V Lions Farming v. Cty. of Kern

• Docket Number: F084763,F085102,F085220
• Decision Date: 07 March 2024
• Citation: 318 Cal.Rptr.3d 879
• Parties: V LIONS FARMING, LLC, 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.
• Court: California Court of Appeals

318 Cal.Rptr.3d 879

V LIONS FARMING, LLC, 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.

F084763, F085102, F085220

Court of Appeal, Fifth District.

Filed March 7, 2024

Certified for Partial Publication.^*

APPEAL from a judgment of the Superior Court of Kern County. Gregory. A. Pulskamp, Judge. (Super. Ct. Nos. BCV-15-101845, BCV-15-101666, BCV-15-101679, BCV-21-100533, BCV-21-100536)

Shute, Mihaly & Weinberger, Rachel B. Hooper, Susannah T. French, San Francisco, Kevin P. Bundy, Tori B. Gibbons, and Daniel P. Selmi for Plaintiff and Appellant V Lions Farming.

Earthjustice, Colin C. O’Brien and Gregory D. Muren for Plaintiffs and Appellants Natural Resources Defense Council and Sierra Club.

Center on Race, Poverty & The Environment, Caroline Farrell and Daniel I. Ress for Plaintiffs and Appellants Committee for a Better Arvin, Committee for a Better Shafter, and Comité Progreso de Lamont.

Natural Resources Defense Council and Ann Alexander for Plaintiff and Appellant Natural Resources Defense Council.

Center for Biological Diversity and Hollin K. Kretzmann for Plaintiff and Appellant Center for Biological Diversity.

Margo A. Raison, County Counsel, Bakersfield, Andrew C. Thomson, Deputy County Counsel; Holland & Knight, Jennifer L. Hernandez, Bradley B. Brownlow, Marne S. Sussman, Daniel R. Golub, San Francisco, and Emily M. Lieban for Defendants and Respondents.

Pillsbury Winthrop Shaw Pittman, Blaine I. Green, Eric Moorman, San Francisco, and Mark E. Elliott, Los Angeles, for Real Party in Interest and Respondent Western States Petroleum Association.

Manatt, Phelps & Phillips, Craig A. Moyer, Benjamin G. Shatz, Los Angeles, and Sigrid R. Waggner for Real Party in Interest and Respondent California Independent Petroleum Association.

Environmental Law Clinic and Deborah A. Sivas for California Council of Land Trusts as Amici Curiae on behalf of Appellants.

Environmental Law Clinic, Deborah A. Sivas and Rica Garcia for David J.X. Gonzalez, Ph.D., Rachel Morello-Frosch, Ph. D., Jill Johnston, Ph.D., Mary Willis, Ph. D., Jonathan Buonocore, Ph.D., Joan A. Casey, Ph.D., and Lisa Mckenzie, Ph.D. as Amici Curiae on behalf of Appellants.

Frank G. Wells Environmental Law Clinic, Andria So, Cara Horowitz and Gabriel F. Greif for H. Bradley Shaffer as Amici Curiae on behalf of Appellants.

OPINION

FRANSON, Acting P. J.

This is the second appeal addressing whether the County of Kern¹ complied with the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.)² in approving an ordinance streamlining the permitting process for new oil and gas wells. (King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal. App.5th 814, 259 Cal.Rptr.8d 109 (King & Gardiner).) In the first appeal, we determined, the environmental impact report (EIR) was defective and ordered the issuance of a writ of mandate directing the County to correct those defects before reapproving the ordinance. (Id. at p. 901, 259 Cal.Rptr.3d 109.) The County prepared a revised supplemental recirculated environmental impact report (SREIR) and an addendum, certified the completion of the SREIR, and adopted a slightly modified ordinance. After the County filed a return, the superior court determined the CEQA violations had been corrected and discharged the writ. This appeal followed.

In the published part of this opinion, we consider whether an agricultural conservation easement (ACE) partially mitigates a conversion of agricultural land caused by the project. In King & Gardiner, supra, 45 Cal.App.5th 814, 259 Cal.Rptr.3d 109, we decided a narrow aspect of the efficacy of ACE’s as mitigation by concluding ACE’s were not effective at reducing the project’s conversion of agricultural, land to a less than significant level for purposes of CEQA. Here, we address the broader issue of whether ACE’s qualify as compensatory mitigation for purposes of California Code of Regulations, title 14, section 15870, subdivision (e) (hereafter "Guidelines"),³ which defines mitigation to include "[c]ompensating for the impact by … providing substitute resources." (Guidelines, § 15370, subd. (e).) To promote CEQA’s purpose of long term protection of the environment, we join the First District in interpreting the phrase "providing substitute resources" to encompass preserving existing agricultural land. (Masonite Corp. v. County of Mendocino (2013) 218 Cal. App.4th 230, 238, 159 Cal.Rptr.2d 860 (Masonite).) Thus, ACE’s qualify as compensatory mitigation, even though they do not replace or otherwise offset the acres of agricultural land converted by the project—that is, they do not ensure the project results in no net loss of agricultural land. (Ibid.; see Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engineers (11th Cir. 2016) 883 F.3d 1274, 1281 [under federal law, one of four methods of compensatory mitigation is the preservation of an existing aquatic site]; 40 C.F.R. § 230.92 [definitions of compensatory mitigation and preservation].)

