Citizens Opposing A Dangerous Environment v. County of Kern CA5
174 Cal. Rptr. 3d 683
Cal. Ct. App.2014Background
- CODE appeals a superior court denial of a writ challenging CEQA EIR certification and project approval for North Sky River/Jawbone wind project in Tehachapi.
- County approved rezoning and a conditional use permit for wind energy; MM 4.8-8 required FAA determination of no hazard before building permits.
- Board certified the final EIR and approved the project despite concerns about aviation safety near Kelso Valley Airport (KVA).
- FAA determinations reportedly issued (102 no-hazard determinations) and a dispute arose over the adequacy and process of FAA involvement.
- CODE argued the County’s mitigation was ineffective or preempted by federal aviation law; it also challenged responses to comments and alternatives.
- The court held the EIR described a legally feasible mitigation, late comments need not be addressed, and MM 4.8-8 was supported by substantial evidence; CODE’s requested measures and the environmentally superior alternative were not required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is federal aviation preemption controlling? | CODE argues federal aviation law preempts local mitigation. | County relies on FAA processes and CEQA to mitigate. | Not directly decided; court found feasible CEQA mitigation consistent with federal framework. |
| Must the lead agency respond to late comments? | Late comments about FAA processes should be considered. | CEQA allows ignoring late comments when not duty-bound. | No mandatory duty to respond to late comments; agency may exercise discretion. |
| Did substantial evidence support MM 4.8-8 mitigating aviation impacts? | MM 4.8-8 may be insufficient to reduce risks to aviation safety. | FAA determinations and staff analyses show MM 4.8-8 reduces impact to insignificance. | Yes; substantial evidence supports MM 4.8-8 as mitigating significant aviation impacts. |
| Was the Board required to adopt CODE’s proposed mitigation or the EIR’s environmentally superior alternative? | Board should relocate turbines or adopt Alternative C to minimize impact. | If feasible mitigation exists, agencies need not adopt additional measures or alternatives. | No; not required to adopt CODE’s proposed mitigation or the environmentally superior alternative. |
Key Cases Cited
- Laurel Heights Improvement Assn. v. Regents of Univ. of California, 47 Cal.3d 376 (Cal. 1988) (CEQA guidelines interpretation and EIR duties)
- Mountain Lion Foundation v. Fish & Game Comm., 16 Cal.4th 105 (Cal. 1997) (CEQA process; no mitigation must be perfect)
- Citizens for Goleta Valley v. Board of Supervisors, 52 Cal.3d 553 (Cal. 1990) (detailed response to public comments required)
- Kings County Farm Bureau v. City of Hanford, 221 Cal.App.3d 692 (Cal. App. 1990) (CEQA mitigation feasibility not needing perfection)
- Laurel Heights II, 6 Cal.4th 1112 (Cal. 1993) (CEQA standard of review and information disclosure)
- Association for Protection & Values v. City of Ukiah, 2 Cal.App.4th 720 (Cal. App. 1991) (grounds for considering environmental impacts and procedures)