The Department prepared and certified an EIR.
I. BACKGROUND
Well stimulation treatments, such as hydraulic fracturing, are techniques used to enhance oil and gas production by increasing the permeability of the underground geological formation. (§§ 3152, 3157.) Hydraulic fracturing-or "fracking"-involves the pressurized injection of fluids into the formation to create fissures that allow oil and gas to escape for collection in a well. (§ 3152.) Hydraulic fracturing has been legally performed in California for decades. (§§ 3106, subd. (b), 3160, subd. (b).) However, the practice has not, until recently, been the subject of systematic study. (Stats. 2013, ch. 313, § 1.) As a result, little was known about the environmental consequences of well stimulation treatments. (Ibid. ) The Legislature passed Senate Bill No. 4 in an attempt to remedy this problem. (Ibid. )
In passing Senate Bill No. 4, the Legislature found that hydraulic fracturing and other well stimulation treatments "are spurring oil and gas extraction and exploration in California." (Stats. 2013, ch. 313, § 1(a).) The Legislature also determined that, "[i]nsufficient information is available to fully assess the science of the practice of hydraulic fracturing and other well stimulation treatment technologies in California, including environmental, occupational, and public health hazards and risks." (Stats. 2013, ch. 313, § 1(b).) Accordingly, the Legislature declared that, "[p]roviding transparency and accountability to the public regarding well stimulation treatments, including, but not limited to, hydraulic fracturing, associated emissions to the environment, and the handling, processing, and disposal of well stimulation and related wastes, including from hydraulic fracturing, is of paramount concern." (Stats. 2013, ch. 313, § 1(c).)
Senate Bill No. 4 addressed these concerns by adding a number of new statutory provisions, including sections 3150 to 3161.
Second, the Legislature required the California Natural Resources Agency to "cause to be conducted, and completed, an independent scientific study on well stimulation treatments, including, but not limited to, hydraulic fracturing and acid well stimulation treatments." (§ 3160, subd. (a).) The Legislature specified that the study was to "evaluate the hazards and risks and potential hazards and risks that well stimulation treatments pose to natural resources and public, occupational, and environmental health and safety." (Ibid. ) The Legislature also specified that the study was to have been completed, "[o]n or before January 1, 2015." (Ibid. )
Third, the Legislature directed the Department to adopt permanent regulations specific to well stimulation treatments by January 1, 2015, which would become effective on July 1, 2015. (§ 3160, subd. (b)(1)(A).)
Fourth, the Legislature established new permit requirements-separate from the permits needed to drill or redrill wells-for conducting well stimulation treatments on oil and gas wells. (
Fifth, the Legislature established an interim statutory regime for well stimulation treatments for the eighteen month period beginning January 1, 2014 (the effective date of Senate Bill No. 4), and ending July 1, 2015 (when the permanent regulations would take effect). ( § 3161.) To this end, Senate Bill No. 4 specifies that the Department "shall allow" well stimulation activities to continue, provided that certain conditions are met. ( § 3161, subd. (b) ; see also Association of Irritated Residents v. Department of Conservation, supra ,
Senate Bill No. 4 specifies that, "[t]he EIR shall address the issue of activities that may be conducted as defined in Section 3157 and that may occur at oil wells in the state existing prior to, and after, January 1, 2014." ( § 3161, subd. (b)(3)(A)(ii).) Senate Bill No. 4 further specifies that any such EIR was required to be certified by the Department as the lead agency "no later than July 1, 2015." ( § 3161, subd. (b)(3)(B)(i).) Senate Bill No. 4 clarifies that, notwithstanding the requirement that the Department prepare an EIR, local lead agencies would not be prohibited from preparing their own EIRs. ( § 3161, subd. (b)(3)(C).)
Finally, Senate Bill No. 4 provides that it "does not relieve [the Department] or any other agency from complying with any other provision of existing laws, regulations, and orders." (§ 3160, subd. (n).) "Presumably, this general provision would mean that Senate Bill No. 4 did not relieve [the Department] of its responsibility to comply with CEQA where applicable." ( Association of Irritated Residents v. Department of Conservation, supra ,
B. The EIR
The Department issued a notice of preparation of an EIR on November 15, 2013,
The EIR spans three volumes and runs to more than 5500 pages. It includes more than 2500 pages of discussion and analysis, an additional 700-plus pages of responses to public comments and approximately 2000 pages of appendices. The administrative record also includes some of the reference materials used to prepare the EIR, which run to more than 116,000 pages.
