King & Gardiner Farms, LLC v. Cnty. of Kern

• Decision Date: 25 February 2020
• Docket Number: F077656
• Citation: 45 Cal.App.5th 814,259 Cal.Rptr.3d 109
• Court: California Court of Appeals Court of Appeals
• Parties: KING AND GARDINER FARMS, LLC, Plaintiff and Appellant, v. COUNTY OF KERN et al., Defendants and Respondents; California Independent Petroleum Association et al., Real Parties in Interest and Respondents. Committee for a Better Arvin et al., Plaintiffs and Appellants, v. County of Kern et al., Defendants and Respondents; California Independent Petroleum Association et al., Real Parties in Interest and Respondents.

45 Cal.App.5th 814

259 Cal.Rptr.3d 109

KING AND GARDINER FARMS, LLC, Plaintiff and Appellant,

v.COUNTY OF KERN et al., Defendants and Respondents;

California Independent Petroleum Association et al., Real Parties in Interest and Respondents.

Committee for a Better Arvin et al., Plaintiffs and Appellants,

v.County of Kern et al., Defendants and Respondents;

California Independent Petroleum Association et al., Real Parties in Interest and Respondents.

F077656

Court of Appeal, Fifth District, California.

Filed February 25, 2020

As Modified on Denial of Rehearing March 20, 2020

Certified for Partial Publication.^*

Shute, Mihaly & Weinberger, Rachel B. Hooper, Heather M. Minner, San Francisco, Kevin P. Bundy ; and Daniel P. Selmi, Los Angeles, 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, San Francisco, Marne S. Sussman, Daniel R. Golub, and Emily M. Lieban, San Francisco, for Defendants and Respondents.

Pillsbury Winthrop Shaw Pittman, Margaret Rosegay, Norman F. Carlin, and Blaine I. Green, San Francisco, for Real Party in Interest and Respondent Western States Petroleum Association.

Manatt, Phelps & Phillips, Craig A. Moyer, Los Angeles, and Keli N. Osaki, Costa Mesa, for Real Party in Interest and Respondent California Independent Petroleum Association.

FRANSON, Acting P.J.

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 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 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.

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).

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."

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...