantial evidence, explaining why the magnitude of an increase
in ambient noise need not be addressed to determine the significance of the project’s
noise impact.
In the unpublished parts of this opinion, we conclude CEQA violations existed
with respect to air quality and related health risks. First, the EIR inadequately addressed
air quality impacts because it did not discuss the impact of a mitigation measure on fine
particulate matter (PM2.5) emissions or, alternatively, provide an explanation for why
there is no separate discussion of the measure’s impact on PM2.5 emissions. In addition,
the mitigation measure addressing particulate matter does not provide for enforceable
mitigation of PM2.5 emissions and the Board made no finding that mitigation of PM2.5
was not feasible.
Second, the Cumulative Health Risk Assessment constituted new information that
had been omitted from the draft EIR. In the context of this case, the new information was
significant because the draft EIR inadequately addressed the subject and there was no
meaningful public review and comment on the new assessment. Consequently, the
Cumulative Health Risk Assessment must be included in any revised EIR that is
recirculated to correct the other CEQA violations.
We also publish our discussion of the appropriate appellate relief for the CEQA
violations. We conclude the certification of the EIR and the approval of the new
ordinance must be set aside. The writ of mandate issued on remand shall set aside (i.e.,
invalidate) the ordinance as of 30 days from the date of this opinion. Thus, permits
issued before that date may remain in effect and oil and gas activities under those permits
may continue. In contrast, if any permit is issued after that date, the writ of mandate’s
invalidation of the ordinance also shall invalidate the permit retroactively. Thus, pending
CEQA compliance, the County will return to the regulatory scheme in place prior to the
ordinance’s adoption.
We therefore reverse the judgment and remand for further proceedings.
4.
FACTS
Project
Representatives of three oil and gas industry associations—Western States
Petroleum Association; California Independent Petroleum Association; and Independent
Oil Producers’ Agency (collectively, Oil Associations)—approached the County with a
proposal to amend the Kern County Zoning Ordinance to address local permitting for oil
and gas exploration, development and production activities. In January 2013, the Board
considered the proposal at a public meeting and directed the staff of the County’s
planning and community development department to proceed with processing the
requested amendments. The amendments included updated procedures, development
standards, and conditions for future oil and gas activities in unincorporated portions of
Kern County.
At the time of the requested amendment, the County’s zoning provisions did not
require a County permit for drilling on lands zoned for exclusive agriculture, limited
agriculture, medium industrial, heavy industrial or natural resource. The County did
require conditional use permits for drilling in certain residential and commercial districts,
though few requests for this type of permit were processed. Regardless of whether
proposed oil and gas activities within the County’s jurisdiction required a conditional use
permit or not, such activities were subject to (1) the County’s basic standards for
development, building and safety and (2) the permit requirements of state and regional
agencies such as the Department of Conservation, Division of Oil, Gas, and Geothermal
Resources (DOGGR),3 the Department of Fish and Wildlife, and the San Joaquin Valley
Air Pollution Control District (Air District).
3 Effective January 1, 2020, DOGGR was renamed the “Geologic Energy
Management Division in the Department of Conservation.” (§ 3002; Stats. 2019, ch. 771,
§ 8.) For purposes of this opinion, we continue to refer to the division as DOGGR.
5.
The Oil Associations’ stated goals in seeking the zoning amendments were to (1)
create an effective regulatory and permitting process for oil and gas exploration and
production, which could be relied upon by the County, DOGGR and other agencies; (2)
achieve an efficient and streamlined environmental review and permitting process for all
oil and gas operations covered by the proposed amendment; and (3) develop industry-
wide best practices, performance standards, and mitigation measures to ensure adequate
protection of public health and safety and the environment. If these efficiencies were
attained, Oil Associations believed it would increase oil and gas exploration and
production in Kern County, which in turn would benefit the local economy.
The proposed amendments required permits for all new oil and gas activities and
subjected applications for permits to a ministerial “Oil and Gas Conformity Review.” An
important purpose of the proposed amendment was to eliminate time-consuming and
costly review of individual well and field development activities by establishing a
ministerial4 permit review process that incorporates mitigation measures identified in the
project’s EIR. If the County correctly determined the permit review process was
ministerial—that is, did not involve the exercise of discretion—the processing of future
permit applications by the County will not be subject to additional environmental review
under CEQA. Also, the EIR prepared for the adoption of the proposed zoning
amendment may be used by other responsible agencies with discretionary authority over
individual well or field developments. The final EIR for the zoning amendment stated,
“this streamlining may avoid individualized-CEQA review for many projects.” The final
EIR also stated the amendment would “significantly increase[] the County’s oversight of
oil and gas [activities] that are currently allowed ‘by right,’ without any ministerial or
discretionary review, under the County’s Zoning Code.”
4 “Ministerial projects are exempt from the requirements of CEQA.” (Guidelines, §
15268, subd. (a).) “Guidelines” refers to the regulations that implement CEQA and are
codified in California Code of Regulations, title 14, section 15000 et seq.
6.
Project Area
Kern County contains 8,202 square miles. The project area encompasses 3,700
square miles, including most of the San Joaquin Valley Floor within Kern County. The
project area is bordered on the west by San Luis Obispo County. The project area’s
northern boundary is the Kings and Tulare county lines. The eastern boundary of the
project area was established at the 2,000-foot elevation in the foothills of surrounding
mountain ranges.
Kern County wells are the source of 80 percent of all oil and gas produced in
California. In 2013, Kern County had 43,568 active oil and gas, dry gas, and gas storage
wells and 15,863 inactive wells. The project area contains 100 active and abandoned
“Administrative Oilfields,” a term defined by DOGGR. These oilfields cover
approximately 931.4 square miles, which is roughly 25 percent of the project area of
3,700 square miles.
The EIR forecasted an average of 2,697 new producing oil and gas wells would be
drilled in the project area each year from 2015 through 2040. When other types of wells,
such as water disposals, steam flood injectors, water flood injectors and observation
wells, are included the total new wells reach 3,649 per year. The EIR forecasted 2,221
wells would be plugged and abandoned each year. Well plugging and abandonment is
the last stage of oil and gas activities, lasts only a few days, and allows the site to be
reclaimed or repurposed.
Project Subareas
The EIR divided the project area into three subareas and used those subareas in its
analysis of many of the project’s environmental impacts. The western subarea contains
1,714 square miles. Interstate 5 forms the boundary between it and the other subareas.
The western subarea contains 37 active oil and gas fields, including five of California’s
largest producing fields.
7.
The central subarea contains 1,025 square miles and is bordered by Interstate 5 on
the west and State Route 65 and State Route 223 on the east. It contains 21 active oil and
gas fields, some large-scale production activity and some of the deepest wells in Kern
County.
The eastern subarea contains 953 square miles and is bounded by State Route 65
and State Route 223 on the west. It contains 20 active oil and gas fields and several
large-scale production areas, including the Kern River Oilfield in the Oildale area.
The land within the project area also was classified under a tier system set forth in
the amended zoning ordinance. This tier system is based on the land uses within the area.
Tier 1 areas are where oil and gas activity is the primary land use and the existing well
and activity densities preclude almost all other uses. Tier 2 areas have agriculture as the
primary land use. Tier 3 areas are zoned for light, medium or heavy industrial, natural
resource, recreation forestry, floodplain, and a few other uses. Tier 4 areas are zoned for
residential and commercial use and oil and gas activities require a conditional use permit.
Tier 5 areas are with specific plan boundaries either adopted with a special planning
district or which include specific provisions for oil and gas operations. The regulations
included in the specific plan would govern the approval of oil and gas activities or, in the
absence of such regulations, a conditional use permit would be required.
Air and Water
Water supply and air quality within Kern County and the project area are serious
concerns. The United States Environmental Protection Agency (EPA) has established
health-based ambient air quality standards, or allowable limits, for seven pollutants—
ozone, carbon monoxide, nitrogen dioxide (NO2), sulfur dioxide (SO2), lead, respirable
particulate matter (PM10), and PM2.5.5 These pollutants are commonly referred to as
5 “PM10” refers to particulate matter less than 10 micron. Federal regulations
define “PM2.5” as “particles with an aerodynamic diameter less than or equal to a
nominal 2.5 micrometers.” (40 C.F.R. § 50.7(a); cf. Cal. Code Regs., tit. 17, § 70100,
8.
“criteria pollutants.” (See 40 C.F.R. Part 50 [national primary and secondary ambient air
quality standards].) State Air Resources Board (ARB) has established allowable
concentration levels for criteria pollutants along with sulfate (SO4), hydrogen sulfide
(H2S), visibility reducing particles, and vinyl chloride. ARB’s ambient air quality
standards for criteria pollutants and other pollutants equal or exceed federal standards.
(See Cal. Code Regs., tit. 17, §§ 70100–70201 [state ambient air quality standards].)
Based on data from 2014, the project area fails to attain (i.e., exceeds) ARB and national
standards for ozone and PM2.5 and fails to attain ARB standards for PM10.
The water demands of Kern County’s residents, farms and other businesses exceed
the local surface water supplied by the area’s principal river, the Kern River, and streams
such as Poso Creek. Based on long-term averages, local surface water supplies account
for slightly less than one-third of the total water supplies in the project area. Thus, the
project area is dependent upon imported surface water and groundwater pumping. The
specific environmental concerns associated with the sources of water for the project area
are discussed in parts II. through IV. of this opinion.
Environmental Review
In June 2013, the County’s planning and community development department
recommended that the Board approve a proposed consulting agreement with Ecology &
Environmental, Inc. to prepare the EIR for the proposed amendment to the zoning
ordinance. That firm had submitted a proposal along with a bid of $960,549. The
department’s recommendation stated the Oil Associations, as project proponents, would
subds. (i), (j) [definitions of suspended particulate matter (PM10) and fine suspended
particulate matter (PM2.5)].)
The “standards are specified concentrations and durations of air pollutants.” (Cal.
Code Regs., tit. 17, § 70100, subd. (a).) The concentrations for some standards are stated
in parts per million or in micrograms per cubic meter. (Id., subds. (c), (d).)
9.
be required to fund (1) the preparation of the EIR and (2) the staff time for processing the
CEQA documents.
On August 30, 2013, the County published a notice of preparation of a draft EIR
for the proposed Ordinance. The notice of preparation set four scoping meetings in
September 2013.
On July 8, 2015, the County released a draft EIR for public comment. From its
table of contents in the front to the glossary at its end, the draft EIR is over 1,800 pages.
In addition, 23 appendices to the draft EIR contain approximately 6,100 pages. The
County set August 24, 2015, as the deadline for submitting comments on the EIR. Also,
the public was notified that the County planning and community development department
would hold three public workshops before the deadline and that the County’s planning
commission would hold a public meeting on October 5, 2015.
On September 25, 2015, the County released chapter 7 of the final EIR, “Response
to Comments.” That chapter addressed the 71 comment letters received from state
agencies, local agencies and other interested parties. The cover letter for chapter 7
referred to the public hearing scheduled for October 5, 2015, before County’s planning
commission. One of the appendices listed in chapter 7 was designated M-1, “Revised
Health Risk Assessment.” It was prepared by Environmental Compliance Solutions, Inc.,
was dated September 19, 2015, and contained 18 pages.
On November 2, 2015, after the planning commission’s public meeting, the
County released chapter 12 of the EIR, “Final Environmental Impact Report
Consolidation.” Chapter 12 included revisions to the zoning amendment recommended
by staff, clarifications and modifications of the draft EIR, all written comments received
by the County after the period for comments to the draft EIR and after the planning
commission’s October 5, 2015, hearing on the project, and staff-initiated clarifications
and amplifications made following the September 25, 2015, publication of chapter 7.
10.
Chapter 12 also proposed the addition of five new EIR appendices, including Appendix
M-2, Cumulative Health Risk Assessment.
Approval of Ordinance
On November 9, 2015, the Board held a special meeting at which it approved the
project by adopting Ordinance No. G-8605 (Ordinance). The Ordinance amended
Chapter 19.98 to County’s Ordinance Code and modified other zoning provisions.
Chapter 19.98 contains procedures and standards applicable to the exploration, drilling
and production of oil and gas. (Ordinance, § 19.98.010.) The Board also certified the
EIR and adopted (1) findings of fact to support its determinations relating to significant
environmental impacts, (2) a statement of overriding considerations, and (3) the proposed
mitigation measure monitoring program.
PROCEEDINGS
Parties
On December 9, 2015, King and Gardiner Farms, LLC, a California limited
liability company (KG Farms), filed a verified petition for writ of mandate and complaint
for declaratory and injunctive relief against the County, the Board and the planning and
community development department of the County. KG Farms’ pleading also named Oil
Associations as real parties in interest and alleged they were listed as project applicants
on the notice of determination issued by the County on November 10, 2015.6 The
pleading alleged violations of CEQA and the State Planning and Zoning Law (Gov.
Code, § 65000 et seq.). KG Farms’ lawsuit was assigned case No. BCV-15-101666 by
the Kern County Superior Court.
6 “A properly filed and posted notice of determination starts the 30-day statute of
limitations for court challenges to the agency’s CEQA determination. (§ 21167, subd.
(e); Guidelines, § 15075, subd. (g).)” (Citizens for the Restoration of L Street v. City of
Fresno (2014) 229 Cal.App.4th 340, 351, fn. 11.)
11.
On December 10, 2015, Committee For A Better Arvin, Committee For A Better
Shafter, Greenfield Walking Group, Natural Resources Defense Council, Sierra Club, and
Center for Biological Diversity (collectively, Sierra Club) filed a petition for writ of
mandate and complaint for declaratory and injunctive relief against the County, the
Board, the County’s planning commission, the County’s planning and development
department, and the three real parties in interest (Oil Associations). Sierra Club’s
pleading alleged violations of CEQA and the State Planning and Zoning Law and was
assigned case No. BCV-15-101679 by the Kern County Superior Court.
Consolidation
Based on a February 2016 stipulation of the parties, the CEQA actions brought by
KG Farms and Sierra Club were consolidated with a lawsuit brought by Vaquero Energy,
Inc. and a related entity, Hunter Edison Oil Development Limited Partnership
(collectively, Vaquero). Vaquero alleged the Ordinance violated the equal protection
clause and the due process clause and, as a result, was invalid.
Trial and Judgment
The trial of the consolidated matters was conducted in June, August and December
of 2017. In March 2018, the trial court issued its written ruling resolving all claims and
issues. The ruling stated Vaquero had failed to prove the Ordinance was
unconstitutional. The ruling also stated the EIR violated CEQA by failing to analyze (1)
the Ordinance’s impacts on rangeland and (2) the environmental impacts the road paving
mitigation measure intended to reduce dust and the project’s impacts on air quality. The
ruling denied all other CEQA claims asserted by KG Farms and Sierra Club.
On April 20, 2018, the trial court entered a single, final judgment in the
consolidated CEQA actions. The judgment set forth the directions that would be
included in a peremptory writ of mandate addressing the deficiencies in the EIR relating
to impacts on rangeland and from road paving as an air emissions mitigation measure.
The trial court entered a separate judgment addressing its denial of Vaquero’s claims.
12.