The EIR begins with a discussion of Senate Bill No. 4. The EIR incorporates Senate Bill No. 4's definition of "well stimulation treatments" (§ 3157) and describes the "project," for purposes of CEQA, as "all activities associated with a stimulation treatment that could occur either at an existing oil and gas well, or at an oil and gas well that is drilled in the future expressly for the purposes of stimulation treatment." (See Cal. Code Regs., tit. 14, §§ 15120 & 15124 [an EIR must contain a project description defining the location of the proposed project, the objectives sought by the proposed project, the technical, economic and environmental characteristics of the project, and the intended uses of the EIR].)
The EIR contains a "programmatic" analysis of the environmental impacts of well stimulation treatments, with separate, standalone sections for aesthetics; agriculture and forestry resources; air quality; biological resources (both terrestrial and coastal and marine); coastal processes and marine water quality; commercial and recreational fishing; cultural resources; paleontological resources; environmental justice; geology; soils and mineral resources; greenhouse gas emissions; hazards and hazardous materials; groundwater resources; surface water resources; land use and planning; noise and vibration; population and housing; public services; recreation; risk of upset/public and worker safety; transportation and traffic; and utilities and service systems. Each of these sections ranges in length from nine pages (for commercial and recreational fishing) to 100 pages (for cultural resources). As we shall discuss, the Center contends the EIR fails to analyze certain indirect impacts of the "project," namely, emissions caused by pumping and transporting oil or gas produced by stimulated wells, traffic from pumping and transporting oil or gas produced from stimulated wells, and disposal of wastewater from stimulated wells, including the use of such wastewater to irrigate crops.
The EIR is a "programmatic" or "first-tier" analysis of well stimulation treatments in the State of California. As we shall discuss, "program EIRs" are typically more conceptual and abstract than "project EIRs," and may serve as the first tier for a subsequent, site specific CEQA review. Although the EIR describes itself as a programmatic analysis of well stimulation treatments throughout the state, the document also includes a "programmatic level analysis" of three specific oil and gas fields: the Wilmington and Inglewood oil fields in Los Angeles County, and the Sespe oil field in Ventura County. According to the EIR, "the purpose of the site-specific programmatic level analysis contained in this EIR is to provide [the Department] with site-specific environmental documentation required for CEQA compliance in order to review future oil and gas well stimulation treatment applications associated with the Wilmington, Inglewood, and Sespe Oil and Gas Fields." As we shall discuss, the Center contends the EIR's field-specific analyses are legally inadequate and cannot be used as the basis for approving new projects at the three sites without additional CEQA review.
C. The Certification Statement
The EIR was accompanied by a certification statement signed by the State Oil and Gas Supervisor. The certification statement discusses Senate Bill No. 4 and outlines the Department's understanding of the requirement that the agency prepare an EIR pursuant to CEQA. ( § 3161, subd. (b)(3)(A).) The certification statement explains: "The EIR mandated by Senate Bill [No.] 4 is not an ordinary EIR, but rather is a rare, and possibly unique, CEQA document in that it was mandated by statute without any accompanying 'proposed project' requiring action by [the Department] or any other public agency. The subject of the EIR, 'well stimulation in the state,' is not a pending 'project' in any ordinary sense. Rather, the subject of the EIR is a set of ongoing activities likely to continue to be carried out throughout some parts of a huge and very diverse [s]tate. Such activities were legally occurring at the time S[enate ]B[ill No.] 4 was passed, and in fact had been occurring for decades." As we shall discuss, the certification statement anticipates and addresses many of the issues raised herein.
D. The Study
As previously discussed, Senate Bill No. 4 required the Natural Resources Agency
The study was released in three volumes. The first volume was released on January 14, 2015, the date on which the Department circulated the draft EIR. The second and third volumes were released on July 9, 2015, after the Department had certified the EIR.
As we shall discuss, the Center contends the Department violated Senate Bill No. 4 and CEQA by failing to incorporate the complete study into the EIR, failing to consider the first volume of the study, and failing to supplement the EIR or issue a subsequent EIR after the second and third volumes were released.
