Center for Biological Diversity v. CA Dept. of Conservation

Filed 5/16/19; pub. order 6/14/19 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
CENTER FOR BIOLOGICAL DIVERSITY, C083913
Plaintiff and Appellant, (Super. Ct. No.
34201580002149CUWMGDS)
v.
CALIFORNIA DEPARTMENT OF
CONSERVATION, DIVISION OF OIL, GAS AND
GEOTHERMAL RESOURCES et al.,
Defendants and Respondents.
The Center for Biological Diversity appeals from a judgment denying its petition
for a writ of mandate challenging an environmental impact report (EIR) prepared by the
California Department of Conservation, Division of Oil, Gas and Geothermal Resources
(Department) pursuant to a law known as Senate Bill No. 4. (Stats. 2013, ch. 313, § 2,
enacting Sen. Bill No. 4; hereafter, Senate Bill No. 4.) Senate Bill No. 4 added sections
3150 through 3161 to the Public Resources Code to address the need for additional
information about the environmental effects of well stimulation treatments such as
1
hydraulic fracturing and acid well stimulation. (Stats. 2013, ch. 313, §§ 1 & 2; see Sen.
Floor Analysis of Sen. Bill No. 4, dated Sept. 12, 2013; Assem. Floor Analysis of Sen.
Bill No. 4, dated Sept. 9, 2013.)1 As relevant here, Senate Bill No. 4 required the
Department to prepare an EIR “pursuant to the California Environmental Quality Act
([Public Resources Code] Division 13 (commencing with Section 21000) [CEQA]), to
provide the public with detailed information regarding any potential environmental
impacts of well stimulation in the state.” (§ 3161, subd. (b)(3)(A).)
The Department prepared and certified an EIR.2 The Center filed a petition for
writ of mandate and complaint for declaratory and injunctive relief, challenging the EIR
under CEQA and Senate Bill No. 4. The trial court sustained a demurrer to the Center’s
cause of action for violations of CEQA, and subsequently denied the petition for a writ of
mandate. We affirm.
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.)
1 Undesiganted statutory references are to the Public Resources Code.
2 All references to the EIR are to the final EIR unless otherwise indicated.
2
A. Senate Bill No. 4
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 3161.3 These provisions changed the regulatory
environment for hydraulic fracturing and other well stimulation treatments in several
ways. First, the Legislature defined the relevant industry terms. (§§ 3150-3159.) Of
particular significance here, the Legislature defined the term “well stimulation treatment”
as follows: “(a) For purposes of this article, ‘well stimulation treatment’ means any
treatment of a well designed to enhance oil and gas production or recovery by increasing
the permeability of the formation. Well stimulation treatments include, but are not
3 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.)
3
limited to, hydraulic fracturing treatments and acid well stimulation treatments. [¶] (b)
Well stimulation treatments do not include steam flooding, water flooding, or cyclic
steaming and do not include routine well cleanout work, routine well maintenance,
routine removal of formation damage due to drilling, bottom hole pressure surveys, or
routine activities that do not affect the integrity of the well or the formation.” (§ 3157.)
The Legislature defined “hydraulic fracturing” to mean “a well stimulation treatment that,
in whole or in part, includes the pressurized injection of hydraulic fracturing fluid or
fluids into an underground geologic formation in order to fracture or with the intent to
fracture the formation, thereby causing or enhancing, for the purposes of this division, the
production of oil or gas from a well.” (§ 3152.) The Legislature defined “acid well
stimulation treatment” to mean “a well stimulation treatment that uses, in whole or in
part, the application of one or more acids to the well or underground geologic formation.
The acid well stimulation treatment may be at any applied pressure and may be used in
combination with hydraulic fracturing treatments or other well stimulation treatments.”
(§ 3158.)
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
4
on July 1, 2015. (§ 3160, subd. (b)(1)(A).)4 The permanent regulations would include,
“rules and regulations governing construction of wells and well casings to ensure
integrity of wells, well casings, and the geologic and hydrologic isolation of the oil and
gas formation during and following well stimulation treatments, and full disclosure of the
composition and disposition of well stimulation fluids, including, but not limited to,
hydraulic fracturing fluids, acid well stimulation fluids, and flowback fluids.” (Ibid.)