Appeals
In June 2018, KG Farms, Sierra Club and Vaquero filed appeals. The three
appeals were assigned case No. F077656 by this court. In August 2019, we bifurcated
Vaquero’s constitutional claims from the CEQA claims and assigned Vaquero’s appeal
case No. F079719. In October 2019, we heard oral argument in Vaquero’s appeal and
published a decision rejecting Vaquero’s constitutional claims. (Vaquero Energy, Inc. v.
County of Kern (2019) 42 Cal.App.5th 312.)
DISCUSSION
I. STANDARD OF REVIEW
Plaintiffs seek to invalidate the Ordinance by arguing the EIR failed to comply
with several requirements of CEQA. “The basic purpose of an EIR is to ‘provide public
agencies and the public in general with detailed information about the effect [that] a
proposed project is likely to have on the environment; to list ways in which the
significant effects of such a project might be minimized; and to indicate alternatives to
such a project.’ (§ 21061.)” (Sierra Club v. County of Fresno (2018) 6 Cal.5th 502,
511.) An EIR is a document of accountability because it must be certified or rejected by
public officials—in this case, the Board. (Id. at p. 512.) The public disclosures made by
a properly prepared EIR protect both the environment and informed self-government.
(Ibid.)
Judicial review of a public agency’s compliance with CEQA is governed by the
abuse of discretion standard set forth in section 21168.5 and referred to in the policy
declaration of section 21005, subdivision (a).7 (Sierra Club v. County of Fresno, supra, 6
7 Under California policy, “noncompliance with the information disclosure
provisions of [CEQA that] precludes relevant information from being presented to the
public agency … may constitute a prejudicial abuse of discretion … regardless of
whether a different outcome would have resulted if the public agency had complied with
those provisions.” (§ 21005, subd. (a).)
13.
Cal.5th at p. 512.) Section 21168.5 provides that our “inquiry shall extend only to
whether there was a prejudicial abuse of discretion. Abuse of discretion is established if
the agency has not proceeded in a manner required by law or if the determination or
decision is not supported by substantial evidence.” (§ 21168.5.) Generally, an abuse of
discretion may occur in two ways. The public agency could fail to proceed in the manner
required by CEQA, thereby committing procedural (i.e., legal) error. Also, the public
agency could err by making findings of fact unsupported by substantial evidence.
Whether the public agency has employed the correct procedures—that is, followed
applicable law—is subject to independent judicial review. (Sierra Club v. County of
Fresno, supra, at p. 512.) In contrast, when the agency acts in its role as the finder of
facts, its findings are subject to deferential review under the substantial evidence
standard. (Ibid.)
In this case, some of the claims raised by plaintiffs assert the discussion contained
in the EIR is inadequate, which undermines the EIR’s effectiveness as an informational
document. Sometimes, claims of an inadequate discussion cannot be neatly categorized
as either factual or procedural error. (Sierra Club v. County of Fresno, supra, 6 Cal.5th
at p. 513.) Our choice of the applicable standard of review for a particular claim of
inadequacy is set forth in the section of this opinion discussing that claim.
II. IMPACTS ON LOCAL WATER SUPPLY
Water and its availability present many issues important to Californians. It is
particularly important in Kern County where the Kern County subbasin of the San
Joaquin Valley Groundwater Basin, which includes most of the project area, has been
subject to conditions of critical overdraft since 1980.8 Consequently, our evaluation
begins with the various water-related CEQA violations raised.
8 A bulletin released by the Department of Water Resources (DWR) in 1980
identified five of the seven southern San Joaquin Valley groundwater subbasins as being
subject to conditions of critical overdraft. By “critical overdraft,” DWR means a
14.
A. Contentions of the Parties
KG Farms contends the EIR did not contain the detailed, informative analysis of
the project’s water supply impacts required by CEQA because it only analyzed those
impacts at a regional level and disregarded local impacts. KG Farms contends the EIR
must analyze water supply impact “to the extent reasonably possible.” (Vineyard Area
Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412,
431 (Vineyard).) Under KG Farms’ view of the administrative record, it was possible for
the County to analyze the project’s local water supply impacts and the reasons offered by
the County for its use of three regional subareas are insufficient to excuse it from
addressing local impacts.
Oil Associations and the County agree that Vineyard requires an EIR to analyze
water supplies to the extent reasonably possible. They contend the EIR met this standard
by performing a detailed, systematic analysis of water supply impacts within three
separate subareas using the best available data. They argue a more localized analysis is
not required by CEQA because (1) using a more geographically specific unit would have
posed serious technical challenges and (2) any localized water analysis would have been
speculative due to the many uncertainties in forecasting long-term use. Some of the
uncertainty stemmed from how the new Sustainable Groundwater Management Act
(SGMA)9 will be implemented.
condition in which continuation of present water management practices would probably
result in significant adverse overdraft-related environmental, social, or economic impacts.
9 “In 2014, California adopted landmark legislation, the Sustainable Groundwater
Management Act [SGMA] (Part 2.74 (commencing with Section 10720) of Division 6 [of
the Water Code]), to sustainably manage groundwater resources. The act will not be
fully implemented for several years, allowing groundwater overdraft to continue in some
regions.” (Wat. Code, § 13807, subd. (b).) Under SGMA, specified groundwater basins,
which include those in the project area, must be managed under a new groundwater
sustainability plan, or a coordinated set of plans, by January 31, 2020.
In 2017, the Legislature added article 5 (Wat. Code, §§ 13807–13808.8) to chapter
10 of division 7 of the Water Code to address new wells in critically overdrafted
15.
B. Disclosures in the EIR
Appendix T to the draft EIR was a Water Supply Assessment Report (WSA)
prepared for project proponent Western States Petroleum Association by Kennedy/Jenks
Consultants. Sections 4, 5 and 6 of the WSA addressed ground and surface water
supplies, water demand by the oil and gas industry, and water demand for the project area
generally. Section 7 of the WSA compares water supply and demand using three
scenarios—a normal or average year, a single dry year and multiple dry years. The final
EIR included a revised WSA, dated September 18, 2015. Both versions of the WSA
found “that there is no surplus water in the Project Area.”
1. Physical Setting
Chapter 4.9 of the EIR addressed hydrology and water quality. Section 4.9.2,
“Environmental Setting,” described the project area’s hydrogeology, which included its
water bearing formations and groundwater recharge and storage. That section also
addressed the relationship between oil and gas production and water resources by
summarizing the sources and uses of water for oil and gas exploration and production.
The EIR identified two categories of water—municipal and industrial (M&I)
water10 and “produced water.” Produced water is groundwater that naturally occurs in oil
and gas reservoirs, is brought to the surface with the extracted oil and gas, and is
separated from the hydrocarbons after extraction. Produced water usually is saline and
poor quality. Most produced water cannot be used for agricultural, residential,
commercial or industrial uses without substantial treatment to remove contaminants.
groundwater basins, which includes the project area. (Stats. 2017, ch. 538, § 1, pp. 4053–
4055.) Among other things, the legislation (1) required applicants for new wells in such
basins to include information about the proposed well in their permit applications and (2)
made that information available to the public and groundwater sustainability agencies.
(Wat. Code, §§ 13808, 13808.2; see pt. XII.E.1., post.)
10 The WSA states fresh water is referred to as M&I water. It also states high quality
water from the State Water Project and the Central Valley Project are sources of M&I
water.
16.
Based on data from 2012, the draft EIR stated 234,959 acre-feet of water supplied
to oil and gas operations came from produced water and 8,778 acre-feet came from M&I
water. Some of the produced water was used for oil and gas purposes (88,812 acre-feet),
some was treated and used for agricultural irrigation (32,771 acre-feet), and some was
disposed of in ponds or by well injection (114,794 acre-feet).11 Thus, M&I water
accounted for approximately nine percent of total water demand for gas and oil
exploration and production.
2. Regulatory Setting
Section 4.9.3 of the EIR addressed the regulatory setting by describing federal and
state laws affecting water supply and local plans, such as the County’s general plan. The
state laws regulate (1) discharges of drilling mud and drilling fluid on land, (2) disposal
of produced water in percolation and evaporation ponds, (3) discharges to injection wells,
(4) hydraulic fracturing, and (5) the reporting of water use and disposal by oil and gas
producers. The EIR also described 2009 amendments to the Water Code requiring the
DWR to implement a new California statewide groundwater elevation monitoring
(CASGEM) program.12 The program collects data on groundwater levels and use for 515
designated groundwater basins in the state, including the Kern County subbasin that
underlies most of the project area. When the draft EIR was prepared, the Kern County
subbasin was considered the 21st most impacted of the 515 basins and was designated a
high priority basin under the CASGEM program.
The EIR also described SGMA, which was enacted in 2014. (See fn. 7, ante.)
Under SGMA, groundwater basins, such as the Kern County subbasin, must be managed
under a new groundwater sustainability plan, or a coordinated set of plans, by January 31,
11 The revised WSA prepared in September 2015 updated the estimate of agricultural
use of treated produced water to 38,658 acre-feet.
12 In 2009, the Legislature amended the Water Code to require the DWR to develop
and implement this monitoring program.
17.
2020, because it (1) has been designated as high or medium priority under the CASGEM
program and (2) is subject to critical overdraft conditions. Accordingly, to comply with
SGMA, a groundwater sustainability plan must be adopted for the Kern County subbasin
by January 31, 2020.
Where groundwater sustainability plans are required, one or more local
groundwater sustainability agencies must be formed to cover the basin and prepare and
implement the applicable groundwater sustainability plans. Groundwater sustainability
plans will be reviewed by the DWR to ensure that over a period of 20 years, “sustainable
groundwater management” is achieved. (See Wat. Code, § 10721, subd. (w).) There are
approximately 10 groundwater sustainability agencies in the project area.
The EIR states “the County’s authority to regulate subsurface activities relating to
oil and gas exploration and production is preempted by state and federal laws and
regulations.” Therefore, the EIR states County cannot directly regulate or impose
mitigation measures that directly regulate subsurface activities by oil and gas operators,
but it retains jurisdiction over activities conducted at the surface, including those that may
affect subsurface water quality.
3. EIR’s Analysis of Water Supply Impacts
Section 4.9.4 of the EIR addressed impacts to hydrological resources and
mitigation measures for the significant impacts. It estimated that by 2035 the use of M&I
water, originating from state and federal water projects, in oil and gas exploration and
production would increase by 2,983 acre-feet from the 8,778 acre-feet used in 2012. This
total increase was allocated across the western (2,493 acre-feet), central (332 acre-feet),
and eastern (158 acre-feet) subareas. The EIR also discussed the prospect of increasing
the amount of produced water generated by oil and gas activities and increasing the reuse
of produced water. The EIR concluded the recommended mitigation measures would
encourage the additional reuse of produced water, but “the extent to which oilfield
18.
operators can increase produced water reuse and decrease M&I [water] demand is
uncertain. As a result, potential impacts to groundwater levels and aquifer volumes
would be significant and unavoidable with mitigation.”
Chapter 4.17 of the EIR addressed utilities and service systems, including the
systems providing water. Table 4.17-12 summarized the project area water supplies
available in 2015 and estimated the amounts available in 2035. The supplies included
groundwater, surface water from the Kern River, oilfield produced water, recycled water,
and surface water imported from the State Water Project, which is run by the DWR, and
from the Central Valley Project, which is run by the Bureau of Reclamation, a federal
agency.
Table 4.17-22 summarized the project area demands (agricultural, urban, and oil
and gas) for water in average, single dry and multiple dry years for 2015 and 2035.
Agricultural demand was based on figures from 2006 obtained from the DWR. The EIR
assumed agricultural demand would remain constant, despite the reduction in agricultural
land by urban development and other factors. Urban demand was based on publicly
available information from 19 different water purveyors, and projections were made for
2020, 2025, 2030 and 2035. The demand from oil and gas exploration and production for
produced water and M&I water also was estimated for these years.
Tables 4.17-27 through 4.17-29 in the EIR show the water demand and supply for
the project area and each subarea in average, single dry and multiple dry years at five-
year intervals from 2015 to 2035. In average years, the water supply and demand in the
project area is approximately the same with surpluses in the eastern and western subareas
offsetting deficits in the central subarea, which deficits are caused from extensive
agricultural activity and the need for irrigation. In single dry years, surface water
imported from the State Water Project would be reduced substantially, resulting in
significant supply deficits in the project area. While the eastern subarea would have a
surplus, it would not offset the deficits projected for the western and central subareas.
19.
Due to the leveling effect of using an average, the EIR stated that more water would be
available in multiple dry years than in a single dry year.13
The EIR addressed water supply and demand using the three subareas and did not
provide a more localized analysis. For example, it did not perform an analysis at the
water district level. The WSA included a map that named 30 water and irrigation
districts in the project area and marked their territories using color codes. Table 2 of the
WSA listed 43 wholesale and retail water purveyors within the project area and the
subareas in which they operated. The WSA also described the water supply conditions
associated with the water purveyors, which included imported water supplied by the State
Water Project or the Central Valley Project and local surface water from the Kern River
and minor streams. As to the potential location of M&I water demand for oil and gas
activities, section 3.3.1 of the EIR identified 100 active or abandoned oilfields delineated
by DOGGR and specified the size and the subarea (western, central, eastern) where each
was located. Figure 3-3 in the EIR was a map showing the location of the oil and gas
fields.
The EIR attempted to place the water demand created by oil and gas exploration
and production in context of the overall demand for water in the project area. The EIR
estimated that sector’s demand for M&I water in 2015 would be 0.37 percent of the total
project area demand for M&I and agricultural water and would be 0.44 percent of the
total project area demand for M&I and agricultural water in 2035. The EIR also
discussed the possibility that the increased use of produced water otherwise subject to
disposal might “completely offset oil and gas M&I water demand by 2035.” The EIR
stated additional reuse of produced water could require more intensive, costly treatment
13 According to the WSA, the figures for a single dry year were “based on a repeat of
the worst-case historic[al] hydrologic conditions of 1977.” The estimates for supplies
over a multiple dry year period were based on average conditions created by the four-year
drought of 1931-1934.
20.
and this treatment could have other environmental effects related to increased energy use,
increased emissions adversely impacting air quality, and disposal of the waste stream
created.
C. Analysis
1. Applicable Legal Principles
The parties agree that the EIR must analyze water supplies “to the extent
reasonably possible.” (Vineyard, supra, 40 Cal.4th at p. 431.) They disagree on the
applicable standard of review. Oil Associations and the County contend the substantial
evidence standard applies to its decision to use subareas, rather than more localized units,
to analyze water supply impact. In contrast, KG Farms contends the omission of
essential information about impacts to local water supplies constitutes legal error subject
to de novo review.
As to the meaning of what is “reasonably possible” when disclosing information in
an EIR, we conclude that term must be defined and applied by considering the purpose of
preparing an EIR. That purpose is “ ‘to enable those who did not participate in its
preparation to understand and to consider meaningfully the issues raised by the proposed
project.’ ” (Sierra Club v. County of Fresno, supra, 6 Cal.5th at p. 516.) The inquiry
presents a mixed question of law and fact, which usually is subject to independent review
and is subject to substantial evidence review only when questions of fact predominate.
(Ibid.; see Guidelines, §§ 15144 [forecasting], 15145 [speculation], 15146 [degree of
specificity].) “[T]he sufficiency of an EIR is to be reviewed in light of what is
reasonably feasible.” (Guidelines, § 15151 [standards for adequacy of an EIR].) We
conclude our Supreme Court’s use of the phrase “to the extent reasonably possible”
corresponds with the Guidelines’ use of the phrase “what is reasonably feasible.” (Ibid.;
see Guidelines, § 15364 [definition of feasible].)