The Center filed an initial petition for writ of mandate and complaint for declaratory and injunctive relief on July 30, 2015. The Petroleum Association filed a motion to intervene, which was granted. The Center then filed the operative first amended petition and complaint for declaratory and injunctive relief.
The first amended petition asserts five causes of action: (1) violations of CEQA for approving or carrying out a program of well stimulation in the State of California in reliance on an inadequate EIR; (2) violations of Senate Bill No. 4 for failing to prepare an EIR that meets CEQA requirements; (3) declaratory relief for CEQA violations seeking a judicial declaration that the EIR cannot be used for subsequent project approvals; (4) declaratory relief for violations of Senate Bill No. 4 seeking a judicial declaration that the EIR cannot be used to approve subsequent projects without preparing a subsequent or supplemental EIR incorporating the information contained in the study; and (5) injunctive relief.
The Department demurred to the first amended petition on grounds of ripeness. Specifically, the Department argued that all of the Center's causes of action were unripe because the EIR was an informational document only, unconnected to any proposed project requiring discretionary approval by the Department (or any other agency). The trial court overruled the demurrer with respect to the Center's causes of action for violations of Senate Bill No. 4 for failing to prepare an EIR that meets CEQA requirements (the second cause of action), declaratory relief for CEQA violations (the third cause of action), declaratory relief for violations of Senate Bill No. 4 (the fourth cause of action), and injunctive relief (the fifth cause of action). However, the trial court sustained the demurrer to the Center's CEQA cause of action (the first cause of action) without leave to amend.
The trial court held a hearing on the merits of the petition on August 26, 2016. The trial court issued an order denying the petition on October 27, 2016. The order also denied the Center's request for judicial notice of the second and third volumes of the study.
The trial court entered judgment on November 28, 2016. This appeal timely followed.
The Center argues the EIR violates Senate Bill No. 4 and CEQA. The Center challenges the trial court's order sustaining the Department's demurrer
A. CEQA Overview
"CEQA was enacted to advance four related purposes to: (1) inform the government and public about a proposed activity's potential environmental impacts; (2) identify ways to reduce, or avoid, environmental damage; (3) prevent environmental damage by requiring project changes via alternatives or mitigation measures when feasible; and (4) disclose to the public the rationale for governmental approval of a project that may significantly impact the environment." ( California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015)
"To further these goals, CEQA requires that agencies follow a three-step process when planning an activity that could fall within its scope. [Citations.] First, the public agency must determine whether a proposed activity is a '[p]roject,' i.e., an activity that is undertaken, supported, or approved by a public agency and that 'may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.' " ( CBIA, supra ,
"When an agency prepares an EIR, it provides public officials and the general public with details about a proposed project's consequences. The EIR also lists the ways to potentially minimize any significant environmental effects, and presents alternatives to the project. [Citations.] By making this information available to decision makers and the public at a crucial moment when the merits of a project and its alternatives are under discussion, an EIR advances not only the goal of environmental protection but of informed self-government." ( CBIA, supra ,
The Center argues that the trial court erred in sustaining the Department's demurrer to its cause of action for violations of CEQA for approving or carrying out a program of well stimulation in the state. The Center fails to demonstrate error.
A cardinal rule of appellate review is that the judgment or order of the trial court is presumed correct and prejudicial
As noted, the trial court sustained the Department's demurrer to the CEQA cause of action on ripeness grounds. Specifically, the trial court determined the CEQA cause of action was unripe because there was no project before the Department requiring approval. On appeal, the Center treats the trial court's ruling as a determination that there was no project to analyze, rather than a determination that there was no project requiring approval. Having thus framed the issue, the Center expends considerable energy arguing that the "project," for purposes of CEQA, was defined by Senate Bill No. 4 as "well stimulation in the state." But this argument, which the Department does not dispute, does not address the question of ripeness, which formed the basis for the trial court's ruling.
In the alternative, the Center argues the trial court erred because, though the Department may not have approved a project in reliance on the EIR, it was "carrying out" a program of regulating, overseeing and permitting well stimulation in reliance on the EIR, and that program was itself a "project" within the meaning of CEQA. (See § 21065 [defining "project," in pertinent part, as "an activity which may cause either a direct physical change in the environment,
Contrary to the Center's contention, the Department does not carry out a program or "project" of well stimulation in the state. That the Department regulates well stimulation activities in the state does not imply that the Department "directly undertake[s]" such activities. Furthermore, though the Department oversees a regulatory program encompassing well stimulation activities in the state, that program was not the "project" that the Department was charged with examining.