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. (Association of Irritated Residents v. Department of Conservation (2017)
11 Cal.App.5th 1202, 1211.) Under Senate Bill No. 4, oil and gas operators must apply
for a permit from the Department prior to performing well stimulation treatments on oil
and gas wells. (§ 3160, subd. (d)(1); see also § 3160, subd. (d)(3)(B) [well stimulation
treatments “shall not be performed on any well without a valid permit”].) Applications
for well stimulation permits must include well identification numbers and locations, the
time period in which well stimulation treatments are expected to occur, water
management plans, complete lists of the chemicals and estimated concentrations of the
chemical constituents of the well stimulation fluids anticipated to be used, groundwater
monitoring plans, estimates of the waste materials expected to be generated, and plans for
disposing of such materials. (§ 3160, subd. (d)(1)(A)-(G).) Senate Bill No. 4 requires
that the Department, in considering permit applications, “evaluate the quantifiable risk of
the well stimulation treatment.” (§ 3160, subd. (d)(3)(C).) If granted, the well
stimulation permit is valid for one year. (§ 3160, subd. (d)(4).)
4 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).)
5
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, 11 Cal.App.5th at p. 1213 [“ ‘As directed in Public Resources Code
section 3161, [the Department] must allow, and will allow, well stimulation to proceed if
the operator has provided all of the required information and certifications’ ”].) As
relevant here, Senate Bill No. 4 contemplates that the Department will commence “the
preparation of an environmental impact report (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).) As we shall discuss, the meaning of
the mandate to prepare an EIR “pursuant to CEQA” is a central question posed by this
appeal.
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
6
CEQA where applicable.” (Association of Irritated Residents v. Department of
Conservation, supra, 11 Cal.App.5th at p. 1213.)
B. The EIR
The Department issued a notice of preparation of an EIR on November 15, 2013,
and published a draft EIR on January 14, 2015. The Department circulated the draft EIR
for an extended 62-day public review and comment period, and conducted public
meetings to receive comments on it. The Department responded to these comments and
incorporated revisions into the final EIR, which was certified on July 1, 2015, as required
by Senate Bill No. 4. (§ 3161, subd. (b)(3)(B)(i).)
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].)5
5 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).
7
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 draft EIR contained mitigation measures designed to minimize some of the
environmental impacts of well stimulation treatments, including some of the indirect
impacts referenced above. During the comment period, however, a number of
commentators, including the Western States Petroleum Association (Petroleum
Association), argued that some of the mitigation measures included in the draft EIR
would be “underground regulations” in violation of the Administrative Procedures Act
(Gov. Code, § 11340 et seq. (the APA)).6 (See generally Center for Biological Diversity
v. Department of Fish & Wildlife (2015) 234 Cal.App.4th 214, 258-264 (Center for
Biological Diversity) [imposition of statewide mitigation measures on private fish
6 Petroleum Association is a respondent in intervention in this action.
8
vendors were “underground regulations” in violation of the APA].) Accordingly, the
Department eliminated some of the previously proposed mitigation measures from the
final EIR, converting some into formal regulations and compiling others into a
“Mitigation Policy Manual” that the Department proposed to use as a starting point for
evaluating applications for permits to conduct well stimulation treatments at specific
sites. Although the EIR analyzes some of the indirect impacts of well stimulation
treatments, the Department determined that such indirect impacts could not be mitigated
by conditions of approval imposed on well stimulation treatment permits. As we shall
discuss, the Center contends the EIR fails to adopt enforceable mitigation measures, and
fails to mitigate indirect impacts of well stimulation treatments.
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.
For all its heft, the EIR omits some of the elements commonly found in EIR’s,
such as findings and a mitigation monitoring and reporting program. As we shall discuss,
the Center contends these omissions violate CEQA and Senate Bill No. 4.
9
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
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 Natural Resources Agency
commissioned the California Council on Science and Technology (Council) to prepare
the study, which was to have been completed on or before January 1, 2015.7 (§ 3160,
subd. (a).)
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
7 The Department was not involved in the preparation of the study.
10
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.
E. Procedural History
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
11
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.