21.
As described below, we conclude that, within the context of this case, whether the
EIR analyzed water supply impact to the extent reasonably possible presents a mixed
question of fact and law in which factual questions predominate and, thus, the substantial
evidence standard applies.14 Furthermore, we conclude the record contains substantial
evidence supporting the approach taken in the EIR.
2. Farmer Impacts
First, we address Oil Associations’ contention that KG Farms is claiming CEQA
requires an analysis of impacts to individual farmers. Oil Associations argue such an
analysis is not possible because (1) the precise location of future oil wells is not known
and (2) individual farmers do not report their water use. KG Farms responds by asserting
it is not seeking an analysis of water supply impacts to individual farmers, but it seeks a
meaningful level of detail rather that a broad analysis using three subareas. We conclude
Oil Associations have adopted an interpretation of KG Farms’ briefing to set up a straw
man. (See Black’s Law Dict. (11th ed. 2019) [“tenuous and exaggerated
counterargument that an advocate makes for the sole purpose of disproving it”].)
Consequently, no further discussion of Oil Associations’ contention about individual
farmers is required.
3. Positive Net Impact of Produced Water
Second, we consider Oil Associations’ contention that “to the extent that oil and
gas water use has any effect, it is a ‘small positive net water supply benefit.’ ” As Oil
Associations interpret the record, “[e]ven with no increase in produced water re-use from
the mitigation measures, the current 38,658 [acre-feet per year] of produced water used in
14 In another case, this court stated that “whether the EIR’s disclosures regarding the
project’s water supply complies with CEQA is a question of law.” (Madera Oversight
Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, 102.) That conclusion
did not state an all-encompassing rule of law. Instead, the conclusion was based on the
circumstances presented in that case.
22.
irrigation exceeds the oil and gas industry’s 2035 M&I water demand by 26,898 [acre-
feet per year].” (Fn. omitted.)
Table 7-15 in the final EIR states that in 2012, oil and gas exploration and
production activities used 8,778 acre-feet of M&I water and 38,658 acre-feet of its
produced water was used for agricultural purposes. Based on these figures, the net effect
in the baseline year of 2012 was a positive 29,880 acre-feet (38,658 minus 8,778).
Comparing the figure of 29,880 acre-feet to Oil Associations’ calculation of the net effect
in 2035 (26,898 acre-feet) results in an estimated decrease in the positive net water
supply impact to 2,982 acre-feet in 2035. This reduction of a positive net effect on water
supply is an adverse environmental impact. Thus, Oil Associations attempt to justify the
absence of a localized water supply impact analysis based on the projections that oil and
gas activities will supply agriculture with more irrigation water than the M&I water used
by oil and gas activities in 2035 is beside the point. Baseline conditions are projected to
change for the worse. Thus, Oil Associations’ contention is devoid of merit.
4. Speculation on Groundwater Supplies and What’s Reasonably
Possible
Third, Oil Associations contend uncertainties in future water supplies and in the
way supplies will be allocated render a more detailed analysis speculative and of no
useful purpose. Part of this uncertainty arises from how SGMA and the new groundwater
sustainability plans it mandates for the Kern County subbasin will be implemented.
KG Farms contends CEQA does not allow the County to simply label the
uncertainties about water supplies as speculative and then move on. KG Farms argues
SGMA sets specific long-term goals for required groundwater plans that are similar to
those in existing groundwater management plans and, therefore, the County could readily
make informed judgments regarding near- and long-term impacts on local water supplies.
The EIR stated the WSA analyzed groundwater extraction using an historical
mean average as the best information available prior to the implementation of the
23.
groundwater sustainability plans for the Kern County subbasin. It also stated this average
extraction figure “does not represent the safe or sustainable yield for the Project Area”
and the WSA did not consider or identify a safe or sustainable groundwater yield for the
project area. The EIR explained this omission by stating the groundwater sustainability
plans “will identify the sustainable or safe yield that will avoid unsustainable extraction
rates that could yield ‘undesirable results.’ ” Groundwater extraction represents about 75
percent of water supplies in a dry year.
The information about the uncertainty created by SGMA and the implementation
of groundwater sustainability plans for the project area’s largest water source provides
substantial evidence supporting the determination that a more localized analysis of water
supply impacts would be speculative. Accordingly, we conclude the EIR, when it was
prepared and circulated, did not violate the requirement that it analyze water supply
impact to the extent reasonably possible.15
III. EIR’S ANALYSIS OF THE RECENT DROUGHT
A. Contentions of the Parties
KG Farms contends the EIR violates CEQA because it fails to meaningfully
address the historic four-year drought (winter of 2012 through winter of 2015) that
markedly affected water supplies in Kern County by failing to use the most recent data,
which caused it to underestimate the project’s effect on water shortages. KG Farms
contends the County violated Guidelines section 15064, subdivision (a), which provides
15 However, as explained in part IV.H. of this opinion, the EIR’s discussion of
mitigation measures for the project’s significant impacts to water supplies was inadequate
and, as a result, the EIR’s discussion must be revised if the County chooses to readopt the
Ordinance. In the “Appellate Relief” section of this opinion, we conclude the revised
EIR’s analysis of water supply must be brought up to date. Whether the updated
information will warrant an analysis of impact to water supplies at a level other than the
subareas used in the original EIR is a question that must be decided in the first instance
by the County in its role as lead agency.
24.
the evaluation of an impact’s significance must be “based to the extent possible on
scientific and factual data.”
B. The EIR’s Discussion of the Drought
On August 30, 2013, the County published a notice of preparation of a draft EIR
for the proposed Ordinance. The date of the notice of preparation affects the contents of
the EIR. Pursuant to Guidelines former section 15125, subdivision (a), the “EIR must
include a description of the physical environmental conditions in the vicinity of the
project, as they exist at the time the notice of preparation is published.”
The draft EIR was released in July 2015. Chapter 4.9 addressed hydrology and
water quality. Section 4.9.2, “Environmental Setting,” described the project area’s
hydrogeology. Part of that description is set forth in part II.B.1., ante. Section 4.9.2’s
discussion of groundwater recharge and storage included many statements about the
drought. For instance, it referred to the Governor’s April 2014 drought proclamation and
the November 2014 release by DWR of a Public Update for Drought Response. The EIR
described the drought, stating: “California’s 2014 water year was one of the driest in
decades and followed two consecutive dry years throughout the state.” It also stated the
demand for groundwater is increased during periods of droughts and described decreases
in the water table: “From the fall of 2013 to the fall of 2014, water table elevations
declined substantially in the Tulare Lake Basin.” The declines ranged from 25 to more
than 50 feet. To put these declines in perspective, the EIR stated “the magnitude of water
table decline during the 2014 water year indicates the basin has experienced some of the
largest withdrawals of groundwater in the state and substantial withdrawals from
groundwater that had been previously stored for future use.”
The EIR’s discussion of the project’s operational impact to hydrology included the
following discussion of the drought:
“California is experiencing a severe drought and has implemented
unprecedented water use reduction measures to address historically low
25.
snowpack and rainfall levels. The drought has had substantial impacts in
Kern County, which relies on imported surface water and groundwater to
meet urban and agricultural demand. Due to drought-related reductions in
surface water availability, regional aquifers have been depleted by
extractions in lieu of surface water use to a substantial extent (DWR 2014).
As shown in the regional water supply and demand projections, Project
Area demand is projected to significantly exceed supplies in single dry and
multiple dry years through 2035. The projections do not assume that the
implementation of the new groundwater sustainability plan process in the
Project Area may reduce groundwater extraction levels to achieve legally
applicable aquifer sustainability requirements. Should groundwater
extractions be further limited by the groundwater sustainability plan, the
supply shortfalls could be greater than anticipated.”
The EIR also addressed the drought in discussing the project’s contribution to
cumulative hydrology and water quality impacts:
“Project Area aquifers are historically overdrafted, and recent monitoring
data indicates that groundwater storage and elevations have been reduced to
historically low levels in many Project Area locations during the current
drought ([WSA,] Appendix T). Project Area aquifers are identified as high
priority basins in the state CASGEM program and a sustainable level of
groundwater use must be determined and implemented for the region by
2020 under recently enacted state law.”
In describing project area water supplies, the EIR stated that “[d]uring the current
drought, which began in 2012, portions of the Project Area have not received any
imported water and are totally dependent on groundwater” and, as a result, groundwater
levels had declined.16 The EIR also addressed the length of the drought by stating: “In
April 2015, the [DWR] determined that the drought is continuing into a fourth year.”
In addition to the discussion in chapter four of the EIR, the WSA stated its purpose
was “to describe current and future water supplies as well as water demands in the
Project Area.” The water supplies included imported water, surface water, groundwater,
16 Similarly, page 23 of the WSA states: “During the drought years of 2012-2014 it
has transpired that portions of the Project Area have not received any imported water and
thus are totally dependent upon groundwater. This has negatively impacted groundwater
levels in the Project Area.”
26.
and recycled water. The WSA addressed supply sources and water demands in normal,
single-dry, and multiple-dry years, in five-year increments from 2015 to 2035. The WSA
described uncertainty in the information available, including the supply projections from
the State Water Project and the Central Valley Project. The WSA stated the projections it
relied upon “use the most current modeling and date available,” but “because 2014 was a
historically dry year[,] it is likely projections of supply from these sources will be revised
by the [DWR] and the [Bureau of] Reclamation.”17 The WSA found that surplus water
was not available in the project area, stating:
“Essentially, any new use of water is taking water away from some other
user or results in groundwater overdraft. The Central Sub-Area has the
greatest potential shortage. Even in an average year supplies are
insufficient to meet demands both currently (2015) and into the future
(2035). The Central Sub-Area also has projected shortages in a very dry
year as well as a multiple-year drought. The West Sub-Area could
experience shortages in a very dry year. The East Sub-Area generally has
sufficient supply, but this supply cannot compensate for shortages in the
other two subareas.”
Table 43 in the WSA compared the supply and demand for water in the project
area and the three subareas (west, central and east) for multiple dry years from 2015 to
2035. The EIR included this information in Table 4.17-29. The EIR stated the table
showed that, under multiple dry year conditions, “significant supply deficits would occur
in the Project Area and the Central Subarea” and gave figures in acre-feet to identify the
magnitude of these deficits.
17 Section 3.1.3 of the WSA stated the most recent published information available
for the State Water Project supply delivery reliability was set forth in the DWR’s State
Water Project Final 2013 Delivery Reliability Report, which was released in December
2014.
27.
C. Analysis of Alleged CEQA Violation
1. Adequacy of Discussion
The legal standard applicable to KG Farms’ claim that the EIR failed to
meaningfully address the drought is the general standard for adequacy. KG Farms’ claim
raises the issue of “whether [the] EIR’s discussion of environmental impacts is adequate,
that is, whether the discussion sufficiently performs the function of facilitating ‘informed
agency decisionmaking and informed public participation.’ ” (Sierra Club v. County of
Fresno, supra, 6 Cal.5th at p. 513; see Galante Vineyards v. Monterey Peninsula Water
Management Dist. (1997) 60 Cal.App.4th 1109, 1123 [EIR acknowledged an impact
would be significant and unavoidable, even with mitigation measures; the
acknowledgment was inadequate and a more detailed analysis of how adverse the impact
would be was required].) In this context, we assume this inquiry presents a question of
law—an assumption favorable to KG Farms.
Based on our review of the contents of the EIR, which includes the WSA, we
conclude the discussion provided adequately facilitated informed agency decisionmaking
and informed public participation. Much of the information provided in the EIR about
the drought is discussed in the foregoing section of this opinion. The EIR also described
the drought’s impact on the demand for groundwater and how that demand contributed to
the overdrafted condition of the Kern County subbasin. In addition, readers of the EIR
were informed about the projections used for future supply and demand and how the
drought increased the uncertainty of those projections. Consequently, we conclude the
EIR provided sufficient information about the drought to facilitate informed agency
decisionmaking and informed public participation.
2. Timeliness of Data
KG Farms contends the EIR violated requirements in Guidelines section 15064,
subdivision (b). The version in effect in 2015 provided in part:
28.
“The determination of whether a project may have a significant effect on
the environment calls for careful judgment on the part of the public agency
involved, based to the extent possible on scientific and factual data. An
ironclad definition of a significant effect is not always possible because the
significance of an activity may vary with the setting.” (Guidelines, former
§ 15064, subd. (b), italics added.)
KG Farms interprets the phrase “to the extent possible on scientific and factual
data” to mean the County was required to use the updated state projections of imported
water that were published before the release of the final EIR in September 2015. The text
of the provision in the Guidelines does not expressly refer to the age of the information
used.
Guidelines former section 15125, subdivision (a) specifically addresses the
disclosure of information about the environmental setting and the appropriate timeframe
for the data used. It states the EIR must describe “the physical environmental conditions
in the vicinity of the project, as they exist at the time the notice of preparation is
published.” (Guidelines, former § 15125, subd. (a).) The County published the notice of
preparation for the draft EIR on August 30, 2013. The draft EIR used the information
that was available at that time to describe the water supply conditions, which included the
drought and its consequences. Therefore, we conclude the draft EIR’s description of the
environmental setting was not “inaccurate, incomplete and misleading” (San Joaquin
Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 729)
and the EIR does not violate Guidelines sections 15064 or 15125. Instead, the EIR
complied with the timing requirement contained in Guidelines section 15125, subdivision
(a).
3. Significant New Information and Recirculation
“Once a draft EIR has been circulated for public review, CEQA does not require
any additional public review of the document before the lead agency may certify the EIR
except in circumstances requiring recirculation.” (Clover Valley Foundation v. City of
Rocklin (2011) 197 Cal.App.4th 200, 223.) Recirculation of an EIR is addressed in
29.
Public Resources Code section 21092.1 and Guidelines section 15088.5. Recirculation is
required when “significant new information” is added to an EIR after the draft EIR has
been circulated for public review. (Pub. Resources Code, § 21092.1; Guidelines,
§ 15088.5, subd. (a).) New information is “significant” if “the EIR is changed in a way
that deprives the public of a meaningful opportunity to comment upon a substantial
adverse environmental effect of the project or a feasible way to mitigate or avoid such an
effect (including a feasible project alternative) that the project’s proponents have declined
to implement.” (Guidelines, § 15088.5, subd. (a).) Examples of significant new
information include disclosures of “a new significant environmental impact would result
from the project” or “a substantial increase in the severity of an environmental impact
would result unless mitigation measures are adopted.” (Guidelines, § 15088.5, subd.
(a)(1), (2).) In addition, recirculation is required when the new information shows “[t]he
draft EIR was so fundamentally and basically inadequate and conclusory in nature that
meaningful public review and comment were precluded.” (Guidelines, § 15088.5, subd.
(a)(4).) In contrast, recirculation is unnecessary if “the new information added to the EIR
merely clarifies or amplifies or makes insignificant modifications in an adequate EIR.”
(Guidelines, § 15088.5, subd. (b).)
