43 Cal.App.5th 867
Cal. Ct. App.2019Background
- Project: Ormat proposed the Casa Diablo IV geothermal power plant on federal (Forest Service/BLM) land in Mono County adjacent to existing geothermal operations.
- Emissions issue: Project uses n-pentane (an ROG) in a closed loop but will produce fugitive n-pentane emissions estimated at 410 lbs/day, exceeding the District’s 55 lbs/day ROG significance threshold.
- CEQA process: A joint EIS/EIR was prepared; the Great Basin Unified Air Pollution Control District served as California lead agency and certified the EIR and mitigation program (Mitigation Measures AQ‑5 and AQ‑6). The District also issued an operating permit limiting daily n‑pentane emissions to 410 lbs/day.
- Petitioner claims: LIUNA challenged the EIR as inadequate—arguing the 410 lbs/day estimate lacked substantial evidentiary support, additional feasible mitigation (stricter LDAR and leakless/low‑leak technology) was improperly rejected, and that the District was the wrong lead agency.
- Administrative record: Some emissions calculation data were withheld as trade secrets; the District provided redacted materials and later an unredacted table. The trial court denied relief; petitioners appealed.
- Disposition: The Court of Appeal affirmed that the District was the proper lead agency and that reliance on the permit limit sufficed as evidentiary support for the emissions figure, but reversed as to the District’s inadequate analysis of the feasibility of additional mitigation measures and remanded for a reasoned, fact‑based response.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Administrative exhaustion | Petitioners contend CEQA claims were properly preserved in the administrative record. | District/Ormat argued petitioners failed to exhaust administrative remedies and should have used permit challenge procedures. | Held: Exhaustion satisfied under PRC §21177 because issues were raised in public comments; administrative remedies defense rejected. |
| Proper lead agency | County (Petitioner) argued Mono County—not the District—should have been lead, tainting the EIR. | District argued it had greatest approval responsibility; county only needed a limited use permit for a short pipeline segment. | Held: District was a proper lead agency because it had principal permitting authority over the project as a whole. |
| Sufficiency of evidence for 410 lbs/day emissions | Petitioners: record lacks underlying data and expert evidence suggests much higher emissions. | District/Ormat: Permit condition limiting emissions to 410 lbs/day and enforceable monitoring/penalties make the calculation method immaterial. | Held: The permit limit and adopted monitoring/mitigation (AQ‑5/AQ‑6) provide sufficient evidentiary support; Ormat need not disclose trade‑secret calculation data. |
| Feasibility of additional mitigation (stricter LDAR and leakless/low‑leak tech) | Petitioners: More stringent LDAR (lower ppm triggers, faster repair deadlines, higher monitoring frequency) and leakless/low‑leak equipment are feasible and would materially reduce ROGs. | District: Current measures follow USEPA methods and are appropriate; stricter refinery/chemical‑plant standards not applicable to geothermal. | Held: Reversed in part—District failed to provide a reasoned, fact‑based analysis showing the proposed stricter LDAR and leakless technologies are infeasible; remand to require such analysis and responses. |
Key Cases Cited
- Bakersfield Citizens for Local Control v. City of Bakersfield, 124 Cal.App.4th 1184 (Cal. 2004) (administrative exhaustion requirement for CEQA actions)
- Oakland Heritage Alliance v. City of Oakland, 195 Cal.App.4th 884 (Cal. Ct. App. 2011) (compliance with regulatory performance standards can supply substantial evidence of mitigation effectiveness)
- Laurel Heights Improvement Assn. v. Regents of Univ. of California, 47 Cal.3d 376 (Cal. 1988) (agency may rely on commitment to meet performance standards as evidence mitigation will be effective)
- Sierra Club v. County of Fresno, 6 Cal.5th 502 (Cal. 2018) (mitigation and monitoring enforced through permits can be adequate and enforceable under CEQA)
- Kings County Farm Bureau v. City of Hanford, 221 Cal.App.3d 692 (Cal. Ct. App. 1990) (limits of relying on permits/regulatory presumptions where permits don’t address all emissions—distinguished here)
- Town of Atherton v. California High‑Speed Rail Authority, 228 Cal.App.4th 314 (Cal. Ct. App. 2014) (standard of review: substantial evidence supports agency findings)
- Los Angeles Unified School Dist. v. City of Los Angeles, 58 Cal.App.4th 1019 (Cal. Ct. App. 1997) (lead agency must respond in detail to significant environmental comments)
- San Franciscans for Reasonable Growth v. City & County of San Francisco, 209 Cal.App.3d 1502 (Cal. Ct. App. 1989) (agency must adopt feasible mitigation that would substantially lessen significant impacts)