II. DISCUSSION
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 to the CEQA
cause of action, the denial of its request for judicial notice of volumes two and three of
the study, and the denial of its petition for writ of mandate. We will begin our analysis
with an overview of CEQA and the relevant requirements for EIR’s, bearing in mind that
the present EIR charts a different course than most. We will then address the Center’s
contentions and applicable standards of review.
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) 62 Cal.4th 369, 382 (CBIA)).
12
“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, 62 Cal.4th at p. 382.) “Second, if the
proposed activity is a project, the agency must next decide whether the project is exempt
from the CEQA review process under either a statutory exemption [citation] or a
categorical exemption set forth in the CEQA Guidelines [Citations]. If the agency
determines the project is not exempt, it must then decide whether the project may have a
significant environmental effect. And where the project will not have such an effect, the
agency ‘must “adopt a negative declaration to that effect.” ’ ” (Ibid.) “Third, if the
agency finds the project ‘may have a significant effect on the environment,’ it must
prepare an EIR before approving the project.” (Ibid.)
“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, 62 Cal.4th at p. 383.)
B. Demurrer to CEQA Cause of Action
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 error must be shown. (Denham v. Superior Court
13
(1970) 2 Cal.3d 557, 564; see Baldwin v. AAA Northern California, Nevada & Utah Ins.
Exchange (2016) 1 Cal.App.5th 545, 549 [“Appellant bears the burden of demonstrating
that the trial court erred in sustaining the demurrer”].) “ ‘ “Although our review of a
[demurrer] is de novo, it is limited to issues [that] have been adequately raised and
supported in plaintiffs’ brief. [Citations.] Issues not raised in an appellant’s brief are
deemed waived or abandoned.” ’ ” (Pfeifer v. Countrywide Home Loans, Inc. (2012) 211
Cal.App.4th 1250, 1282; see also Cahill v. San Diego Gas & Electric Co. (2011) 194
Cal.App.4th 939, 956 [court will not develop appellants’ arguments for them].)
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, or a reasonably foreseeable indirect physical change
in the environment, and which is any of the following: [¶] (a) An activity undertaken by
any public agency”]; and see Guidelines, § 15378, subd. (a) [defining “project,” in
pertinent part, as “the whole of an action, which has a potential for resulting in either a
direct physical change in the environment, or a reasonably foreseeable indirect physical
14
change in the environment, and that is any of the following: [¶] (1) An activity directly
undertaken by any public agency including but not limited to public works construction
and related activities clearing or grading of land, improvements to existing public
structures, enactment and amendment of zoning ordinances, and the adoption and
amendment of local General Plans or elements thereof pursuant to Government Code
Sections 65100-65700”].) This argument does not help the Center.
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.8 (§ 3161, subd. (b)(3)(A).)
We therefore reject the Center’s contention that the Department carries out a program or
“project” of well stimulation in the state.9 As we shall discuss, our conclusion compels
us to reject many of the Center’s other contentions, a number of which proceed from the
same premise.
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
8 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.
9 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.”
15
judicial notice. (In re Social Services Payment Cases (2008) 166 Cal.App.4th 1249,
1271.) A trial court’s decision “not to take judicial notice will be upheld on appeal unless
the reviewing court determines that the party furnished information to the trial court that
was so persuasive that no reasonable judge would have refused to take judicial notice of
the matter. [Citation.]” (Willis v. State of California (1994) 22 Cal.App.4th 287, 291.)
The Center fails to establish an abuse of discretion.
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 should have
supplemented the EIR or issued a subsequent EIR on the basis of new information in the
later volumes. But the Center did not argue this theory of relevance in the trial court.
Instead, the Center sought judicial notice of the second and third volumes on the ground
that they were relevant to the claim that the Department violated Senate Bill No. 4 by
failing to incorporate the study into the EIR (a claim we take up momentarily). The trial
court denied the request, reasoning that that the second and third volumes were not before
the Department at the time the EIR was prepared and certified. (See Western States
Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 573, fn. 4 [holding that it would
be improper to take judicial notice of evidence that was both absent from the
administrative record and not before the agency at the time of its decision because such
evidence is not relevant].)