The test for determining whether the updated data about the drought and its impact
on water supply constitutes significant new information is whether the public was
deprived of a meaningful opportunity to comment upon the project’s substantial adverse
effect on the water supply, including groundwater. (Guidelines, § 15088.5, subd. (a).)18
18 Here, page 50 of Attorney Rachel B. Hooper’s September 11, 2015, comment
letter asserted the “County must revise and recirculate the [draft EIR] to provide adequate
information about the environmental setting, including a complete description of the
affected aquifers and a realistic assessment of the drought’s effect on water supplies in
the Project Area. Without this information, it is impossible for the document to provide
an accurate analysis of the Project’s water supply impacts.” Based on this comment
letter, we conclude the issue of recirculation with updated data about the drought was
30.
A lead agency’s “decision not to recirculate an EIR must be supported by substantial
evidence.” (Guidelines, § 15088.5, subd. (e).) Consequently, we review the County’s
determination that the updated drought data did not constitute “ ‘significant new
information’ ” requiring recirculation under the substantial evidence test. (Clover Valley
Foundation v. City of Rocklin, supra, 197 Cal.App.4th at p. 223.)
Here, KG Farms has not acknowledged the substantial evidence test applies to the
decision not to recirculate. As a result, KG Farms has failed to carry the burden imposed
on appellants to establish a finding is not supported by substantial evidence. (See Pfeiffer
v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, 1572 [appellant
challenging EIR for insufficient evidence must lay out the evidence favorable to the other
side and show why it is lacking; appellant cannot carry its burden of demonstrating error
if it fails to do so].) Furthermore, based on our review of the record, it appears the public
had a meaningful opportunity to comment on the Ordinance’s potential impact on the
water supply. Therefore, we conclude the County did not violate CEQA at the time it
decided not to recirculate the EIR with updated information about the drought.19
IV. MITIGATION OF WATER SUPPLY IMPACT
A. Legal Background
1. Policies Involving Mitigation
In 1976, the Legislature enacted section 21002, declaring it the policy of
California “that public agencies should not approve projects as proposed if there are
feasible alternatives or feasible mitigation measures available which would substantially
lessen the significant environmental effects of such projects.” (3 Stats. 1976, ch. 1312,
exhausted for purposes of section 21177, subdivision (a) and, consequently, the issue
may be raised in this litigation.
19 Nonetheless, as discussed in part XII. of this opinion, the EIR must be revised if
the County chooses to readopt the Ordinance. The revised discussion of water supply
impacts must be updated; providing that updated information and describing the new
baseline conditions necessarily will take account of the conditions created by the drought.
31.
§ 1, pp. 5888–5889.) The Legislature also declared CEQA’s procedures, which include
the preparation of an EIR, “are intended to assist public agencies in systematically
identifying both the significant effects of proposed projects and the feasible alternatives
or feasible mitigation measures which will avoid or substantially lessen such significant
effects.” (§ 21002.)
2. Describing Mitigation Measures
Once an EIR has identified a potentially significant environmental effect, it must
propose and describe mitigation measures. (§§ 21002.1, subd. (a), 21100, subd. (b).)
Specifically, CEQA requires the EIR to “include a detailed statement setting forth … [¶]
… [¶] [m]itigation measures proposed to minimize significant effects on the environment,
including, but not limited to, measures to reduce the wasteful, inefficient, and
unnecessary consumption of energy.” (§ 21100, subd. (b)(3).) Mitigation is defined as
an action that minimizes, reduces, or avoids a significant environmental impact or that
rectifies or compensates for the impact. (Guidelines, § 15370 [definition of mitigation].)
The mitigation measures discussed in the EIR should be feasible. (Guidelines, § 15126.4,
subd. (a); see Guidelines, § 15364 [definition of feasible].)
CEQA defines the term “ ‘[f]easible’ ” as meaning “capable of being
accomplished in a successful manner within a reasonable period of time, taking into
account economic, environmental, social, and technological factors.” (§ 21061.1; see
§ 21081, subd. (a)(3) [necessary findings relating to mitigation measures or alternatives].)
The guidelines add “legal” factors to the list. (Guidelines, § 15364; see City of Marina v.
Board of Trustees of California State University (2006) 39 Cal.4th 341, 356.)
The role of the EIR, as an informational document, is to identify and describe
potentially significant environmental effects and feasible alternatives or mitigation
measures. In comparison, the role of the lead agency is to make ultimate findings as to
whether potential environmental effects will be significant and to adopt feasible
32.
mitigation measures. (1 Kostka & Zischke, Practice Under the Cal. Environmental
Quality Act (Cont.Ed.Bar 2d ed. 2019) § 14.3, p. 14-5 (Kostka).)
3. Adoption of Mitigation Measures
Generally, “the lead agency must adopt feasible mitigation measures or project
alternatives to reduce the effect to insignificance.” (Center for Biological Diversity v.
Department of Fish & Wildlife (2015) 62 Cal.4th 204, 231 (Center for Biological
Diversity).) If the reductions and offsets achieved by feasible mitigation measures is
insufficient to render the environmental impact insignificant, the lead agency still may
approve the project if it adopts a statement of overriding considerations. (Ibid.; § 21081,
subd. (b).) However, adopting a statement of overriding considerations does not negate
the statutory obligation to implement feasible mitigation measures. “Even when a
project’s benefits outweigh its unmitigated effects, agencies are still required to
implement all mitigation measures unless those measures are truly infeasible.” (Sierra
Club v. County of Fresno, supra, 6 Cal.5th at pp. 524–525.) Stated another way, “if the
County were to approve a project that did not include a feasible mitigation measure, such
approval would amount to an abuse of discretion.” (Id. at p. 526.)
4. Enforcement Requirements for Mitigation Measures
CEQA imposes several requirements on mitigation measures. Section 21081.6,
subdivision (b) provides: “A public agency shall provide that measures to mitigate or
avoid significant effects on the environment are fully enforceable through permit
conditions, agreements, or other measures. Conditions of project approval may be set
forth in referenced documents which address required mitigation measures .…”
Similarly, Guidelines section 15126.4, subdivision (a)(2) states: “Mitigation measures
must be fully enforceable through permit conditions, agreements, or other legally-binding
instruments.” The responsibility of the public agency does not end with simply imposing
enforceable mitigation measures. “The public agency shall adopt a reporting or
33.
monitoring program for the … conditions of project approval, adopted in order to
mitigate or avoid significant effects on the environment.” (§ 21081.6, subd. (a)(1).) The
purpose of a monitoring program is to ensure compliance with the mitigation measures
imposed as conditions of the project approval. (Ibid.)
The issues relating to mitigation measures raised in this appeal include the
deferred formulation and implementation of mitigation measures. The legal principles
governing these two types of delay are set forth in the part of this opinion addressing the
specific arguments raised by the parties.
B. Ordinance Provisions
In accordance with the provisions of CEQA and the Guidelines addressing
mitigation, the Ordinance (1) expressly made compliance with the adopted mitigation
measures a condition of permit approval and (2) included a mitigation monitoring and
reporting program. When an application is submitted to County for conformity review, it
must include “[w]ritten documentation in sufficient detail to allow the County to
determine that all conditions required in Section 19.98.060 will be complied with,
including all applicable mitigation measures as listed in the approved Mitigation
Monitoring and Reporting Program for the [Ordinance.]” (Ordinance,
§§ 19.98.080(E)(11), 19.98.085(F)(15).)20 Section 19.98.060 of the Ordinance sets forth
implementation standards and conditions for all oil and gas activities for which a permit
is sought. Among other things, “[t]he applicant shall demonstrate compliance with all
applicable Mitigation Measures as listed in the approved Mitigation Monitoring and
Reporting Program … for the [Ordinance.]” (Ordinance, § 19.98.060(D).) The
foregoing provisions in the Ordinance require compliance with the mitigation measures
adopted by the Board.
20 The program adopted by the Board is set forth in a 53-page exhibit attached to the
Board’s resolution adopting the Ordinance.
34.
C. Board Findings
The Board’s findings relating to water addressed the project’s impact on the
supply and recharge of groundwater and, more broadly, its impact on available water
supplies.
1. Groundwater
The Board found that, without mitigation, the project has the potential to
substantially deplete groundwater supplies or interfere with groundwater recharge. The
Board stated this impact would be mitigated to less than significant levels if sufficient
amounts of “produced water” otherwise subject to disposal could be treated and reused to
offset the consumption of M&I water. The Board found the feasibility of additional reuse
of produced water in the project area depended on several factors, “including produced
water quality, treatment costs and requirements, the availability of conveyance capacity
to route produced water to and from treatment facilities, and the availability of
institutional mechanisms for managing produced water treatment and distribution.” The
Board also found: “At present, the extent to which oilfield operators can increase
produced water reuse and decrease M&I demand is uncertain. As a result, potential
impacts to groundwater levels and aquifer volumes would be significant and unavoidable
with mitigation.” (Italics added.) In addition to this general finding, the Board
specifically addressed Mitigation Measures (MM) 4.17-2, 4.17-3 and 4.17-4, stating that
while the measures “would encourage the additional reuse of produced water, the extent
to which oilfield operators can increase produced water reuse and decrease M&I [water]
demand is uncertain. As a result, potential impacts to groundwater levels and aquifer
volumes would be significant and unavoidable with mitigation.” (Italics added.)
2. Water Supplies
The Board’s findings addressed another water-related impact by stating “[t]he
Project could cause significant impacts to existing water supply entitlements and
resources”; this impact “will be reduced with implementation of the feasible mitigation
35.
measures”; and the “measures cannot reduce this impact to a less than significant level.”
In the Board’s view, “CEQA requires that all feasible and reasonable mitigation be
applied to reduce the Project’s potential to cause significant impacts to existing water
supply entitlements and resources.” The feasible mitigation measures referred to in the
Board’s findings were MM 4.17-2, 4.17-3 and 4.17-4. The Board stated these measures
“will be incorporated into the Project to reduce its water supply impacts.” The Board
explained the inability to mitigate the impacts to less than significant levels by stating
“the allocation of water supplies and water demands, the complex laws affecting water
rights, the many water districts that have legal jurisdiction over one or more sources of
water in the Project Area, the varied technical feasibility of treating produced water, and
the produced water reuse opportunities, all present complex variables that fall outside the
scope of the County’s jurisdiction or control under CEQA.” The Board concluded:
“Because of significant ongoing regional uncertainties regarding water supplies, and the
need for agencies other than Kern County to take action to improve management of
regional water supplies to meet existing and reasonabl[y] foreseeable demand, Project
impacts to water supplies would remain significant and unavoidable.”
D. Contentions
Sierra Club contends the County violated CEQA by failing to adequately mitigate
the project water supply impacts. More specifically, Sierra Club contends the County
unlawfully deferred mitigation measures for the project’s significant impact on M&I
water by (1) adopting so-called mitigation measures that lacked specific, mandatory
performance criteria and (2) failing to implement mitigation measures before the oil and
gas activities began creating environmental impacts.
In response, Oil Associations contend MM 4.17-2, 4.17-3 and 4.17-4 will reduce
the use of M&I water and increase the reuse of treated produced water. Oil Associations
argue the measures need not include precise quantitative performance standards; and
36.
mitigation measures that are at least partially effective do not violate CEQA. In addition,
they contend the County did not improperly defer mitigation because, once project
activities began, the mitigation measures were in place as required by CEQA. As a final
point, Oil Associations contend Sierra Club’s claims fail because the County
acknowledged significant and unavoidable impacts to water supply and approved the
Ordinance based on a statement of overriding considerations.
E. Mitigation Measure 4.17-2
MM 4.17-2 addresses (1) the use of M&I (fresh) water and (2) the reuse of
produced water. Rather than imposing a single requirement, it contains a combination of
measures.
1. The First Sentence
The first sentence of MM 4.17-2 states: “Applicant shall increase the re-use of
produced water and shall reduce its use of municipal and industrial quality ground or
surface water to the extent feasible.” (Italics added.) The parties appear to have
interpreted “increase” to mean maximizing to the extent feasible the use of produced
water at the site and “reduce” to mean minimizing to the extent feasible the use of M&I
water. This interpretation avoids the problem a first-time applicant would face—
specifically, that applicant would have no established use of produced water or M&I
water to increase or reduce and, as a result, could not comply with the literal terms of the
measure.
The County’s mitigation monitoring and reporting program contains other
provisions relevant to this and other mitigation measures. The program identifies the
time frame for implementation of MM 4.17-2 as being during construction and operation.
The program’s “Steps to Compliance” for MM 4.17-2 state (1) the permit applicant “shall
implement measures as specified in the mitigation measure[]” and (2) the County’s
planning and community development department “will verify.”
37.
Sierra Club claims MM 4.17-2 fails to comply with CEQA because it unlawfully
defers the formulation of the mitigation measure. “Formulation of mitigation measures
should not be deferred until some future time.” (Guidelines, § 15126.4, subd. (a)(1)(B).)
Thus, as a general rule, “it is inappropriate to postpone the formulation of mitigation
measures.” (POET, LLC v. State Air Resources Bd. (2013) 218 Cal.App.4th 681, 735
(POET I).) However, the general rule is not absolute and “ ‘there are circumstances in
which some aspects of mitigation may appropriately be deferred.’ ” (Id. at p. 735.) For
instance, “measures may specify performance standards which would mitigate the
significant effect of the project and which may be accomplished in more than one
specified way.” (Guidelines, former § 15126.4, subd. (a)(1)(B).) In Endangered
Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777 (Endangered
Habitats), the Fourth District stated:
“ ‘Deferral of the specifics of mitigation is permissible where the local
entity commits itself to mitigation and lists the alternatives to be
considered, analyzed and possibly incorporated in the mitigation plan.
[Citation.] On the other hand, an agency goes too far when it simply
requires a project applicant to obtain a biological report and then comply
with any recommendations that may be made in the report. [Citation.]’
(Defend the Bay v. City of Irvine [(2004)] 119 Cal.App.4th [1261,] 1275.)
If mitigation is feasible but impractical at the time of a general plan or
zoning amendment, it is sufficient to articulate specific performance criteria
and make further approvals contingent on finding a way to meet them.
[Citation.]” (Endangered Habitats, supra, at p. 793.)
In POET I, we described the exception to the general rule against deferral by
stating “the deferral of the formulation of mitigation measures requires the agency to
commit itself to specific performance criteria for evaluating the efficacy of the measures
implemented.” (POET I, supra, 218 Cal.App.4th 738, italics added.) In POET I, we also
recognized the distinction between stating a generalized goal and adopting specific
performance criteria. (Id. at p. 740.) Simply stating a generalized goal for mitigating an
38.
impact does not allow the measure to qualify for the exception to the general rule against
the deferred formulation of mitigation measures.
In Gray v. County of Madera (2008) 167 Cal.App.4th 1099 (Gray), the project
proponent wished to develop a hard rock quarry and applied to the county for a
conditional use permit. (Id. at p. 1105.) The EIR concluded the project could cause the
water levels in adjacent private wells to decline during the operational life of the quarry.
(Id. at p. 1112.) A mitigation measure required monitoring of the wells and, if an impact
was found, the replacement of water for nonconsumptive use from existing wells on the
proponent’s property. As to consumptive use, the measure required the proponent to
“ ‘provide the affected party, or parties, with bottled water or potable water from some
other source that is verified to meet state and federal drinking water standards.’ ” (Ibid.)