C. Request for Judicial Notice
The Center argues the trial court erred in refusing to take judicial notice of the second and third volumes of the study. We apply the abuse of discretion standard of review to any ruling by the trial court on admissibility of evidence, including requests for judicial notice. ( In re Social Services Payment Cases (2008)
The Center argues the trial court's ruling was erroneous because the second and third volumes of the study were relevant to the claim that the Department
The Center does not address the basis for the trial court's ruling. Instead, the Center suggests the trial court abused its discretion in failing to consider its newly articulated theory of relevance. Even assuming that we could consider the Center's new theory on appeal, we would reject it. ( Lorenzana v. Superior Court (1973)
D. The EIR Complies with Senate Bill No. 4 and CEQA
The Center argues the Department violated Senate Bill No. 4 and CEQA by
1. Standard of Review
Our review in a CEQA case, as in other mandamus actions, is the same as that of the trial court. We review the agency's decision, not that of the trial
An agency may abuse its discretion under CEQA either by failing to proceed in the manner CEQA requires or by reaching factual conclusions unsupported by substantial evidence. (§ 21168.5 ["Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence"]; see also § 21005, subd. (a) [noncompliance with information disclosure requirements may "constitute a prejudicial abuse of discretion"].) " 'Judicial review of these two types of error differs significantly: While we determine de novo whether the agency has employed the correct procedures, "scrupulously enforc[ing] all legislatively mandated CEQA requirements" [citation], we accord greater deference to the agency's substantive factual conclusions. In reviewing for substantial evidence, the reviewing court "may not set aside an agency's approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable," for, on factual questions, our task "is not to weigh conflicting evidence and determine who has the better argument." ' " ( Sierra Club v. County of Fresno (2018)
As we have suggested, the present case requires us to apply these standards to an unusual EIR. The parties have not directed our attention to any other case in which the Legislature directed an agency to prepare an EIR in the absence of a pending project or regulatory program requiring approval, and our own research has uncovered none. In the absence of any authority directly on point, we look for guidance in the case law concerning analogous "program" EIR's. We discuss the most relevant of these cases below, and then turn to the Center's specific contentions.
"CEQA allows public agencies to use special types of EIR's to simplify preparation and avoid duplication. [Citations.] [¶] One of those
"Program EIR's are commonly used in conjunction with the process of tiering." ( Bay-Delta, supra ,
We discern the following principles relevant to our analysis of the subject EIR. First, a program EIR may appropriately defer discussion of site specific impacts and mitigation measures to later project EIR's where such " 'impacts or mitigation measures are not determined by the first-tier approval decision but are specific to the later phases' " ( Bay-Delta, supra ,
3. The Study
The Center argues the Department violated Senate Bill No. 4 and CEQA by failing to incorporate the complete study into the EIR. As previously discussed, Senate Bill No. 4 contemplated that the study would be completed on or before January 1, 2015, and the EIR would be certified no later than July 1, 2015. (§§ 3160, subd. (a), 3161, subd. (b)(3)(B)(i).) According to the Center, these statutory deadlines evince a legislative intent to require the Department to incorporate the complete study into the EIR, which the Department violated by certifying the EIR on July 1, 2015, before the second and third volumes were completed. We perceive no violation of Senate Bill No. 4.