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) 9 Cal.3d 626,
640 [party may not raise for first time on appeal a new theory to support or contest
admissibility].) The trial court was not obliged to read between the lines of the Center’s
request for judicial notice to divine an unasserted theory of relevance, and we cannot say
16
the court abused its discretion for failing to do so. We therefore reject the Center’s
challenge to the denial of the request for judicial notice.10
D. The EIR Complies with Senate Bill No. 4 and CEQA
The Center argues 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 (which was available at the time the EIR was certified) and failing to supplement
the EIR or issue a subsequent EIR after the second and third volumes were issued. The
Center also argues the Department violated CEQA by: (1) failing to analyze indirect or
secondary impacts of well stimulation treatments; (2) failing to adequately analyze the
use of well stimulation treatments at the Wilmington, Inglewood and Sespe oil fields; (3)
failing to adopt enforceable mitigation measures; and (4) failing to make findings and
adopt a mitigation monitoring and reporting plan.
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 court, and our
inquiry extends only to whether there has been a prejudicial abuse of discretion on the
part of the agency. (In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1161 (Bay-Delta);
§§ 21168.5 [“In any action or proceeding . . . to attack, review, set aside, void or annul a
determination, finding, or decision of a public agency on the grounds of noncompliance
with this division, the inquiry shall extend only to whether there was a prejudicial abuse
of discretion”], 21005, subd. (a) [noncompliance with information disclosure
requirements may “constitute a prejudicial abuse of discretion”].) “Where an EIR is
challenged as being legally inadequate, a court presumes a public agency’s decision to
certify the EIR is correct, thereby imposing on a party challenging it the burden of
10 The Center has not filed a request for judicial notice in this court.
17
establishing otherwise.” (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523,
530.)
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) 6 Cal.5th 502, 512.)
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.
2. Program EIR’s and Tiering
“CEQA allows public agencies to use special types of EIR’s to simplify
preparation and avoid duplication. [Citations.] [¶] One of those EIR’s is a program
EIR.” (Center for Biological Diversity, supra, 234 Cal.App.4th at p. 233.) A program
18
EIR is “an EIR which may be prepared on a series of actions that can be characterized as
one large project” and are related in specified ways. (Guidelines, § 15168, subd. (a);
Town of Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314,
343 (Town of Atherton).) By contrast, “[a] project EIR is typically used for a specific
development project.” (North Coast Rivers Alliance v. Kawamura (2015) 243
Cal.App.4th 647, 664; see also Guidelines, § 15161 [“The most common type of EIR
examines the environmental impacts of a specific development project”].) As our
Supreme Court has noted, “a program EIR is distinct from a project EIR, which is
prepared for a specific project and must examine in detail site-specific considerations.”
(Bay-Delta, supra, 43 Cal.4th at p. 1169 [citing Guidelines, § 15161].) It is undisputed
that the instant EIR was a program EIR, rather than a project EIR.
“Program EIR’s are commonly used in conjunction with the process of tiering.”
(Bay-Delta, supra, 43 Cal.4th at p. 1170.) “ ‘Tiering’ refers to using the analysis of
general matters contained in a broader EIR (such as one prepared for a general plan or
policy statement) with later EIR[’]s and negative declarations on narrower projects;
incorporating by reference the general discussions from the broader EIR; and
concentrating the later EIR or negative declaration solely on the issues specific to the
later project.” (Guidelines, § 15152, subd. (a); see also Bay-Delta, supra, at p. 1170[“Tiering is ‘the coverage of general matters in broader EIR[’]s (such as on general plans
or policy statements) with subsequent narrower EIR[’]s’ ”].) “Tiering is proper ‘when it
helps a public agency to focus upon the issues ripe for decision at each level of
environmental review and in order to exclude duplicative analysis of environmental
effects examined in previous environmental impact reports.’ ” (Bay-Delta, supra, at p.
1170.)