On the question of improper deferral of the formulation of mitigation measures, the
proponent argued the county had committed to a mitigation goal of remedying the decline
in water levels in the private well and had listed various ways the problem could be
addressed. (Id. at p. 1118.) We concluded the county had not committed itself to a
specific performance standard and, as a result, did not qualify for the exception to the
general rule against deferral. (Id. at p. 1119.) We stated that “the County has committed
itself to a specific mitigation goal—the replacement of water lost by neighboring
landowners because of mine operations” and concluded the goal was not a specific
performance standard. (Ibid.)
Here, we conclude the requirement that applicants shall increase or maximize their
use of produced water and decrease or minimize their use of M&I water suffers from the
same defect as the measures in POET I and Communities for a Better Environment v. City
of Richmond (2010) 184 Cal.App.4th 70 (Better Environment-Richmond). In Better
Environment-Richmond, the “EIR merely proposes a generalized goal of no net increase
in greenhouse gas emissions and then sets out a handful of cursorily described mitigation
measures for future consideration.” (Id. at p. 93, italics added.)
39.
In POET I, the project was a statewide regulation containing low carbon fuel
standards. (POET I, supra, 218 Cal.App.4th at pp. 700–701.) Among other things, the
regulation created incentives for increased biodiesel production and use. (Id. at p. 704.)
The mitigation in question related to the potential increase in NOx emissions caused by
increased biodiesel production and use. (Id. at pp. 704–705.) In responding to public
comments, the lead agency stated that “it would ‘ensure that biodiesel fuel use does not
increase NOx emissions significantly by promulgating a new motor vehicle fuel
specification for biodiesel.’ ” (Id. at p. 705.) In POET I, this court relied on Gray and
Better Environment-Richmond to “conclude that ‘no increase in NOx’ is not a specific
performance criterion” and, therefore, the agency’s statement that its future rulemaking
would establish specifications to ensure there was no increase in NOx improperly
deferred the formulation of mitigation. (POET I, supra, 218 Cal.App.4th at pp. 739–
740.)
Applying the principles addressing the deferred formulation of mitigation
measures to MM 4.17-2’s requirement that applicants increase or maximize the reuse of
produced water and reduce or minimize the use of M&I water to the extent feasible, we
conclude it defers the formulation of the mitigation measures and lacks specific
performance standards. The deferral exists because the measures will not be determined
until the applicant requests a permit and receives an approval from the County. The
terms “increase” and “reduce”—even though preceded by the mandatory term “shall” and
modified by the phrase “to the extent feasible”—are not specific performance standards.
Feasible means capable of being accomplished in a successful manner within a
reasonable time, taking into account various factors. (§ 21061.1; Guidelines, § 15364.)
It addresses whether a measure would be employed, but does not address the performance
of the measure. In other words, it does not provide a standard relating to performance for
any increase in use of produced water or reduction use of M&I water.
40.
Viewed from a broad perspective, our conclusions about the deficiencies of the
measure contained in the first sentence of MM 4.17-2 can be characterized as the
interpretation and application of CEQA. A basic principle of statutory construction states
that when the meaning of statutory language is uncertain, courts should consider the
consequences that will flow from a particular interpretation. (Dyna-Med, Inc. v. Fair
Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387; see Weatherford v. City of
San Rafael (2017) 2 Cal.5th 1241, 1252.) Applying that principle here, we consider the
consequences that would flow from establishing precedent stating (1) CEQA compliance
is achieved by a mitigation measure that requires a permit applicant to reduce or offset
(i.e., mitigate) a particular environmental impact to the extent feasible and (2) more
specifically, such a measure does not impermissibly defer the formulation of mitigation.
If such a measure satisfied CEQA, lead agencies and project proponents—aware of this
precedent—would have little incentive to define the mitigation measures for other
projects in more specific terms. Instead, the planning documents or ordinance adopted by
local governments would simply say permit applicants must adopt all feasible mitigation
measures for a list of significant environmental impacts. Allowing such an approach
would undermine CEQA’s purpose of “systematically identifying … feasible mitigation
measures which will avoid or substantially lessen such significant effects” (§ 21002) and
having EIR’s provide “a detailed statement” of the “[m]itigation measures proposed to
minimize the significant effects on the environment.” (§ 21100, subd. (b)(3).)
To summarize, the first sentence of MM 4.17-2 does not qualify for the exception
allowing the deferred formulation of mitigation measures. As a result, it violates
CEQA’s general rule against the deferred formulation. However, it does not
automatically follow that the adoption of that portion of MM 4.17-2 constitutes a
prejudicial abuse of discretion. The County and Oil Associations have argued that other
aspects of the EIR and the Board’s findings (particularly, the adoption of a statement of
overriding considerations) prevent the adoption of MM 4.17-2 through MM 4.17-4 from
41.
being an abuse of discretion warranting the issuance of a writ of mandate. These
arguments are addressed after our analysis of each of the mitigation measures. (See pt.
IV.H., post.)
2. Biggest User Provisions
The remainder of MM 4.17-2 provides:
“By the end of 2016, the Applicants shall work with the County to review
water use data submitted to Division of Oil Gas and Geothermal Resources
under Senate Bill 1281 and identify the five biggest oil industry users of
municipal and industrial water by volume. The five biggest oil industry
users of municipal and industrial water shall work together to develop and
implement a plan identifying new measures to reduce municipal and
industrial water use by 2020. The plan shall address the following
activities, as appropriate: steam generation; drilling and completions
(including hydraulic fracturing); dust control; compaction activities related
to construction; and landscaping. Through the KernFLOWS initiative or
other efforts (e.g., Groundwater Sustainability Agency), the five biggest oil
industry users of municipal-and-industrial water shall also work with local
agricultural producers and water districts to identify new opportunities to
increase the use of produced water for agricultural irrigation and other
activities, as appropriate. Any produced water treated and used for
agricultural irrigation or other activities shall be tested and monitored to
assure compliance with applicable standards for such agricultural irrigation
or other uses.”
To the extent the plan to be developed by the five biggest oil industry users of
M&I water is regarded a mitigation measure, there is no question its formulation was
deferred. Consequently, we consider whether the plan falls within the exception to the
general rule against deferred formulation of mitigation measures. The exception requires
the County, as lead agency, to commit itself to specific performance criteria for
evaluating the efficacy of the measures implemented. (POET I, supra, 218 Cal.App.4th
738.)
We conclude the measure does not qualify for the exception. First, MM 4.17-2
lacks specific performance standards for the “plan identifying new measures to reduce
municipal and industrial water use by 2020.” Second, nowhere in MM 4.17-2 did the
42.
County commit itself to the measures ultimately included in the plan. Instead, the
measure states the five biggest oil industry users of M&I water “shall work together to …
implement a plan.” Thus, implementation was assigned to unidentified third parties—
parties that may or may not agree to participate in the task and, if they do participate, may
or may not act in good faith. Furthermore, assuming the five biggest oil industry users
successfully develop the plan and are able to implement it, the County did not commit
itself to adopting the plan and requiring applicants for permits to comply with the plan’s
measures. Consequently, the provision relating to M&I water does not include the
commitment necessary to qualify for the exception allowing deferred formulation of
mitigation measures.
Similarly, the provision in MM 4.17-2 requiring the five biggest users of M&I
water to work with local agricultural producers and water districts “to identify new
opportunities” to use produced water also lack specific performance standards and
commits no one to adopting or implementing anything to take advantage of those
opportunities. The absence of specific performance criteria and a commitment by the
County leads to the conclusion that the provisions in MM 4.17-2 relating to the five
biggest oil industry users of M&I water are not “fully enforceable through permit
conditions, agreements, or other legally-binding instruments.” (Guidelines, § 15126.4,
subd. (a)(2).)
In addition to the deferred formulation and related lack of enforceability, the
provisions in MM 4.17-2 relating to the five biggest oil industry users of M&I water
suffer from another defect—delayed implementation. The Ordinance became effective
on December 9, 2015. Yet, any measures prescribed by the plan would not be
implemented until sometime in 2020. Consequently, the Ordinance and MM 4.17-2
allowed permits for oil and gas activity to be issued (and wells to be drilled) without
being subject to the measures contained in the plan. The delayed implementation of
43.
mitigation measures is a type of delay distinct from deferred formulation. 21 In POET I,
we noted this distinction and addressed delayed implementation by stating that “[o]nce
the project reaches the point where activity will have a significant adverse effect on the
environment, the mitigation measures must be in place.” (POET I, supra, 218
Cal.App.4th at p. 738.) The relevant “activity” under the Ordinance is the oil and gas
activity described in a permit application. Here, the plan mentioned in MM 4.17-2 was
not in place when permits began to be issued and oil and gas activity commenced.
Consequently, the plan clearly violates the principle against the delayed implementation
of mitigation measures.
3. Identity of Who Tests Produced Water
Sierra Club also challenges the last sentence of MM 4.17-2, which states that any
produced water treated and used for agricultural irrigation or other activities “shall be
tested and monitored to assure compliance with applicable standards for such agricultural
irrigation or other uses.” Sierra Club contends the measure does not identify who will
test and monitor compliance. This argument is similar to one rejected by the Supreme
Court in Sierra Club v. County of Fresno, supra, 6 Cal.5th 502. There, a mitigation
measure required the selection and planting of trees to shade paved areas of the
development and did not identify who would select the trees. Relying on inferences, the
court stated it seemed clear the selector would be the person submitting the plans to the
county for approval and concluded the measure was not vague. (Id. at p. 526.)
21 For example, when a proposed project involves a large development, mitigation
measures not finalized at the environmental review stage might be in place before ground
is broken and construction begins. In such a case, only the formulation of the mitigation
measure was delayed as the final measure would be applied to the construction. In
contrast, if the construction activity began before the measure was finalized, there would
be no measure restricting the activity and its impacts. This would be a case of delayed
implementation.
44.
Here, the question is easily resolved because the record provides an explicit
answer and we need not rely on inferences. The monitoring and reporting program states
the permit applicant “shall implement measures as specified in the mitigation
measure[ ].” Consequently, the persons responsible for the testing and oversight to
assure compliance with the standard for irrigation water has been identified as the permit
applicant. The second level of responsibility is established by the provision stating the
County’s planning and community development department “will verify” the applicant’s
compliance.
Also, the reference to “applicable standards” for the use of produced water does
not render the measure impermissibly vague. In Oakland Heritage Alliance v. City of
Oakland (2011) 195 Cal.App.4th 884, the First District stated, “a condition requiring
compliance with regulations is a common and reasonable mitigation measure, and may be
proper where it is reasonable to expect compliance.” (Id. at p. 906.) Here, Sierra Club
has not shown it is unreasonable to expect compliance. Therefore, we conclude the
reference to applicable standards for produced water does not violate CEQA.
F. Mitigation Measure 4.17-3
1. Text of Provision
MM 4.17-3 addresses the use of water produced from oil and gas activities. It
provides in full:
“In the County’s required participation for the formulation of a
Groundwater Sustainability Agency, the Applicant shall work with the
County to integrate into the Groundwater Sustainability Plan for the Tulare
Lake-Kern Basin, best practices from the oil and gas industry to encourage
the re-use of produced water from oil and gas activities, and (with
appropriate treatment) to produce new water supplies for other uses such as
agricultural irrigation and groundwater recharge. The produced water re-
use goal is 30,000 acre-feet per year, which would offset more than the
current use of imported water and groundwater from non-oil bearing zones
by the oil and gas industry.” (Italics added.)
45.
The mitigation monitoring and reporting program contains a box labeled “Time
Frame for Implementation.” The box for MM 4.17-3 states: “Provide with Application
Package; During construction and operation.” The “Steps to Compliance” for MM 4.17-
3 are the same as the steps for MM 4.17-2. The permit applicant “shall implement
measures as specified in the mitigation measure[]” and the County’s planning and
community development department “will verify.”
2. Failures to Comply with CEQA’s Requirements
Sierra Club challenges MM 4.17-3 on several grounds. Sierra Club contends “best
practices” is a subjective and imprecise term that lacks enforceability. Also, Sierra Club
contends the “goal” of re-using 30,000 acre-feet of produced water is not a commitment
to a specific performance standard. Sierra Club supports this contention by referring to
the EIR, which states “the extent to which the G[roundwater Sustainability Plan] process
could be used to enhance produced water reuse in the Project Area is uncertain.” More
generally, the EIR stated “[t]he extent to which oilfield operators can feasibly increase
produced water reuse and decrease M&I demand is uncertain.” Sierra Club also contends
MM 4.17-3 does not identify what, if anything, individual applicants must contribute to
the aggregate goal.
We conclude MM 4.17-3 does not comply with the requirements CEQA imposes
on mitigation measures. According to the EIR, the groundwater sustainability plan
mentioned must be adopted by January 31, 2020. Thus, the EIR and MM 4.17-3 referred
to a nonexistent plan intended to be adopted over four years later. As a result, MM 4.17-
3 and the groundwater sustainability plan violated the general rule against the deferred
formulation of mitigation measures. Furthermore, the exception to this general rule does
not apply because the County did not commit itself to specific performance criteria.
While the goal of reusing 30,000 acre-feet per year of produced water is specific, it is
merely a goal and not a commitment that third parties could enforce in “in a court
46.
mandamus proceeding.” (Sierra Club v. County of Fresno, supra, 6 Cal.5th at p. 526.)
Moreover, drilling and construction activity authorized by permits issued under the
Ordinance is being undertaken before the plan is finalized, which is contrary to the
principle prohibiting delayed implementation. (See POET I, supra, 218 Cal.App.4th at p.
738.)
G. Mitigation Measure 4.17-4
1. Text of Provision
Impact 4.17-4 in the EIR addresses the water supplies available to serve the
project from existing entitlements and resources. The EIR concludes these supplies are
not sufficient and new or expanded entitlements would be needed. Addressing this
impact, MM 4.17-4 states in full:
“The Applicant shall work with the County on the Groundwater
Sustainability Plan to increase Applicant use of reclaimed water and reduce
the Applicant’s use of municipal-and-industrial quality imported surface
water or groundwater. The Applicant will provide copies of water use
reports produced under SB 1281 to the Groundwater Management Agency,
which will then integrate this information into the Groundwater
Sustainability Plan required under the Sustainable Groundwater
Management Act.”
The mitigation monitoring and reporting program identifies the time frame for
implementation of MM 4.17-4 by stating: “Provide with Application Package; During
construction and operation.” As with both MM 4.17-2 and MM 4.17-3, the “Steps to
Compliance” state (1) the permit applicant “shall implement measures as specified in the
mitigation measure[]” and (2) the County’s planning and community development
department “will verify.”
2. Failures to Comply with CEQA’s Requirements
The first sentence of MM 4.17-4 is similar to the first sentence contained in MM
4.17-2, which stated the applicant “shall increase the re-use of produced water, and
reduce its use of [M&I] water.” Instead of using “increase” and “reduce” as action verbs,
47.
MM 4.17-4 requires the applicant to “work with the County on the Groundwater
Sustainability Plan” to attain increases and reductions. As stated in our discussion of
MM 4.17-3, to the extent the groundwater sustainability plan is considered a mitigation
measure, it violates the general rule against deferred formulation and does not qualify for
the exception to the general rule because the County did not commit itself to specific
performance standards. (See Guidelines, § 15126.4, subd. (a)(1)(B) [deferred
formulation].) Also, it violates the principle prohibiting delayed implementation. (POET
I, supra, 218 Cal.App.4th at p. 738.)
