By William W. Abbott

A continuing reoccurring question for CEQA practitioners is: when is it appropriate to rely upon the regulatory scheme and permitting steps of independent regulatory agencies? The most ready criticism of that practice is that it involves deferred mitigation. That criticism has to be balanced against the recognition that subsequent to the enactment of CEQA, that there now exists a myriad number of local, state and federal regulatory agencies with special regulations and expertise and CEQA should integrate with existing regulatory practices where issues overlap. As the decision in Citizens Opposing a Dangerous Environment v. County of Kern (2014) 228 Cal.App.4th 360 illustrates, perhaps an easier case can be made for regulatory reliance when a CEQA lead agency relies upon a federal agency with exclusive regulatory authority.

The underlying land use conflict involves applications for a rezoning for wind energy (think turbines) projects and an existing private airport used for glider aircraft. In response to separate applications which would result in 116 turbines, the County of Kern prepared an EIR. The EIR included consideration of conflicts between the turbines (up to 500 feet high) and a nearby private airstrip. The EIR included a mitigation measure which imposed an obligation on the turbine operator to obtain a Determination of No Hazard to Air Navigation from the FAA. The EIR also discussed the role and nature of FAA regulation. The owner of the nearby airport submitted comments on the Draft EIR concerning the potential conflict with glider plane operation, which as an unpowered aircraft has more limited navigational options. Both the turbine applicant and glider pilots desired access to the ridgelines due to the naturally occurring wind conditions. By the time that the Board of Supervisors ultimately approved the project, both the applicant and opponent had submitted expert reports relative to their concerns over potential conflicts. By the time of the Board action, the FAA had made “no hazard” determinations on 102 turbine facilities. The opponents filed a writ of mandate, seeking to overturn the EIR certification and project approval. The trial court denied the writ. On appeal, the opponents focused on the mitigation measure which relied on the FAA review process, arguing that this violated CEQA in several particulars. The appellate court rejected these arguments as well.

First, the appellate court concluded that the mitigation measure calling for federal agency sign off sufficiently avoided or reduced impacts to a less than significant level. The second argument was that the FAA lacked enforcement authority in the event of conflict. However, once the FAA made a safety decision, the County’s conditions of approval assured safety through its land use regulations. Appellants also challenged the sufficiency of the County’s response to an aviation safety related comment, but the appellate court noted that the comment was untimely under CEQA’s rules, and that the County had no obligation to respond. The court of appeal also found that there was substantial evidence in support of the disputed mitigation measure. That evidence consisted of the staff reports and discussion of FAA’s regulatory requirements. As to this issue, the court restated the well-understood rule that a reviewing court does not reweigh the evidence in an EIR, and noted that record included expert reports in support of the County’s determinations. Finally, the opponents challenged the rejection of an alternative which would have relocated the turbines off the ridgeline and away from the flight paths used by the glider pilots. The appellate court concluded that once the Board of Supervisors had determined the impacts to be adequately mitigated, that the Board was not obligated to further consider alternatives which further reduced impacts.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.