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
19
are not determined by the first-tier approval decision but are specific to the later phases’ ”
(Bay-Delta, supra, 43 Cal.4th at p. 1170; Town of Atherton, supra, 228 Cal.App.4th at
p. 346.) Second, the sufficiency of a program EIR must be reviewed in light of what is
reasonably feasible, given the nature and scope of the project. (Center for Biological
Diversity, supra, 234 Cal.App.4th at p. 234; see also Friends of Mammoth v. Town of
Mammoth Lakes Redevelopment Agency (2000) 82 Cal.App.4th 511, 533 [“ ‘The level of
specificity of an EIR is determined by the nature of the project and the “rule of reason”
[citation], rather than any semantic label accorded to the EIR’ ”]; and see Guidelines,
§ 15151 [“An evaluation of the environmental effects of a proposed project need not be
exhaustive, but the sufficiency of an EIR is to be reviewed in the light of what is
reasonably feasible”].) Third, in considering a challenge to a program EIR, we focus on
“whether the EIR includes enough detail ‘to enable those who did not participate in its
preparation to understand and to consider meaningfully the issues raised by the proposed
project.’ [Citations.]” (Sierra Club v. County of Fresno, supra, 6 Cal.5th at p. 516; see
also San Franciscans for Livable Neighborhoods v. City and County of San Francisco
(2018) 26 Cal.App.5th 596, 608 [“in considering a challenge to a program EIR, ‘ “ it is
unconstructive to ask whether the EIR provided ‘project-level’ as opposed to ‘program-
level’ detail and analysis. Instead, we focus on whether the EIR provided ‘decision
makers with sufficient analysis to intelligently consider the environmental consequences
of [the] project’ ” ’ ”].) As previously discussed, this inquiry presents a mixed question
of law and fact, and is generally subject to independent review. (Sierra Club v. County of
Fresno, supra, at p. 516.)
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.
20
(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) 214 Cal.App.4th 1301, 1311.)
“ ‘Our fundamental task in interpreting a statute is to determine the Legislature’s intent so
as to effectuate the law’s purpose.’ ” (Carson Citizens for Reform v. Kawagoe (2009)
178 Cal.App.4th 357, 365; see Fluor Corp. v. Superior Court (2015) 61 Cal.4th 1175,
1198.) “ ‘ “We begin with the plain language of the statute, affording the words of the
provision their ordinary and usual meaning and viewing them in their statutory context,
because the language employed in the Legislature’s enactment generally is the most
reliable indicator of legislative intent.” [Citations.] The plain meaning controls if there is
no ambiguity in the statutory language. [Citation.] If, however, “the statutory language
may reasonably be given more than one interpretation, ‘ “ ‘courts may consider various
extrinsic aids, including the purpose of the statute, the evils to be remedied, the
legislative history, public policy, and the statutory scheme encompassing the
statute.’ ” ’ ” ’ ” (Fluor Corp., supra, at p. 1198.)
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
staggered deadlines for the preparation of two informational documents dealing with the
same subject matter. But nothing in Senate Bill No. 4 suggests that the Legislature
21
intended to link the preparation of the study to the preparation of the EIR. Section 3160,
which requires the completion of the study, says nothing about the EIR. (§ 3160.) And
section 3161, which requires the preparation of an EIR, says nothing about the study. (§
3161.) Neither statute connects either document to the other, and nothing suggests that
any delay in preparing the study would or could excuse the Department from certifying
the EIR “no later than July 1, 2015.” We therefore reject the Center’s contention that
Senate Bill No. 4 required the Department to incorporate the study into the EIR.
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 next argues that the Department violated CEQA by failing to consider
the first volume of the study, which was released on January 14, 2015, before the
certification date. CEQA requires that an EIR make “a good faith effort at full
22
disclosure.” (Guidelines, § 15151.) “An EIR should be prepared with a sufficient degree
of analysis to provide decisionmakers with information which enables them to make a
decision which intelligently takes account of environmental consequences. An
evaluation of the environmental effects of a proposed project need not be exhaustive, but
the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible.
Disagreement among experts does not make an EIR inadequate, but the EIR should
summarize the main points of disagreement among experts. The courts have looked not
for perfection but for adequacy, completeness, and a good faith effort at full disclosure.”