The foregoing conclusions about MM 4.17-2 through 4.17-4 are consistent with
the statement in Endangered Habitats about mitigation measures adopted for a zoning
amendment. The court stated that if mitigation is feasible but it is impractical to define in
specific terms at the time of a zoning amendment, “it is sufficient to articulate specific
performance criteria and make further approvals contingent on finding a way to meet
them.” (Endangered Habitats, supra, 131 Cal.App.4th at p. 793; see Sacramento Old
City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1028–1029.) In this case, MM
4.17-2 through 4.17-4 do not contain specific performance criteria and make the approval
of permit applications contingent on finding a way to meet those performance standards.
Accordingly, MM 4.17-2 through 4.17-4 do not satisfy these and other requirements
CEQA imposes on mitigation measures.
H. Consequences of Defects in Mitigation Measures
The parties disagree about the consequences that flow from the failure of MM
4.17-2 through 4.17-4 to satisfy the requirements CEQA imposes on mitigation measures.
In its broadest terms, the issue could be cast as whether failures of the mitigation
measures to comply with CEQA’s requirements “constitute a prejudicial abuse of
discretion.” (§ 21005, subd. (a).) There is no presumption that noncompliance with
CEQA is prejudicial. (§ 21005, subd. (b).)
48.
The prejudice inquiry would be relatively straightforward if the County had relied
on MM 4.17-2 through 4.17-4 to find the project’s significant effects on water supply had
been mitigated to less than significant levels. Had that been the case, the failures of the
measures to comply with CEQA’s requirements would have constituted reversible error.
(E.g., Better Environment-Richmond, supra, 184 Cal.App.4th at pp. 78, 90–91 [EIR
stated all project impacts would be reduced to less than significant levels by mitigation
measures; improper deferral of greenhouse gas mitigation measures resulted in reversal
and remand].) Here, the County did not find the impacts on water supply would be
mitigated to less than significant levels. Consequently, our inquiry into prejudice is more
detailed.
1. Contentions
Oil Associations note “the County concluded that the effectiveness of MMs 4.17-
2, 4.17-3 and 4.17-4 was uncertain, found water supply impacts to be significant and
unavoidable, and approved the Project based on overriding economic and other benefits.”
(Fn. omitted.) Oil Associations contend CEQA does not require the adoption of
additional mitigation measures when a lead agency (1) finds all feasible mitigation has
been adopted, (2) makes an informed decision that an impact is still significant and
unavoidable, and (3) adopts a statement of overriding considerations. Oil Associations
support their claim that all feasible mitigation measures have been adopted by asserting
Sierra Club “has not suggested any mitigation measure to feasibly mitigate water supply
impacts to a less-than-significant level.” They address the sufficiency of the disclosures
in the EIR by stating Sierra Club “does not claim the County failed to ‘fully disclose’
Project impacts.”
Sierra Club responds by contending the County’s adoption of a statement of
overriding considerations did not cure its unlawful deferral of mitigation. Sierra Club
also contends the EIR is analytically deficient because it “neglects to address how and to
49.
what degree water supply mitigation is feasible because it generically instructs applicants
to do what is ‘feasible’ (MM 4.17-2 … ) but defers the formulation of specific measures
to a future, uncertain planning process.”
2. Measures of Uncertain Effect—Issues and Our Legal Conclusions
The Board’s findings addressed MM 4.17-2, 4.17-3 and 4.17-4 by stating that
while the measures “would encourage the additional reuse of produced water, the extent
to which oilfield operators can increase produced water reuse and decrease M&I [water]
demand is uncertain.” This finding and the contentions of the parties raise the following
legal question: Does CEQA allow a lead agency to adopt measures of uncertain
effectiveness and label them mitigation measures? We conclude the answer is “yes,”
provided (1) the lead agency has made certain findings, (2) the lead agency has adopted a
statement of overriding considerations and (3) the EIR satisfies certain requirements.
The lead agency must find (1) the measures are at least partially effective, (2) all
feasible mitigation measures have been adopted, and (3) the environmental impacts will
not be mitigated to less than significant levels. The findings must be supported by
substantial evidence. (§ 21168.5.)
Partial effectiveness is necessary for the measure to be labeled a “mitigation
measure.” While the extent of the mitigation may be uncertain, there must be some
reductions or offsets for the label “mitigation measure” to be accurate. The partial
effectiveness requirement is derived from the mandatory language in our Supreme
Court’s statement that “[m]itigation measures need not include precise quantitative
performance standards, but they must be at least partially effective, even if they cannot
mitigate significant impacts to less than significant levels.” (Sierra Club v. County of
Fresno, supra, 6 Cal.5th at p. 523, italics added.)
The need for a finding that all feasible mitigation has been adopted (when impacts
have not been mitigated to less than significant levels) is not a disputed issue in this case.
50.
The Board’s findings repeatedly state “CEQA requires that all feasible and reasonable
mitigation be applied to reduce the Project’s [significant] impacts” to the environment.
This statement is based on the provisions in section 21081 stating no public agency shall
approve a project with significant effects on the environment unless specific requirements
are met. The agency must find (1) changes or alterations in the project have been
required to mitigate or avoid the significant environmental effects; (2) another agency has
jurisdiction and responsibility over the adoption of such changes or alteration; or (3)
“[s]pecific economic, legal, social, technological, or other considerations, including
considerations for the provision of employment opportunities for highly trained workers,
make infeasible the mitigation measures or alternatives identified in the environmental
impact report.” (§ 21081, subd. (a).) If the agency makes the latter infeasibility finding,
the project can be approved only if “the public agency finds that specific overriding
economic, legal, social, technological, or other benefits of the project outweigh the
significant effects on the environment.” (§ 21081, subd. (b).) These provisions are
summarized in the principle that an agency must have adopted all feasible mitigation
measures before approving a project with significant environmental effects based on
overriding considerations.
Other requirements related to the adoption of mitigation measures of uncertain
effectiveness address the contents of the EIR and whether its disclosures and analysis of
the mitigation measures are adequate. The EIR’s discussion must justify the adoption of
mitigation measures of uncertain effect and support the adoption of the statement of
overriding considerations. To do so, the EIR must (1) describe the mitigation measures
that are available (i.e., currently feasible) and (2) identify and explain the uncertainty in
the effectiveness of those measures.
The requirement for a description of the mitigation is based on the general rule
that “an EIR is required to provide the information needed to alert the public and the
decision makers of the significant problems a project would create and to discuss
51.
currently feasible mitigation measures.” (Sierra Club v. County of Fresno, supra, 6
Cal.5th at p. 523.) The discussion provided must contain facts and analysis, rather than
the agency’s bare conclusions or opinions. (Id. at p. 522.) Whether the facts and analysis
included in the EIR’s discussion of currently feasible mitigation measures are sufficient
to comply with CEQA depends on “whether the EIR includes enough detail ‘to enable
those who did not participate in its preparation to understand and to consider
meaningfully the issues raised by the proposed project.’ [Citations.] The inquiry
presents a mixed question of law and fact. As such, it is generally subject to independent
review.” (Sierra Club v. County of Fresno, supra, at p. 516.) However, when factual
questions predominate, review under the more deferential substantial evidence standard is
warranted. (Ibid.)
Our conclusions that the EIR must identify and explain the uncertainty in the
effectiveness of the mitigation measures proposed is a specific application of the general
principles governing the discussion of mitigation measures. To fulfill its informational
role, an “EIR must contain facts and analysis” (Concerned Citizens of Costa Mesa, Inc. v.
32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 935). Uncertainty in the extent a
measure will be effective, as well as the reasons for that uncertainty, are important facts
that should be disclosed to the public and decision makers.
3. Application of Conclusions of Law to Facts of this Case
The foregoing conclusions of law identify the circumstances in which CEQA
allows a lead agency to adopt measures of uncertain effectiveness and label them
mitigation measures. The next step of our analysis is to determine if those circumstances
are present in this case.
First, we consider whether the Board found the mitigation measures were at least
partially effective. Having reviewed the findings, we conclude the Board’s statements
about the effectiveness of the measures are not clear. The Board’s findings acknowledge
52.
CEQA requires all feasible mitigation be applied to the significant impacts to water
supply and then state: “Mitigation Measures MM 4.17-2 and MM 4.17-3, described
above, and MM 4.17-4, described below, will be incorporated into the Project to reduce
its water supply impacts, but … [there are many] complex variables that fall outside the
scope of the County’s jurisdiction or control under CEQA.” Read in context, one of the
reasonable inferences drawn from this language is that MM 4.17-2 through MM 4.17-4
actually will reduce water supply impacts. In comparison, the Board found that “while
MM 4.17-2 through 4.17-4 would encourage the additional reuse of produced water, the
extent to which oilfield operators can increase produced water reuse and decrease M&I
demand is uncertain.” (Italics added.) This finding is ambiguous because it does not
address how applicants would react to the encouragement. In its findings relating to
overriding considerations, the Board stated: “12. Implementation of MM 4.17-2 to MM
4.17-4 could reduce water supply impacts, but … [there are] complex variables that fall
outside the scope of the County’s jurisdiction or control under CEQA.” (Italics added.)
The use of the word “could” suggests the possibility of reductions without eliminating the
possibility there might not be any reductions. Stated another way, it is not a finding that
reductions actually will occur and only the amount is uncertain (i.e., not reasonably
foreseeable and, therefore, not subject to being forecasted). (See Guidelines, §§ 15144
[forecasting], 15145 [speculation].)
In summary, the Board’s findings are ambiguous on the question of whether MM
4.17-2 through 4.17-4 will be at least partially effective in reducing the project’s
significant water supply impacts. For purposes of this appeal, we need not adopt an
interpretation that resolves the ambiguity; it is described here so the County can avoid
repeating it in any proceedings it conducts on remand. (See § 21168.9, subd. (c).)
Second, we consider whether the Board found all feasible mitigation measures had
been adopted. The Board did not make this finding explicit, but it is reasonably implied
from the statements made in the Board’s findings. The Board acknowledged CEQA
53.
required all feasible mitigation be applied to the significant impacts to water supply and
then discussed MM 4.17-2 through 4.17-4. Reading these statements together, they are
reasonably interpreted as a finding that all feasible mitigation measures for water supply
impacts had been adopted.22
Third, we turn from the Board’s findings to the content of the EIR and address
whether the EIR identified and explained the uncertainty in the effectiveness of the
mitigation measures. The EIR qualified the ability of MM 4.17-2 through MM 4.17-4 to
reduce water supply impacts by stating:
“[B]ut the allocation of water supplies and water demands, the complex
laws affecting water rights, the many water districts that have legal
jurisdiction over one or more sources of water in the Project Area, the
varied technical feasibility of treating produced water, and the produced
water reuse opportunities all present complex variables that fall outside the
scope of the County’s jurisdiction or control under CEQA. The County
concludes that other agencies can and should cooperate in water
management planning and implementation actions under the Sustainable
Groundwater Management Act and other applicable laws to improve the
quantity and reliability of water supplies in the Project Area. Because of
significant ongoing regional uncertainties regarding water supplies, and the
need for agencies other than Kern County to take action to improve
management of regional water supplies to meet existing and reasonabl[y]
foreseeable demand, cumulative impacts to water supplies would remain
significant and unavoidable.”
In addition, the EIR stated “[t]he extent to which oilfield operators can feasibly
increase produced water reuse and decrease M&I demand is uncertain.” Accordingly, the
EIR discusses, in a general way, the causes of the uncertainty about the extent to which
the mitigation measures actually would reduce water supply impacts. The lack of
specificity in this discussion is related to the lack of specific information about the
measures applicants will implement to reduce water supply impacts, such as the
technology and techniques that will be used.
22 Whether the record supports this finding is a separate question addressed below.
54.
Fourth, we consider whether the EIR adequately described the currently feasible
mitigation measures for the significant water supply impacts. As explained below, we
conclude the discussion is inadequate and, therefore, the EIR fails to comply with CEQA.
“[A]n EIR is required to provide the information needed to alert the public and the
decision makers of the significant problems a project would create and to discuss
currently feasible mitigation measures.” (Sierra Club v. County of Fresno, supra, 6
Cal.5th at p. 523.) To fulfill the EIR’s informational role, the discussion of the mitigation
measures must contain facts and analysis, not bare conclusions and opinions. (Id. at p.
522.) The level of detail CEQA requires in the EIR’s discussion of facts and analysis of
the mitigation measures depends on “whether the EIR includes enough detail ‘to enable
those who did not participate in its preparation to understand and to consider
meaningfully the issues raised by the proposed project.’ ” (Sierra Club v. County of
Fresno, supra, at p. 516.) Here, the EIR provides no information about what applicants
will (or might) do at the site covered by a permit to minimize the use of M&I water and
maximize the reuse of produced water. Nothing is said about technologies and
techniques for achieving the general goals relating to water use. The gaps in the
information provided by the EIR are made more confounding by its statement about the
“complex variables that fall outside the scope of the County’s jurisdiction or control
under CEQA.” Even if particular technologies and techniques had been identified and
described in the EIR, this statement leaves the reader wondering if an applicant would be
required to commit to any measures in its application or, alternatively, whether the
applicant could omit those measures from its application because they were beyond the
County’s authority or control.23 Accordingly, the level of detail provided in the EIR
23 The lack of information about what might occur at a well site to reduce impacts
also demonstrates the Board’s implied finding that all feasible mitigation measures
relating to the project’s significant water supply impacts had been adopted is not
supported by substantial evidence. It is unclear if any mitigation will be imposed during
the permitting process.
55.
about mitigation for the significant water supply impacts fails to enable the public and
decision makers to understand and consider meaningfully the issues relating to water
supply impacts and mitigating those impacts.
This “noncompliance with the information disclosure” requirements of CEQA
“preclude[d] relevant information from being presented to the public agency” and the
public. (§ 21005, subd. (a).) It constitutes a prejudicial violation of CEQA by itself and
supports the conclusion that the failure of the mitigation measures to comply with the
general rules against deferred formulation was prejudicial.
4. Statement of Overriding Considerations
Next, we consider Oil Associations’ argument that the Board’s adoption of a
statement of overriding considerations redresses the problems associated with the
uncertain effectiveness of the mitigation measures. Oil Associations’ argument invokes
the principle that, “ ‘to the extent significant impacts remain after mitigation, the agency
may still approve the project with a statement of overriding considerations.’ ” (Sierra
Club v. County of Fresno, supra, 6 Cal.5th at p. 525.)
The argument is easily resolved because Oil Associations have assumed the EIR
was adequate as an informational document. The Board’s adoption of the statement of
overriding considerations was based on the EIR, which omitted information necessary to
understanding both the mitigation measures and the water supply impacts being
overridden. This deficiency in the information provided prevents the adoption of the
statement from curing the defects in the mitigation measures or rendering them
nonprejudicial. Instead, the informational deficiency undermines the foundation upon
which the statement of overriding considerations rests. Consequently, the defects in the
EIR’s discussion of mitigation measures must be remedied and a revised EIR considered
by the Board before it adopts any statement of overriding consideration.
56.