We apply a de novo standard of review to questions of statutory interpretation. ( Concerned Dublin Citizens v. City of Dublin (2013)
Here, we need look no further than the words of Senate Bill No. 4. Section 3160, subdivision (a) directs the Natural Resources Agency to cause the study to be "conducted, and completed," on or before January 1, 2015. A separate statute directs the Department to prepare an EIR "pursuant to [CEQA], to provide the public with detailed information regarding any potential environmental impacts of well stimulation in the state," ( § 3161, subd. (b)(3)(A) ) and certify the EIR "no later than July 1, 2015." ( § 3161, subd. (b)(3)(B)(i).) It is true, as the Center argues, that sections 3160 and 3161 establish
The Center argues this interpretation of Senate Bill No. 4 undermines the purpose of the statutory scheme-to inform the public about the potential environmental impacts of well stimulation treatments-by allowing the Department to certify the EIR without considering the information contained in the study. However, the Legislature could have rationally concluded that the independent production of two separate reports, with differing purposes and areas of emphasis, would effectuate Senate Bill No. 4's remedial purposes by increasing the overall quantum of information about well stimulation treatments. And the Legislature could have also concluded that it would be preferable, though not essential, for the study to be completed before the EIR was certified, particularly inasmuch as the EIR was likely to be (and was) a first-tier program EIR. Certainly, the Legislature could have expressly required that the Department postpone certification of the EIR in the event that the study was not timely completed. That the Legislature chose not to do so demonstrates an intent to keep the documents and processes by which they were prepared separate. We cannot impose a requirement that the Legislature declined to impose, and we cannot say that the Department violated Senate Bill No. 4-or undermined its essential purpose-by certifying the EIR on July 1, 2015, as section 3161, subdivision (b)(3)(b)(i) required.
The Center argues that the study conflicts with the EIR in multiple respects, and the EIR should have disclosed these differences of opinion. However, the Center's citations to the record make clear that most of the asserted conflicts are based on conclusions contained in the second and third volumes, which had not been released at the time the Department certified the EIR and are not properly before us now. We do not consider any of the asserted conflicts between the EIR and the second and third volumes of the study.
Setting the second and third volumes aside, the Center argues that the EIR should have disclosed the first volume's prediction that, "[t]he most likely scenario for future oil recovery using hydraulic fracturing is expanded production in and near existing oil fields in the San Joaquin Basin in a manner similar to the production practices of today." According to the Center,
The San Joaquin Basin is one of five major sedimentary basins in California with reservoirs of known economically viable oil and gas resources. The San Joaquin Basin holds some of California's most productive oil fields. The Monterey Formation is a petroleum system comprised of permeable rock through which petroleum migrates. The Monterey Formation is one of the largest petroleum systems in the United States, and the source of the oil and gas resources in the San Joaquin Basin.
The EIR discusses the Monterey Formation at length, noting that, "California's largest petroleum reserves lie in the Monterey Formation, although estimated recoverable reserves are unknown at this time and estimates vary." The EIR predicts that future oil and gas production in California will primarily occur within existing fields in the Monterey Formation, and will require well stimulation treatments. The EIR relies on business plans from the Petroleum Association members in an attempt to forecast future production for the next 25 years. "In general," the EIR forecasts "declining production with the management of older reservoirs" for the state as a whole over a 25-year period. For the study region that encompasses the San Joaquin Basin, the EIR anticipates that as many as 3,300 new production, producer, injection and other wells may be drilled every year over the next 25 years, and hydraulic fracturing may be used on approximately 40 to 55 percent of new production wells, and 40 to 62 percent of new injection wells. "In general," however, the EIR anticipates that production and drilling
These projections are not necessarily inconsistent with the study's prediction that, "[t]he most likely scenario for future oil recovery using hydraulic fracturing is expanded production in and near existing oil fields in the San Joaquin Basin in a manner similar to the production practices of today." The EIR clearly discloses that hydraulic fracturing will likely take place within the Monterey Formation in general, and the study region that includes the San Joaquin Basin in particular. That the Department anticipated declining production over a 25 year horizon does not establish an inconsistency with the study's prediction that hydraulic fracturing would likely occur in the San Joaquin Basin, and does not suggest that the Department "ignored" any
The Center argues that the Department should have issued a subsequent or supplemental EIR in light of the second and third volumes of the study. CEQA does not require the preparation of a subsequent or supplemental EIR unless new information of substantial importance comes to light. (§ 21166 ["When an environmental impact report has been prepared for a project ..., no subsequent or supplemental environmental impact report shall be required ... unless ... [¶] ... (c) New information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available"]; see also Save Our Heritage Organisation v. City of San Diego (2018)
Whether an initial EIR remains relevant in light of new information or requires updating is a " 'predominantly factual question' " that courts review for substantial evidence. ( Committee for Re-Evaluation of T-Line Loop v. San Francisco Municipal Transportation Agency (2016)
4. Indirect Impacts
The Center argues the EIR fails to adequately address the indirect impacts of well stimulation treatments. Specifically, the Center argues the EIR fails to analyze emissions caused by pumping and transporting oil and gas produced by stimulated wells, traffic, and wastewater produced from stimulated wells. We conclude the Department was not required to analyze indirect impacts of well stimulation in the EIR, but nevertheless adequately analyzed them on a programmatic basis, properly deferring further analysis to later, project-level EIRs.