(Ibid.; see also Berkeley Keep Jets Over the Bay Committee v. Board of Port
Commissioners (2001) 91 Cal.App.4th 1344, 1367 [“ ‘ “ ‘Where comments from
responsible experts or sister agencies disclose new or conflicting data or opinions that
cause concern that the agency may not have fully evaluated the project and its
alternatives, these comments may not simply be ignored. There must be good faith,
reasoned analysis in response’ ” ’ ” (italics omitted)].)
The EIR discloses the existence of the first volume, expresses a willingness to
consider the as yet unreleased future volumes, and observes that, “as of the time that the
Final EIR was published, no substantive conflicts between its conclusions and the
conclusions of Volume I of the Independent Study had been identified.” Although the
EIR does not delve into the substance of the first volume, it clearly discloses the
existence of the study and makes a reasonable effort to inform the public of the absence
of any identified “substantive conflicts” between the conclusions set forth in the two
documents. We conclude these disclosures were adequate under the circumstances.
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
23
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 Department improperly relied on confidential business plans
provided by the Petroleum Association to conclude that, “California is anticipated to
experience declining production with the management of older reservoirs.” The Center
argues that the Department should have disclosed the study’s prediction, and provided a
reasoned basis, supported by substantial evidence, for its decision to rely on the
supposedly contradictory information supplied by the Petroleum Association. We do not
perceive any necessary inconsistency between these predictions.
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.
24
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 will “gradually
decline over the next 25 years.”
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 opinion or conclusion set forth in the first
volume. We therefore reject the Center’s contention that the Department failed to
consider conflicting opinions or conclusions set forth in the first volume.
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 Organization v.
City of San Diego (2018) 28 Cal.App.5th 656, 666 [“The project changes, changed
circumstances, and new information referred to in section 21166 only require a
25
subsequent EIR if they involve new significant environmental effects, substantially more
severe significant environmental effects, or newly feasible or different mitigation
measures which would substantially reduce one or more significant environmental
effects”].)
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) 6 Cal.App.5th 1237, 1248.) We cannot reach this question
on the record before us. Because the second and third volumes have not been made part
of the record, and are not the subject of any pending request for judicial notice, we are
unable to determine whether they contain significant new information that would
necessitate a subsequent or supplemental EIR. We therefore reject the Center’s
contention that the Department was required to issue a subsequent or supplemental EIR
following the release of the second and third volumes of the study.
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.
As previously discussed, Senate Bill No. 4 required 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).) The Center correctly observes that an EIR prepared “pursuant to [CEQA]”
would ordinarily include an analysis of the reasonably foreseeable indirect effects of a
26
project. (See Placerville Historic Preservation League v. Judicial Council of California
(2017) 16 Cal.App.5th 187, 195 [“an EIR must identify and discuss the ‘ “ ‘significant
environmental effects’ ” ’ of the proposed project [citation], which are defined as the
‘direct, and reasonably foreseeable indirect ‘physical changes in the environment’ ”].) It
is also true, as the Center notes, that the use of the word “any” signals an intent to
encompass a broad range of potential impacts, rather than a narrow subset of direct
impacts. (See Kurz v. Syrus Systems, LLC (2013) 221 Cal.App.4th 748, 762 [“ ‘ “The
ordinary meaning of the word ‘any’ is clear, and its use in a statute unambiguously
reflects a legislative intent for that statute to have a broad application” ’ ”].) But the
Center’s argument for an expansive interpretation of section 3161, subdivision (b)(3)(A)
gives short shrift to the rest of the statute, which reflects a legislative intent to limit the
scope of the EIR to well stimulation treatments only.
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, 16 Cal.App.5th at p. 195.) But Senate
27
Bill No. 4 indicates that the Department was not expected to analyze such activities,
however characterized. Thus, Senate Bill No. 4 and CEQA are inconsistent, so far as the
scope of the EIR is concerned.
“ ‘A court must, where reasonably possible, harmonize statutes, reconcile seeming
inconsistencies in them, and construe them to give force and effect to all of their
provisions. [Citations.] This rule applies although one of the statutes involved deals
generally with a subject and another relates specifically to particular aspects of the
subject.’ [Citation.] Thus, when ‘ “two codes are to be construed, they ‘must be
regarded as blending into each other and forming a single statute.’ [Citation.]
