36 Cal. App. 5th 210
Cal. Ct. App. 5th
2019
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Background

  • Senate Bill No. 4 (Stats. 2013, ch. 313) directed the Department of Conservation (Department) to prepare a CEQA EIR on "well stimulation treatments" (e.g., hydraulic fracturing) and required an independent scientific study by the Natural Resources Agency. The EIR had to be certified by July 1, 2015; the study was to be completed by Jan. 1, 2015.
  • The Department published a large, programmatic, statewide EIR (certified July 1, 2015) addressing well stimulation treatments and included programmatic analyses for three specific fields (Wilmington, Inglewood, Sespe). The Council’s independent study was issued in three volumes; volume 1 was released Jan. 14, 2015, volumes 2–3 post-certification.
  • The draft EIR proposed mitigation measures; some were removed from the final EIR after comments that they might be unlawful "underground regulations." The Department converted some measures into formal regulations and compiled many others in a Mitigation Policy Manual.
  • The Center for Biological Diversity sued, alleging CEQA and SB 4 violations (inadequate EIR, failure to incorporate the study, failure to analyze or mitigate indirect impacts, inadequate field analyses, lack of findings and monitoring plan). The trial court sustained a demurrer to the CEQA cause of action (ripeness), denied the petition, and refused judicial notice of volumes 2–3.
  • On appeal the court considered (a) whether the CEQA cause was unripe, (b) whether the Department had to incorporate the study or later supplement the EIR, (c) adequacy of analysis of indirect impacts and field-specific sections, (d) whether mitigation, findings, and a monitoring plan were required at the program stage.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Demurrer / ripeness of CEQA claim The EIR itself is a project ("well stimulation in the state") and the Department "carried out" a program, so CEQA cause is ripe No discrete, discretionary project or agency action approving well stimulation was before the Department; no carrying-out of well stimulation program by Department Demurrer properly sustained: CEQA cause unripe because no project approval or program carried out by Department required findings/mitigation at that time
Judicial notice of study vols. 2–3 Court should take notice; later volumes show new information requiring supplementation or recirculation Vols.2–3 were not before the agency when it certified the EIR and thus are not proper for judicial notice to challenge the administrative decision Trial court did not abuse discretion in denying judicial notice of vols.2–3 because they were not part of administrative record at certification
Obligation to incorporate study / supplement EIR SB 4 deadlines show Legislature intended the study to be incorporated; later volumes required a supplemental or subsequent EIR Statutory text sets separate, independent deadlines for study and EIR; SB 4 does not mandate incorporation; CEQA requires supplementation only if new, substantial information arises post-certification SB 4 did not require incorporation; no duty to supplement based on vols.2–3 shown on this record (court could not assess supplement need because vols.2–3 weren’t in record)
Scope: indirect impacts, mitigation, findings, monitoring, and field-specific analyses EIR must analyze indirect/secondary impacts (transport emissions, traffic, wastewater), adopt enforceable mitigation, make findings and monitoring plan, and field analyses are inadequate SB 4 narrowed EIR scope to analyze well stimulation treatments as defined; program EIR may defer site-specific analysis and mitigation; mitigation/findings/monitoring required when a project is approved; Mitigation Policy Manual + regulations and commitment suffice for program-level mitigation Court upheld EIR: SB 4 limited EIR scope to well stimulation treatments; Department reasonably analyzed indirect impacts programmatically and deferred detailed/site-specific analysis; no obligation to adopt formal mitigation findings or monitoring at program stage; Mitigation Policy Manual and regulatory steps cured deferral concerns; field analyses did not show inadequacy on record

Key Cases Cited

  • California Building Industry Assn. v. Bay Area Air Quality Management Dist., 62 Cal.4th 369 (2015) (CEQA purposes and process overview)
  • In re Bay-Delta etc., 43 Cal.4th 1143 (2008) (program EIRs, tiering, and review standards)
  • Sierra Club v. County of Fresno, 6 Cal.5th 502 (2018) (standard and scope for reviewing adequacy of program EIR)
  • Center for Biological Diversity v. Department of Fish & Wildlife, 234 Cal.App.4th 214 (2015) (discussion of "underground regulations" and limits on mitigation measures in statewide programs)
  • Town of Atherton v. California High-Speed Rail Authority, 228 Cal.App.4th 314 (2014) (program EIR and tiering principles)
  • POET, LLC v. State Air Resources Bd., 218 Cal.App.4th 681 (2013) (limitations on deferring mitigation; when commitment to performance standards suffices)
  • Banning Ranch Conservancy v. City of Newport Beach, 2 Cal.5th 918 (2017) (feasibility and rule of reason in mitigation decisions)
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