Section 3161, subdivision (b)(3)(B)(ii) directly addresses the scope of the EIR and specifies the document "shall address the issue of activities that may be conducted as defined in Section 3157 and that may occur at oil wells in the state existing prior to, and after, January 1, 2014." ( § 3161, subd. (b)(3)(B)(ii).) Section 3157, in turn, defines "well stimulation treatment" to mean "any treatment of a well designed to enhance oil and gas production or recovery by increasing the permeability of the formation." (§ 3157, subd. (a).) Section 3157 specifically excludes "steam flooding, water flooding, [and] cyclic steaming," and further provides that the definition of "well stimulation treatments" does not include "routine well cleanout work, routine well maintenance, routine removal of formation damage due to drilling, bottom hole pressure surveys, [and] routine activities that do not affect the integrity of the well or the formation." (§ 3157, subd. (b).) Some of these activities, such as routine well maintenance, could be characterized as indirect impacts of well stimulation treatments, and would ordinarily be included in an EIR prepared "pursuant to CEQA." (See Placerville Historic Preservation League v. Judicial Council of California, supra ,
Reading section 3161 as a whole, and harmonizing the statute with the rest of
5. Mitigation Measures
The Center argues the EIR violates CEQA by failing to propose enforceable mitigation measures and failing to mitigate the indirect impacts of well stimulation treatments. The Department responds that CEQA only requires that a lead agency adopt mitigation measures when it approves a project, and here, there was no project before the agency for approval. The Department further responds that the agency committed to specific performance standards to mitigate the direct effects of well stimulation treatments in the Mitigation
We are inclined to agree with the Department that a lead agency has no obligation to adopt formal mitigation measures until such time as the agency approves or carries out a project. (See §§ 21002 ["public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects ...."], 21002.1, subd. (b) ["Each public agency shall mitigate or avoid the significant effects on the environment of projects that it carries out or approves whenever it is feasible to do so"], 21081 ["no public agency shall approve or carry out a project for which an environmental impact report has been certified which identifies one or more significant effects on the environment that would occur" unless the public agency makes findings that each significant effect will be mitigated], italics added.) As previously discussed, the Department does not "carry out" a program of well stimulation in the state, and there was no project before the agency for discretionary approval. Under the peculiar circumstances of this case, where the Department was directed by the Legislature to prepare an EIR for informational
a. The Mitigation Policy Manual
As previously discussed, the draft EIR contained mitigation measures designed to minimize the direct impacts of well stimulation treatments. During the comment period, this court issued its opinion in Center for Biological Diversity, supra ,
The certification statement describes the Department's commitment to the mitigation measures in the Mitigation Policy Manual as follows: "Importantly, the mitigation measures in the Mitigation Policy Manual will 'set a floor,' albeit a somewhat flexible one, for future mitigation that [the Department] will impose as permit conditions. In their final form after input from various stakeholders, the mitigation measures for individual permits or groups of permits will have to be substantially consistent with the measures found in the Mitigation Policy Manual. In determining whether a particular measure is substantially consistent with [the Department's] own recommended mitigation, [the Department] will take full account of the following: (i) any other lead agency's analysis as to whether a particular impact is significant and requires mitigation; and (ii) the extent to which the level of any impact reduction that would be achieved by the measure would be reasonably comparable to the level of mitigation that would have been achieved by the [Department]-recommended measures in the SB 4 EIR."