In the unpublished part of this opinion, we address whether the SREIR’s discussion of the cancer risk associated with the drilling of more than one well near a sensitive receptor complied with CEQA. We conclude that discussion is inadequate for purposes of CEQA because it lacks sufficient information for the public and derision makers to meaningfully understand the cancer risk resulting from multiple wells drilled outside the 210-foot setback distance specified in the ordinance. The health risk assessment for the drilling of multiple wells used a setback distance of just under 1,000 feet instead of analyzing reasonably foreseeable situations that could arise under the ordinance’s actual setback distances. This informational defect must be corrected before the ordinance is reapproved.

We also address whether the County misconstrued CEQA when it decided to remove a water supply mitigation measure because "there is no requirement in CEQA to perform an analysis or provide mitigation for impacts to low-income or disadvantaged communities." While social and economic effects are not themselves environmental impacts, social and economic effects are relevant in determining the significance of a physical change to the conditions constituting the environment. (Guidelines, § 15064, subd. (e).) Here, the County’s erroneous view of CEQA’s principles addressing social and economic effects tainted its analysis of (1) the significance of lowering groundwater levels in wells and (2) appropriate mitigation for reducing the significance of the project’s contribution to that cumulative impact.

We also conclude appellants have not carried their burden of establishing prejudicial error involving (1) the air quality mitigation measures addressing emissions of particulate matter, (2) the analysis of impacts to the Temblor legless lizard, or (3) the absence of Spanish language translations of certain notices and portions of the SREIR.

We therefore reverse the judgment and discharge order and remand for further proceedings.

THE PARTIES

Appellant V Lions Farming, LLC (Lions Farming) was named King and Gardiner Farms, LLC before it amended its articles of organization in February 2021. The other appellants are Natural Resources Defense Council, Sierra Club, Committee For A Better Arvin, Committee For A Better Shafter, Comite Progreso de Lamont, and Center for Biological Diversity (collectively, Sierra Club).

The respondents are the County, the Board, and real parties in interest Western States Petroleum Association and California Independent Petroleum Association. They filed a joint respondents’ brief to Lions Farming’s opening brief, a joint respondent’s brief to Sierra Club’s opening brief, and are referred to collectively as the County.

FACTS^**

PROCEEDINGS^***

DISCUSSION

I. STANDARD OF REVIEW^†

II. AGRICULTURAL CONSERVATION EASEMENTS

The parties dispute whether ACE’s qualify as a type of mitigation for the project’s conversion of agricultural land. CEQA defines "‘[a]gricultural land’" as "prime farmland, farmland of statewide importance, or unique farmland, as defined by the United States Department of Agriculture land inventory and monitoring criteria, as modified for California." (§ 21060.1, subd. (a).) This opinion adopts this definition and uses the terms "agricultural land" and "farmland" interchangeably.

To summarize the discussion that follows, in King & Gardiner, supra, 45 Cal. App.5th 814, 259 Cal.Rptr.3d 109, we decided a narrow aspect of the efficacy of ACE’s as mitigation, addressing only whether ACE’s were "effective" at reducing the project’s conversion of agricultural land to a less than significant level for purposes of CEQA. We concluded ACE’s were not "effective" at accomplishing that specific task.

Here, we address the broader question whether ACE’s are effective at providing any type of mitigation for purposes of CEQA. The Guidelines define "‘[m]itigation’ " by giving five examples, including "[c]ompensating for the impact by … providing substitute resources." (Guidelines, § 15370, subd. (e).) We conclude this text is ambiguous and, therefore, resolve the ambiguity by adopting the interpretation that best effectuates CEQA’s purpose of the long term protection of the environment. The long term protection of the environment is best promoted by accepting, rather than rejecting, ACE’s as a type of compensatory mitigation. Consequently, we join the First District in concluding "ACEs compensate for the loss of farmland within the Guidelines definition of mitigation" by "preserving substitute resources," even though ACE’s do not ensure the project causes no net loss of farmland, (Masonite, supra, 218 Cal.App.4th at p. 238, 159 Cal. Rptr.3d 860.)

A. Background

1. Conservation Easements

The term "conservation easement" is statutorily defined as a limitation in the form of an easement, restriction, covenant,...