V. AIR QUALITY IMPACTS*
A. Mitigation Measures
The draft EIR addressed the air quality impacts by finding the adoption of the
Ordinance would generate cumulatively significant emissions of oxides of nitrogen
(NOx), reactive organic gases (ROGs), and particulate matter of 10 microns or less in
diameter and, therefore, feasible mitigation was required for approval of the Ordinance.
Mitigation of these emissions was addressed in MM 4.3-1 through 4.3-4 and 4.3-8.
Under MM 4.3-1, stationary sources of emissions, such as a new facility or equipment
must obtain an authority to construct and permit to operate from Air District, which will
require compliance with its requirements, including Air District Rule 2201. Rule 2201
requires all emissions greater than two pounds per day to be offset at a ratio of greater
than 1:1. MM 4.3-2 requires the applicant to implement a fugitive dust control plan in
compliance with Air District regulations. MM 4.3-3 sets engine standards and limits
idling of off-road construction equipment. MM 4.3-4 sets requirements for on-road
heavy-duty diesel haul vehicles.
The final EIR described MM 4.3-8 by stating it “requires applicants to pay an air
emission mitigation fee, or alternatively to undertake direct emissions reductions to fully
offset new emission increases not already required to be offset under [Air District] rules,
including emissions from permitted equipment that is not subject to the emission offset
requirement.” MM 4.3-8 states:
“For criteria emissions not required to be offset under a District rule as
described in MM 4.3-1, and for Project vehicle and other mobile source
emissions, the County will enter into an emission reduction agreement with
the San Joaquin Valley Air Pollution Control District, pursuant to which the
Applicant shall pay fees to fully offset Project emissions of oxides of
nitrogen, reactive organic gases, and particulate matter of 10 microns or
less in diameter (including as applicable mitigating for reactive organic
gases by additive reductions of particulate matter of 10 microns or less in
* See footnote, ante, page 1.
57.
diameter) (collectively, ‘designated criteria emissions’) to avoid any net
increase in these pollutants. The air quality mitigation fee shall be paid to
the County as part of the Site Plan review and approval process, and shall
be used to reduce designated criteria emissions to fully offset Project
emissions that are not otherwise required to be fully offset by District
permit rules and regulations.
“As an alternative to paying the fee, an Applicant may reduce emissions for
one or more designated criteria emissions through actual reductions in air
emissions from other Applicant sources, as submitted to the County and
validated by the District. This Project offset requirement alternative shall
be enforced by the County and verified by San Joaquin Valley Air Pollution
Control District, and must be approved in advance by the San Joaquin
Valley Air Pollution Control District. If a voluntary emission reduction
agreement is not executed by the County and San Joaquin Valley Air
Pollution Control District, then each Applicant must mitigate for the full
amount of designated criteria pollutants as verified by the San Joaquin
Valley Air Pollution Control District, with evidence of such District-
verified offsets presented as part of the Site Plan Conformity Review
application documentation.”
The third paragraph of MM 4.3-8 provides examples of feasible air emission
reduction activities that might be funded by the applicant’s fees or implemented by the
applicant. They include replacing or retrofitting diesel-powered stationary and mobile
engines, reducing emissions from public infrastructure, reducing water-related emissions
through water conservation and reclamation, and funding lower-emission equipment and
processes for schools, hospitals, local businesses, city facilities and County facilities.
The final EIR anticipated that the County and Air District would have an oil and
gas emission reduction agreement in place by the time the Board considered approving
the Ordinance and certifying the final EIR. This expectation was not met, since the
agreement between Air District and the County was not approved by the Air District’s
board until August 18, 2016—about nine months after the final EIR was certified.24
24 The Board approved the Ordinance and certified the final EIR in November 2015,
stating the Ordinance would take effect on December 9, 2015.
58.
The final EIR addressed comments to MM 4.3-8 relating to its enforceability,
whether it would produce emissions reductions necessary to offset the Ordinance’s
impacts, and whether it impermissibly deferred mitigation. The final EIR concluded the
measure (1) was enforceable, (2) would generate real, quantifiable emission reductions,
and (3) did not unlawfully defer mitigation because the mitigation fees would be paid
prior to approval of a permit. In the discussion provided to support these conclusions, the
final EIR stated: “If the applicant fails to either pay the fee or provide the necessary
validation of emissions reductions [by the Air District], the proposed site plan will be
disapproved.” It also stated that the Air District’s history of administering fees collected
under its indirect source rule and voluntary emission reduction agreements made it
reasonable to expect that the funds administered through the oil and gas emission
reduction agreement between the County and Air District would achieve effective
emission reductions to offset the project’s increases in emissions.
B. Feasible and Available Offsets under MM 4.3-8
Sierra Club’s first challenge to MM 4.3-8 asserts the County failed to assess
whether sufficient pollution-reducing activities were available and feasible to offset the
large volume of air pollution from new wells. Sierra Club contends the County simply
assumed pollution-reducing offset projects would be implemented in the future by Air
District or permit applicants even though comments pointed out the EIR failed to assess
whether enough pollution-reducing projects exist to offset the substantial increase in
emissions caused by the Ordinance.
This challenge appears to have two aspects. It could be claiming the discussion of
the feasibility of the mitigation measure was inadequate or insufficient and, therefore, did
not comply with CEQA. Alternatively, it could be claiming the finding that MM 4.3-8
was feasible is erroneous because it is not supported by substantial evidence.
59.
1. Adequacy of the EIR’s Discussion
Initially, we note that CEQA and the Guidelines do not explicitly require an EIR’s
discussion of a fee-based mitigation program to describe the availability of impact
reducing or offsetting projects. (See generally, § 21083.1 [interpretation of CEQA and
Guidelines].) Therefore, Sierra Club’s challenge does not involve a situation where the
EIR fails to discuss a matter that CEQA, the Guidelines or case law says must be
discussed.
Under general principles that govern whether an EIR’s discussion is adequate or
sufficient, reviewing courts consider “ ‘whether the EIR reflects a reasonable, good faith
effort to … identify and describe mitigation measures and alternatives.’ ” (City of Long
Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 898.) “The
determination whether a discussion [in an EIR] is sufficient is not solely a matter of
discerning whether there is substantial evidence to support the agency’s factual
conclusions. [¶] The ultimate inquiry … is whether the EIR includes enough detail ‘to
enable those who did not participate in its preparation to understand and to consider
meaningfully the issues raised by the proposed project.’ [Citations.] The inquiry
presents a mixed question of law and fact. As such, it is generally subject to independent
review.” (Sierra Club v. County of Fresno, supra, 6 Cal.5th at p. 516.) However, when
factual questions predominate, review under the more deferential substantial evidence
standard is warranted. (Ibid.)
Here, we conclude the inquiry into the adequacy or sufficiency of the EIR’s
discussion presents a mixed question of law and fact subject to our independent review.
In conducting this inquiry, we assess whether the EIR provides enough detail about MM
4.3-8 to enable decisionmakers and the public to understand and consider meaningfully
the feasibility of MM 4.3-8—the issue Sierra Club claims the County failed to assess.
Section 7.2, “Responses to Comments,” of the final EIR addressed MM 4.3-8 and
the oil and gas emission reduction agreement between the County and Air District at
60.
pages 7-185 through 7-212. Many of those pages contain tables estimating emissions and
emission reductions. One aspect of the fee-based mitigation program is described as
follows: “If the applicant fails to either pay the fee or provide the necessary validation of
emissions reductions, the proposed site plan will be disapproved.” In short, the fee must
be paid up front.
Whether the County and Air District would be able to spend the fees collected
from applicants was addressed by describing Air District’s experience in administering
air emission fees to achieve emission reductions. Based on this experience, the final EIR
stated it was reasonable to expect the administration of the fees collected to achieve
effective emission reduction. Based on the anticipated volume of fees, the final EIR
stated the magnitude of the funds offered economies of scale not previously available to
Air District in its other fee-based programs and addressed the expenditure of the funds by
stating “it is expected that the fund[s] will be able to advance larger projects requiring
substantially more capital than was available in the past.” In addressing the expenditure
of the fees paid by applicants, the final EIR made no attempt to identify specific projects
that could be funded during the period analyzed—that is, through the year 2035.
We conclude specific information about projects that might be funded in the future
is not required to enable persons reading the EIR to understand and consider
meaningfully the issues raised by MM 4.3-8. An objectively reasonable person reading
the EIR would realize the difficulty in predicting or estimating what will happen in the
future, including the opportunities for reducing emissions and the technology available to
achieve reductions. Bluntly stated, the reader would understand the EIR predicts Air
District will be able to identify opportunities and spend the funds in a manner that
achieves the required emission reductions. Contrary to Sierra Club’s arguments, this was
not an assumption. Moreover, Sierra Club has not established the County failed to
“disclose all that it reasonably can” about the future opportunities that might arise under
the fee-based mitigation program or the technologies that might be relevant to the
61.
existence of those opportunities. (Guidelines, § 15144 [when forecasting, an agency
must disclose all that it reasonably can]; see Guidelines §§ 15145 [speculation], 15146
[degree of specificity].) In sum, remanding with instructions for the County to provide a
more detailed description of the difficulties in forecasting the future opportunities
available would not significantly improve the EIR as an informative document.
2. Substantial Evidence Supports Feasibility Finding
Sierra Club might be challenging the finding that MM 4.3-8 is feasible on the
ground substantial evidence does not support a finding that future opportunities will be
available and will be adequate to offset the emissions from drilling wells and related
operations. “In applying the substantial evidence standard, ‘the reviewing court must
resolve reasonable doubts in favor of the administrative finding and decision.’ ” (Laurel
Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376,
393; see Guidelines, § 15384, subd. (a) [definition of substantial evidence].) Our
Supreme Court has described this standard as “deferential.” (Sierra Club v. County of
Fresno, supra, 6 Cal.5th at p. 516.)
Here, the EIR’s statements that MM 4.3-8 is enforceable and will generate real,
quantifiable emission reductions is the equivalent of a finding that it is “feasible.”
Moreover, the Board’s findings list it among the feasible and reasonable mitigation that
will reduce the emission of criteria pollutants. The EIR’s statements and the Board’s
findings contradict Sierra Club’s claim that the County failed to assess whether MM 4.3-
8 was feasible.
Next, we conclude the Board’s finding MM 4.3-8 is feasible is supported by
substantial evidence in the form of inferences reasonably drawn from (1) Air District’s
experience in administering fee-based emission reduction programs and (2) the amount of
funds that will be available, which will allow Air District to fund larger projects than it
could in the past. While other inferences could be drawn from the information provided
62.
in the EIR, we must resolve doubts in favor of the Board’s administrative finding. In
other words, even though information is not provided about the availability of future
emission-reducing projects that will be funded by the fees collected from applicants, the
other information in the EIR is sufficient to meet the deferential substantial evidence
standard.
C. Deferred Mitigation
Sierra Club contends MM 4.3-8 unlawfully defers mitigation of air quality impacts
by allowing significant polluting activities to begin without mitigation. Sierra Club relies
on statements by this court about (1) deferred formulation of mitigation measures and (2)
having the mitigation measures in place when the project’s impact causing activity goes
forward. (POET I, supra, 218 Cal.App.4th at pp. 734–741). In POET I, the plaintiffs
claimed the ARB impermissibly deferred its analysis and mitigation of potential increases
in NOx emissions caused by its adoption of a new statewide fuel regulation. (Id. at p.
731.) We described the general rule that it is inappropriate to postpone the formulation of
mitigation measures and the exception to this general rule. (Id. at pp. 734–738.) After
reviewing the case law, we identified two principles that were important to the issues
presented in POET I:
“First, the deferral of the formulation of mitigation measures requires the
agency to commit itself to specific performance criteria for evaluating the
efficacy of the measures implemented. Second, the ‘activity’ constituting
the CEQA project may not be undertaken without mitigation measures
being in place ‘to minimize any significant adverse effect on the
environment of the activity.’ (§ 21080.5, subd. (d)(3)(A).) In other words,
the deferral relates only to the formulation of mitigation measures, not the
mitigation itself. Once the project reaches the point where activity will
have a significant adverse effect on the environment, the mitigation
measures must be in place.” (POET I, supra, 218 Cal.App.4th at. p. 738.)
The mitigation issues presented in POET I are not identical to those presented by
Sierra Club’s contentions because MM 4.3-8 involves a fee-based program that funds
63.
measures to offset the project activity’s emissions. POET I did not address that kind of
mitigation measure.
1. Formulation of Mitigation Measure 4.3-8
On appeal, Sierra Club contends MM 4.3-8 relied upon the adoption of an oil and
gas emission reduction agreement between the County and Air District and the agreement
was not approved by Air District’s board until almost nine months after the Ordinance
was adopted and the EIR certified. Sierra Club asserts that during the year after the
Ordinance’s adoption, the County issued almost 1,200 new permits (which allowed
pollution generating activities to commence immediately) while it was still working with
Air District to set up processes for the transfer of mitigation fees and the selection of
pollution reducing projects. Sierra Club supports this assertion of fact by citing the
County’s 2016 Oil and Gas Permitting Program Annual Progress Report and asking this
court to take judicial notice of the report.
The threshold question presented by Sierra Club’s contentions is whether this
court should take judicial notice of the County’s 2016 report and treat it as relevant to an
issue raised in this litigation. In Porterville Citizens for Responsible Hillside
Development v. City of Porterville (2007) 157 Cal.App.4th 885, this court rejected a
request to take judicial notice of documents not included in the administrative record,
stating:
“It is a fundamental CEQA precept that when assessing the adequacy of
CEQA compliance, [trial and appellate] courts review the environmental
documentation that actually was prepared and they assess the evidence that
actually was utilized in preparation of the environmental documentation
and presented to or considered by the decision makers when the challenged
determination was made.” (Id. at p. 890; see 2 Kostka, supra, § 23.73, pp.
23-85 to 23-86.)
Nearly four years later, this court, weary of CEQA appeals that included ill-
founded requests for judicial notice and motions to augment the record, attempted to
provide guidance to practitioners on how to preserve and present evidentiary issues in a
64.
CEQA appeal. (Madera Oversight Coalition, Inc. v. County of Madera, supra, 199
Cal.App.4th at p. 61.) We identified two basic categories of evidence—that which
belongs in the administrative record in accordance with the provisions of subdivision (e)
of section 21167.6 and that which is admissible as extra-record evidence. (Madera
Oversight, supra, at p. 62.) These two categories are important because they involve
different tests for admissibility. (Ibid.) According to our guidance, practitioners should
address whether an item is part of the administrative record pursuant to subdivision (e) of
section 21167.6 and, if not, then address its admissibility under the rules applicable to
extra-record evidence. (See 2 Kostka, supra, §§ 23.56-23.58, pp. 23-64 to 23-67.)
In this appeal, Sierra Club has ignored this guidance and has failed to identify the
test for admissibility it believes applies. Because the documents were generated after the
Board adopted the Ordinance and certified the EIR and, therefore, were not part of the
documentation prepared and considered by the Board, we infer Sierra Club believes it has
presented admissible extra-record evidence. In any event, like the appellants in Eureka
Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357,
Sierra Club has failed to show the materials submitted qualify for consideration by this
court under the rules governing the administrative record, the admissibility of extra-
record evidence, or the consideration of other evidence. (Id. at p. 367; see 2 Kostka,
supra, § 23.58, p. 23-67 [other evidence].) Consequently, we deny Sierra Club’s request
for judicial notice.