The Center suggests that the performance criteria set forth in the Mitigation Policy Manual are not sufficiently specific. However, the Mitigation Policy Manual spans more than 100 pages, and contains mitigation measures addressed to aesthetics; agriculture and forestry resources; air quality; biological resources (terrestrial environment); coastal processes and marine water quality; cultural resources; paleontological resources; environmental justice;
The Center also implies that the Department was not sufficiently committed to the specific performance criteria set forth in the Mitigation Policy Manual. However, the Department has committed to using the specific performance criteria in the Mitigation Policy Manual in several ways. First, the Department committed to using the Mitigation Policy Manual as a starting point for evaluating future well stimulation projects. Second, the Department committed to working with local lead agencies to ensure adequate mitigation for all site-specific impacts. Third, the Department announced that, when acting as lead agency for future projects, operators who wish to have their projects deemed within the scope of the EIR's analysis (thereby obviating the need for a second tier, project-level EIR) will need to comply with all measures set forth in the Mitigation Policy Manual virtually as written. Fourth, the Department committed to imposing additional mitigation measures on future projects as appropriate, either under its general supervisory jurisdiction over oil and gas operations or under its power to condition well stimulation permits in particular. Fifth, the Department committed to revising the Mitigation Policy Manual going forward, as it gains experience with future projects.
The Center questions the strength of the Department's commitment to the measures in the Mitigation Policy Manual, noting that the certification statement describes them as " 'a floor,' albeit a somewhat flexible one" and "not legally binding in the sense that measures found in an adopted mitigation reporting or monitoring program would be." But these statements are more fairly viewed as an acknowledgment of the fact that the Department decided to mitigate statewide impacts by means of regulations approved through the formal rulemaking process, and site-specific impacts by means of the specific performance criteria set forth in the Mitigation Policy Manual. They do not lead us to believe that the Department's commitment to the measures in the Mitigation Policy Manual is illusory. Accordingly, we conclude that the EIR does not improperly defer mitigation of the direct impacts of well stimulation treatments.
b. Mitigation of Indirect Effects
The Center argues the EIR fails to mitigate indirect effects of well stimulation treatments. The Department responds that the agency considered mitigation measures for the indirect effects of well stimulation treatments, but reasonably concluded that they were infeasible, and thus eliminated them
An EIR must describe feasible measures that would reduce any of the project's significant environmental impacts. (Guidelines, § 15126.4, subd. (a)(1).) Feasible means "capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors." (Guidelines, § 15364.) An EIR may properly decline to consider a proposed mitigation measure if substantial evidence supports the agency's determination that the proposed mitigation measure would not reduce a significant impact, or that the proposed mitigation measure is infeasible. (Guidelines, § 15126.4, subd. (a).) "Decisions as to the feasibility of ... mitigation measures are subject to a rule of reason." ( Banning Ranch Conservancy v. City of Newport Beach (2017)
The EIR and certification statement acknowledge that one of the indirect effects of well stimulation treatments is the possibility that oil and gas operators may establish new fields in areas previously undeveloped for oil and gas. In this scenario, which appears to be the one with which the parties are primarily concerned, the indirect effects of well stimulation treatments would include the direct effects of oil and gas production. As noted, the Department proposed mitigation measures for some of these indirect effects in the draft EIR, but eliminated them from the final EIR. The certification statement explains: "A handful of measures in the Draft EIR that contained language addressing the impacts of oil and gas production generally were modified or eliminated during the process of preparing the Final EIR. After receiving many comments objecting to the breadth of some of these original measures as found in the Draft EIR, [the Department] made these modifications because, even though it was appropriate under CEQA to disclose the possibility of significant indirect effects arising from hypothetical future new oil and gas production made possible by well stimulation, such indirect effects could not properly be mitigated by conditions of approval imposed on well stimulation treatment permits, which will be approved only after oil or gas wells are already in place."
We note, as the trial court did, that the certification statement overstates the extent to which a well drilling permit necessarily precedes a well stimulation permit. Under section 3160, subdivision (d)(2)(A), oil and gas operators can apply for well drilling and well stimulation permits concurrently, and receive approval for both by way of a "single combined authorization." (See also § 3203.) As a practical matter, however, an application for a well stimulation permit must include the location of the well, an
6. Findings and Mitigation Monitoring and Reporting Plan
The Center argues the EIR violates CEQA because it fails to make findings or adopt a mitigation monitoring and reporting plan. The Department responds that neither was required. We agree with the Department.
