By William W. Abbott & Kristen Kortick
The question “how much is enough?” for programmatic EIRs remains an ongoing challenge for CEQA practitioners. Programmatic EIRs are frequently prepared in conjunction with broad legislative acts where specific detail as to how the policy will be administered in the future is lacking. This makes programmatic EIRs easy targets for project opponents who can always identify another study to be performed or another variable to be considered. Neither the CEQA statute nor the Guidelines provide a meaningful metric to judge sufficiency. Ultimately it is left to the reviewing courts to sort it out. The Third Appellate District addressed this issue in a recent decision involving a statutorily mandated EIR prepared by the state Department of Conservation (“Department”) concerning fracking. The legal setting is unusual because (a) the Legislature mandated the preparation of the EIR and (b) the Department did not approve any project. While the threshold legal issue involved ripeness, the Court of Appeal also addressed programmatic EIRs, EIR scope (albeit in the context of a statutorily defined project), mitigation measures, and findings.
In this appeal, the court was asked to consider the sufficiency of a programmatic EIR mandated by the legislature when Senate Bill 4 (“SB 4”) passed in 2013 (Chap. 313, Stats. 2013). SB 4 required the Department to consider the environmental effects of well stimulation (fracking) in a programmatic EIR due on or before July 1, 2015. SB 4 also required a separate independent study (“Study”) by the Natural Resources Agency on well stimulation treatments, due on or before January 1, 2015. The Department’s EIR was a programmatic document for statewide impacts but also included a more refined examination of the potential impacts in three particular oil and gas fields: Wilmington, Inglewood, and Sespe. The draft EIR contained proposed mitigation measures. However, industry representatives raised concerns that draft mitigation measures may constitute underground regulations. In response, certain measures were converted to formal regulations and others were embodied into a “Mitigation Policy Manual”. The Department finalized and certified the EIR resulting in the Center for Biological Diversity (“CBD”) challenging the EIR through a writ of mandate along with a claim for declaratory relief. CBD complained as to the level of detail, the sufficiency of the document for project specific approvals, the lack of mitigation measures, and a mitigation monitoring program. The trial court rejected all of petitioner’s claims.
Before addressing the specific issues on appeal, the court of appeal articulated three general principles applicable to judicial review of programmatic EIRs:
- Impacts and mitigation measures not determined at the first tier may be deferred to later tiers.
- The sufficiency must be reviewed in light of what is reasonably feasible, given the nature and scope of the project the “rule of reason.”
- Finally, the test as to the level of detail is: does the EIR entail sufficient information such that those who did not participate in its preparation to understand and meaningfully consider the issues. The document label is not determinative, but rather the relevant question is whether the EIR provides the decision makers with sufficient analysis to intelligently consider the environmental consequences.
Demurrer to First Cause of Action. In CBD’s first cause of action, CBD argued that the Department violated CEQA by carrying out a project of well stimulation in violation of CEQA. The Agency argued before the trial court that the case was not ripe as the Department had not approved a project, and the Department was not directly undertaking well stimulation. Both the trial court and Court of Appeal agreed with the Department. This was an unusual situation in which the lead agency was not approving a project following EIR certification.
Scope of the EIR-Inclusion of the Study. CBD also argued that the Department failed its statutory EIR obligation by not considering Volume 1 of the Study. The Appellate Court rejected this argument, noting that the Study and EIR were codified in separate code sections. While the completion dates for both suggest that the Study would be available in time for the EIR, nothing in the legislation directly linked the two together. The EIR made passing reference to Volume I of the Study but did not otherwise discuss it in depth. The court concluded that the EIR included sufficient discussion and made a reasonable effort to disclose that there were no apparent conflicts. Many of CBD’s arguments concerning conflicts between the Study and EIR involved Study Volumes II and III, which were not available at the time the EIR was certified. While CBD also argued that the EIR should have been updated to respond to Volumes II and III, the latter Volumes were not in the record on appeal and the Appellate Court had no basis to reverse the Department’s certification.
Indirect Impacts. CBD also argued that the EIR failed to evaluate the indirect impact of well stimulation (traffic, wastewater, and emissions.) The Court of Appeal disagreed given the narrow scope of the project set forth in the enabling legislation.
Mitigation Measures. CBD presents multiple challenges pertaining to the mitigation measures, all rejected by the Court of Appeal. First, the court upheld the Mitigation Policy Manual, finding that it served as a floor to later mitigation requirements. The Manual and the EIR certification reflected sufficient detail and commitment in implementation to overcome the claim of deferred mitigation. The Manual (over 100 pages) included guidelines and checklists to guide proper application as individual well stimulation permits were applied for. CBD also argued that the EIR failed to include feasible mitigation measures for indirect impacts. The Department had deleted these mitigation measures in the final EIR on the grounds that the measures were infeasible. The Department’s reasoning was that the indirect effects involved potentially opening new oil and gas fields. Due in part to the objections concerning underground regulations, the Department concluded that it was inappropriate to adopt mitigation measures pertaining to new fields as conditions of approval on well stimulation permits. The Appellate Court agreed, embracing a flexible concept of feasibility.
Findings and MMRP. CBD also asserted CEQA violations as a result of no CEQA findings and the lack of a mitigation monitoring program. The Department argued that findings and a monitoring program are not required until a project was approved. Having already concluded that the Department was not approving a project, the Appellate Court rejected CBD’s argument.
Field Specific Analysis. Finally, CBD complained that the more detailed field specific analysis was insufficient as certain discussions for the field analysis was the same as what the EIR presented for the statewide analysis. The Appellate Court observed that the fact that the impact analysis was the same did not support the conclusion that the analysis was improper. A challenger to an EIR bears the burden of showing the error, and there was no evidence in the record which demonstrated that the conclusions were incorrect. The court noted that the EIR acknowledged that later environmental analysis may be required for well stimulation within those fields given the level of detail in the first tier. This reflected the Department’s recognition that this first level EIR was not dispositive of all future CEQA review in those fields.
William Abbott is an attorney at Abbott & Kindermann, Inc. Kristen Kortick is a law clerk at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.