Based on the record properly before this court, we conclude MM 4.3-8 does not
violate CEQA based on deferred formulation. The text of the measure is set forth in the
EIR and the Board’s findings. The measure explicitly addressed the possibility that the
oil and gas emission reduction agreement between the County and Air District would not
be finalized when a permit application was presented. In that event, the “Applicant must
mitigate for the full amount of designated criteria pollutants as verified by the [Air]
District, with evidence of such District-verified offsets presented as part of the Site Plan
65.
Conformity Review application documentation.” Therefore, any delay in the approval of
the oil and gas emission reduction agreement did not amount to a failure to formulate a
mitigation measure because MM 4.3-8 took that possibility into account and provided an
alternate route for applicants to achieve the needed emission reductions prior to the
adoption of the oil and gas emission reduction agreement.
2. Lag in Realizing Emission Offsets
Sierra Club contends MM 4.3-8 does not mandate a schedule for air pollution
reduction and the EIR concedes there will be a lag between the activities that generate air
pollution and the implementation of pollution-offsetting mitigation measures. Based on
this contention, Sierra Club concludes the EIR unlawfully allows significant, harmful
impacts to occur before air pollution mitigation measures are in place. Sierra Club cites
POET I for the principle that “[o]nce the project reaches the point where activity will
have a significant adverse effect on the environment, the mitigation measures must be in
place.” (POET I, supra, 218 Cal.App.4th at p. 738.)
Based on Sierra Club’s contentions, we consider whether the lag in realizing
emission offsets, which is an admitted characteristic of the fee-based offset program
adopted by the County in MM 4.3-8, constituted an unlawful deferral of mitigation.25
We conclude it did not.
25 Sierra Club’s petition-complaint challenged the County’s compliance with CEQA
during the environmental review process. It did not allege the County and Air District
were implementing the air pollutants mitigation measures in a manner that contradicted
the discussion in the EIR and failed to provide the mitigation promised. Sierra Club
attempted to expand the scope of its claims below, but it does not appear Sierra Club
amended its petition-complaint to enforce the air quality mitigation measures in a manner
that comports with the discussion in the EIR. (See § 21081.6, subd. (b) [measures must
be fully enforceable].) Thus, claims seeking the enforcement of the mitigation measures
are beyond the scope of this litigation.
This opinion should not be construed as (1) holding the County is properly
monitoring and enforcing MM 4.3-8 or (2) preventing or approving Sierra Club seeking
66.
First, as stated earlier, the mitigation issues presented in POET I did not involve a
fee-based program that funded offsets to the emissions of the project. Accordingly, our
general statements about when mitigation measures must be in place did not address the
specific characteristics of fee-based programs that fund offsets.
Second, it is undisputed that fee-based programs are authorized by the Guidelines
and have been upheld by the courts. (See Guidelines, § 15130, subd. (a)(3); City of
Marina v. Board of Trustees of California State University, supra, 39 Cal.4th at p. 364
[“courts have found fee-based mitigation programs for cumulative impacts, based on fair-
share infrastructure contributions by individual projects, to constitute adequate mitigation
measures under CEQA”].) Therefore, fee-based programs provide a type of mitigation
that is acceptable under CEQA.
Third, we conclude the fact that a lag may exist between the time the applicant
pays its fees and the time those fees are used to fund a project that offsets the emissions
caused by the applicant’s activities does not necessarily constitute a violation of CEQA.
A mitigation measure may still be feasible and reasonable even where such a lag exists.
Here, the EIR acknowledged that there would be a lag for wells drilled immediately upon
approval of the conformity review because the emitting activity would occur in advance
of the offsetting emission reductions. The EIR discussed the lag and why an alternative
that would eliminate the lag was not recommended. This discussion resulted in the EIR
fulfilling its role as an informative document. Moreover, the EIR stated the lag was a
reason the Ordinance’s contribution to air quality was cumulatively significant.
Therefore, the EIR did not rely on MM 4.3-8 as a basis for concluding the Ordinance
would have no significant impact on air quality. In the circumstances presented by this
case, we conclude the fee-based program with its lag does not violate CEQA so long as it
leave to amend to pursue such a claim on remand. If Sierra Club moves for leave to
amend, the trial court should rule on the motion in the first instance.
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is reasonable and feasible. The feasibility of MM 4.3-8 and its reasonableness present
questions of fact. The Board’s resolution of those questions of fact is supported by
substantial evidence and, therefore, the adoption of MM 4.3-8 does not constitute an
abuse of discretion.
D. PM2.5
1. Background
The EPA and ARB have established federal and state health-based ambient air
quality standards for several different pollutants. These pollutants, which are commonly
referred to as “criteria pollutants” and include ozone, respirable particulate matter (i.e.,
PM10), and fine particulate matter (i.e., PM2.5). (See 40 C.F.R. Part 50 [national
primary and second ambient air quality standards].) ARB’s ambient air quality standards
for criteria pollutants and other pollutants equal or exceed federal standards. (See Cal.
Code Regs., tit. 17, §§ 70100–70201 [state ambient air quality standards].)
The San Joaquin Valley Air Basin does not meet the applicable federal or state
ambient air quality standards for PM2.5, PM10, and ozone precursors (i.e., oxides of
nitrogen, volatile organic compounds and carbon monoxide).26 Air District has
established thresholds of significance27 for the emission of these pollutants. The
26 For these pollutants, the San Joaquin Valley Air Basin is designated
“nonattainment”—the status assigned to “any area that does not meet (or that contributes
to ambient air quality in a nearby area that does not meet) the national primary or
secondary ambient air quality standard for the pollutant.” (42 U.S.C.
§ 7407(d)(1)(A)(i).) An area’s federal designation is reported in the EPA’s regulations.
(See 40 C.F.R. §§ 81.305 [attainment status designations for areas in California], 93.152
[definition of nonattainment area].)
27 A “threshold of significance” is defined in the Guidelines as “identifiable
quantitative, qualitative or performance level of a particular environmental effect, non-
compliance with which means the effect will normally be determined to be significant by
the agency and compliance with which means the effect normally will be determined to
be less than significant.” (Guidelines, § 15064.7, subd. (a).)
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thresholds are 15 tons per year for PM10; 15 tons per year for PM2.5; and 10 tons per
year for NOx. The EIR includes many tables setting forth various estimates of annual
emissions of these and other pollutants. For example, revised Table 4.3-27 provides total
estimated emissions from the project in tons per year for NOx, PM10, PM2.5 and three
other pollutants for the years 2012 through 2035. The estimated NOx emissions for 2019
was 11,188 tons—well above the 10-ton threshold of significance. All of the yearly
estimates for PM10 and PM2.5 exceeded 1,790 tons and 1,300 tons, respectively. As a
result, the Board found the construction activities and gas and oil operations that would
be authorized under the Ordinance would exceed Air District’s thresholds of significance.
The Board also made a finding of overriding consideration for the Ordinance’s
cumulatively considerable contribution to emissions of NOx, PM10, and PM2.5.
MM 4.3-8 refers to PM10 and does not address PM2.5 separately. The oil and gas
emission reduction agreement between the County and Air District stated the County and
Air District entered the agreement to assure implementation of mitigation measures “with
per well emission reductions in the amounts set forth in Exhibit C (EIR Table 3.4-32 for
NOx, ROG, and PM (including particulate matter that is less than 10 microns in size, and
the subset of 2.5-microns or less in size).”28 The agreement’s operative provisions use
the term “PM” and, thus, do not distinguish between PM10 and PM2.5.
2. Contentions
Sierra Club contends the EIR failed to adequately mitigate a significant increase in
PM2.5. In addition, Sierra Club contends (1) the EIR failed to explain the omission of
PM2.5 from MM 4.3-8 and (2) substantial evidence does not support an implied finding
that offsetting PM10 emissions would fully offset PM2.5 emissions. Sierra Club also
28 The reference to “Table 3.4-32” is a typographical error. Table 4.3-32 in the EIR
is titled: “Total Estimated per Well Emissions for Preliminary Considerations in OG-
ERA.” That table refers only to PM10. It is the only table in the response to comments
“Air-2” that does not list PM10 and PM2.5 separately.
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addresses the possibility that the County may have intended for PM2.5 and PM10 to be
separately analyzed and offset during the implementation of MM 4.3-8. Sierra Club
contends such an intent would not save MM 4.3-8 from violating CEQA because
mitigation is not valid unless it is enforceable, and it cannot be enforced if it is not
explicit.
Counsel for the County prepared responses to Sierra Club’s comments and sent
those responses to the Board in a letter dated November 8, 2015. In addressing the
comment that offsets should be required for permitted source emissions of PM2.5 that are
not otherwise required to be offset under Air District Rule 2201, the letter stated:
“PM2.5 emissions are a subset of PM10, for which offsets must be provided, and so need
not be addressed separately.”
On appeal, Oil Associations argue the EIR adequately mitigates for PM2.5
emissions via multiple pathways, directly and indirectly. With respect to direct
emissions, Oil Associations argue (1) PM2.5 is a key target of MM 4.3-1 through 4.3-4
and (2) MM 4.3-8 refers to PM10 because of Air District policy. As to MM 4.3-8’s
direct effect, Oil Associations set forth a multiple-step argument. First, PM2.5
constitutes only 35 percent of the project’s total estimated PM10 emissions. Second, the
record demonstrates almost all identified emission-reduction-agreement projects would
reduce PM2.5 far more than PM10. Third, based on these facts, it is reasonable to expect
that Air District would select emission reduction projects that directly offset most, if not
all, of the project’s PM2.5 emissions. Accordingly, Oil Associations conclude there is
substantial evidence in the record to support a finding that offsetting PM10 emissions
will offset PM2.5 emissions.
3. Distinguishing PM2.5 from PM10
The parties have cited, and we have located, no requirement in CEQA, the
Guidelines or case law stating air quality mitigation measures must address PM2.5
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separately from PM10.29 Consequently, we are presented with questions of first
impression that are answered by applying general principles.
First, the EPA and Air District have adopted ambient air quality standards that
address PM10 and PM2.5 separately. Second, Air District has adopted different plans for
PM10 and PM2.5. Its first PM2.5 plan was adopted by Air District’s board in April 2008
and was approved by ARB in May 2008. Air District’s second PM2.5 was adopted in
2012. Third, Air District has set separate thresholds of significance for PM2.5 and
PM10. A logical deduction from the foregoing facts is that the environmental impact of
the two categories of particulate matter are not the same. Otherwise, there would be little
reason for the two categories. The following hypothetical demonstrates this point.
Suppose that during a proposed project’s first year of operation it was estimated to emit
16 tons of PM2.5 and to emit 17 tons of PM10 that was larger than PM2.5. If the project
proponent were to enter into offset agreements that reduced PM10 that was larger than
PM2.5 by 30 tons in the first year, then the net particulate matter emissions for the first
year would be three tons, which is below the standard of significance for both PM10 and
PM2.5. However, the 16 tons of PM2.5 emissions would not have been offset and, under
Air District’s 15-ton per year threshold of significance for that air pollutant, one would
conclude that the project would have a significant adverse effect on air quality despite the
offsets of PM10.
4. Adequacy of the Discussion of Mitigation Measure 4.3-8 and PM2.5
Sierra Club challenges the adequacy of the EIR’s discussion of the effect of MM
4.3-8 on PM2.5, arguing the EIR fails to offer any explanation for the omission of PM2.5
from the measure. The respondents’ briefs of the County and Oil Associations do not
29 The only CEQA provision mentioning PM2.5 is section 21168.6.8, which was
adopted in 2018 to provide for expedited procedures for the construction of a sports
complex in Inglewood.
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directly address the adequacy of a discussion and explain how the EIR meets the
applicable legal standard.
The applicable legal standard asks, “whether the EIR includes enough detail ‘to
enable those who did not participate in its preparation to understand and to consider
meaningfully the issues raised by the proposed project.’ [Citations.] The inquiry
presents a mixed question of law and fact.” (Sierra Club v. County of Fresno, supra, 6
Cal.5th at p. 516.) In the context of this case, factual questions do not predominate and,
therefore, we conduct an independent review when applying this standard and
determining the adequacy of the discussion. (Ibid.) We conclude the EIR’s discussion is
legally inadequate because it did not provide enough information to enable
decisionmakers and the public to understand and consider meaningfully how
implementing MM 4.3-8 would impact PM2.5 emissions. Specifically, the EIR does not
(1) discuss the impact of the measure on PM2.5 emissions and (2) does not explain why
there is no separate discussion of PM2.5 emissions. Stated in statutory terms, the EIR
does not “include a detailed statement setting forth” how MM 4.3-8 proposes to mitigate
the significant effect on the environment of the project’s PM2.5 emissions. (§ 21100,
subd. (b)(3); see Guidelines, § 15126.4, subd. (a) [EIR discussion of mitigation
measures].)
The statement in the November 8, 2015, letter that “PM2.5 emissions are a subset
of PM10, for which offsets must be provided, and so need not be addressed separately” is
not a legally adequate explanation. The fact the smaller particulate matter is
encompassed by the category for larger particulate matter does not change the fact the
two categories are subject to separate federal and state ambient air quality standards and
separate thresholds of significance. Lumping them together would cause objectively
reasonable persons who did not participate in drafting the EIR to wonder why the
distinction was abandoned in MM 4.3-8 and the discussion of that measure. Without an
explanation of why the two categories were lumped together, the EIR is inadequate as an
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informative document. In addition, the fact that other mitigation measures treat PM2.5 as
a key target undermines any argument that it was “not scientifically feasible at the time of
drafting to provide” a measure in MM 4.3-8 that addresses PM2.5. (See Sierra Club v.
County of Fresno, supra, 6 Cal.5th at p. 527.)
5. Enforcing Mitigation Measure 4.3-8 to Offset PM2.5 Emissions
Sierra Club also challenges MM 4.3-8 on the ground it cannot be enforced to
require the offset of the project’s PM2.5 emissions. Section 21081.6, subdivision (b): “A
public agency shall provide that measures to mitigate or avoid significant effects on the
environment are fully enforceable through permit conditions, agreements, or other
measures.” Guidelines section 15126.4, subdivision (a)(2) states: “Mitigation measures
must be fully enforceable through permit conditions, agreements, or other legally-binding
instruments.”
Here, the County and Oil Associations predict that the implementation of
emission-offset projects under the fee-based mitigation program created under MM 4.3-8
will offset the PM2.5 emissions attributed to the Ordinance. Oil Associations argue
“there is substantial evidence in the record to support a conclusion that offsetting PM10
emissions will offset PM2.5 emissions.” Yet, the County and Oil Associations have not
described how the oil and gas emission reduction agreement between the County and Air
District could be enforced to require the offset of PM2.5 emissions. It is not possible to
interpret the oil and gas emission reduction agreement as providing a “fully enforceable”
mitigation measure for PM2.5 because that agreement treats PM2.5 as a subset of PM10
and, as a result, PM2.5 is not subject to any particular requirement. Therefore, we
conclude MM 4.3-8 and the related oil and gas emission reduction agreement between the
County and Air District does not provide enforceable mitigation of the project’s PM2.5
emissions. Because the emissions of PM2.5 exceed the threshold of significance, the
mitigation measures must address this air quality impact. Because MM 4.3-8 does not
This text is long and has been trimmed here. Open the source document for the complete record.