CEQA requires findings and a mitigation monitoring plan when an agency approves or carries out a project. (§§ 21081 ["no public agency shall approve or carry out a project for which an environmental impact report has been certified which identifies one or more significant effects on the environment that would occur if the project is approved or carried out unless" the agency makes findings that changes have been required or incorporated into the project to mitigate or avoid such significant effects], 21081.6, subd. (a) [a public agency must adopt a mitigation monitoring program "[w]hen making the findings required by" § 21081]; see also Christward Ministry v. County of San Diego (1993)
7. Field-Specific Analyses
As previously discussed, the EIR was a programmatic analysis of well stimulation treatments statewide. However, the EIR also contained a more
When considering a challenge to the legal adequacy of an EIR, we presume an agency's decision to certify the EIR is correct, placing the burden of establishing otherwise on the party challenging the EIR. ( Sierra Club v. City of Orange, supra ,
In any event, nothing in the record suggests that the EIR's field-specific analyses will be used to shield future well stimulation treatment projects from further environmental review, as the Center appears to believe. The EIR makes clear that the analysis of the Wilmington, Inglewood, and Sespe fields was conducted on a programmatic basis, in the absence of any specific proposals for well stimulation treatments at those fields, and under considerable time constraints. "As a consequence," the EIR explains, "future applications for well stimulation treatments in these fields will likely require additional evaluation for CEQA clearances, either site-specific Mitigated Negative Declarations or site specific EIR[']s, consistent with State CEQA Guidelines Section 15168, Subdivision (c)(1) [describing future uses of
E. Request for Declaratory Relief
Finally, the Center urges us to "issue a declaration that [the Department] may not rely upon, or tier to, or otherwise use this document to satisfy future CEQA obligations." The Center misapprehends our role. We do not consider such requests in the first instance; we review a trial court's ruling on a request for declaratory relief. To the extent the Center asks us to reverse the trial court's ruling, we decline to do so, as the Center fails to demonstrate error.
III. DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal. ( Cal. Rules of Court, rule 8.278(a)(1) & (2).)
We concur:
BLEASE, Acting P. J.
HULL, J.
Notes
Undesignated statutory references are to the Public Resources Code.
All references to the EIR are to the final EIR unless otherwise indicated.
Sections 3150 to 3161 were codified as new Article 3 (under the heading "Well Stimulation"), under Chapter 1, of Division 3 ("Oil and Gas"), of the Public Resources Code. Other statutes enacted or revised by Senate Bill No. 4 addressed penalties for noncompliance, further reporting and disclosure requirements, and groundwater monitoring. (§§ 3213, 3215, 3236.5; Wat. Code, § 10783 ; see Stats. 2013, ch. 313, §§ 3-5, 7.)
In June 2014, an amendment to Senate Bill No. 4 stated that, although the regulations must be finalized by January 1, 2015, the effective date of the regulations was extended to July 1, 2015. (Stats. 2014, ch. 35, § 131, enacting Sen. Bill No. 861; see § 3161, subd. (a).)
The regulations implementing CEQA are codified at California Code of Regulations, title 14, section 15000 et seq., and are referred to as the State CEQA Guidelines (hereafter, Guidelines).
Petroleum Association is a respondent in intervention in this action.
The Department was not involved in the preparation of the study.
The Department conducted a separate CEQA review in connection with the proposed rulemaking for the permanent regulations required by Senate Bill No. 4, and determined that the proposed rulemaking was categorically exempt from CEQA. Neither the Center nor any other party has challenged that determination.
As noted, the CEQA cause of action was based on the allegation that the Department "violated CEQA by approving or carrying out a program of well stimulation in ... reliance on an EIR that is inadequate."
The Center has not filed a request for judicial notice in this court.
Having rejected the Center's expansive interpretation of Senate Bill No. 4, we need not decide whether the EIR adequately analyzes the indirect impacts of well stimulation in the state. We note, however, that the EIR analyzes emissions caused by pumping and transporting oil and gas produced by stimulated wells, traffic, and wastewater produced from stimulated wells on a statewide basis. We also note that more detailed analyses of these indirect impacts would depend upon a variety of site-specific factors, including meteorological, topographical, and geological conditions, all of which could vary widely in a state as large and diverse as ours. Because Senate Bill No. 4 required a statewide analysis, we would likely conclude, if the question were before us, that the Department reasonably analyzed the indirect impacts of well stimulation on a programmatic basis, and properly deferred a more detailed analysis of such impacts to subsequent project EIR's. (See Bay-Delta, supra ,
This allegation does not appear in the operative petition.