Accordingly, they ‘must be read together and so construed to give effect, when possible,
to all the provisions thereof.’ ” ’ ” (Pacific Palisades Bowl Mobile Estates, LLC v. City
of Los Angeles (2012) 55 Cal.4th 783, 805.)
Reading section 3161 as a whole, and harmonizing the statute with the rest of the
statutory scheme, we are convinced that Senate Bill No. 4 required the Department to
prepare an EIR analyzing the environmental effects of well stimulation treatments only,
as narrowly defined by section 3157. Nothing in Senate Bill No. 4 required an analysis
of indirect impacts caused by the additional oil and gas production made possible by well
stimulation treatments, and we do not believe that such a sweeping mandate can be
reasonably implied from the instruction to prepare an EIR “pursuant to CEQA.” We
reiterate that the purpose of Senate Bill No. 4 was to address the dearth of information
about the environmental effects of well stimulation treatments in particular, not oil and
gas production in general. Our interpretation effectuates this purpose.11
11 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
28
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 Policy Manual, and reasonably concluded that potential
mitigation measures for the indirect effects of well stimulation treatments were infeasible.
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
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, 43 Cal.4th at p. 1176; Town of Atherton, supra, 228
Cal.App.4th at p. 346.)
29
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 purposes only, in the absence of any particular project
for approval, we do not believe that the Department had an obligation to adopt formal
mitigation measures. We need not decide this issue, however, as we conclude that: (1)
the Department committed to specific performance criteria to mitigate the direct effects
of well stimulation treatments in the Mitigation Policy Manual; and (2) the Department
reasonably concluded that potential mitigation measures for the indirect effects of well
stimulation treatments were infeasible.
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, 234 Cal.App.4th
214, which held, among other things, that mitigation measures adopted by a lead agency
after preparation of an EIR for a statewide program could, in some circumstances,
constitute illegal “underground regulations” in violation of the APA. Relying on Center
for Biological Diversity, supra, the Petroleum Association and others argued that some of
the mitigation measures in the draft EIR would likewise constitute illegal underground
regulations. (Id. at p. 258.) Accordingly, the Department converted some of the
mitigation measures in the draft EIR into formal regulations, and compiled others in the
Mitigation Policy Manual.
Generally, it is improper to defer the formulation of mitigation measures.
(Guidelines, § 15126.4, subd. (a)(1)(B); POET, LLC v. State Air Resources Bd. (2013)
218 Cal.App.4th 681, 735.) However, an exception to this general rule applies when the
agency has committed itself to specific performance criteria for evaluating the efficacy of
30
the measures to be implemented in the future, and the future mitigation measures are
formulated and operational before the project activity that they regulate begins. (POET,
supra, at p. 738.) Both conditions are met here.
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; geology, soils, and mineral resources; greenhouse gas emissions;
hazards and hazardous materials; groundwater resources; surface water resources; noise
and vibration; public services; risk of upset/public and worker safety; transportation and
traffic; and utilities and service systems. The Mitigation Policy Manual also includes
guidelines and checklists to ensure that the Department makes all relevant inquiries when
acting as lead agency in evaluating future well stimulation projects. The Center does not
31
explain how the mitigation measures set forth in the Mitigation Policy Manual
supposedly fall short, and we presume that the Department’s recommendations are based
on knowledgeable good faith. (See Evid. Code, § 664; Laurel Heights Improvement
Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 393 [“A court’s task is
not to . . . determine . . . whether adverse effects . . . could be better mitigated. We have
neither the resources nor the scientific expertise to engage in such analysis”].)
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
32
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 from the final EIR. Substantial evidence
supports the Department’s determination that it was not feasible to mitigate the indirect
effects of well stimulation treatments by imposing conditions on well stimulation permits.
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) 2 Cal.5th 918, 937.)
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
33
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
identification number assigned by the Department, and other site-specific information.
(Cal. Code Regs., tit. 14, § 1783.1, subd. (a)(6)-(7).) Thus, a well stimulation permit can
only be finalized in conjunction with a well drilling permit, which would be subject to
separate conditions of approval for such direct effects as emissions, traffic, and disposal
of wastewater. (§ 3203.) The Department could reasonably conclude that it would be
more efficacious, from a regulatory standpoint, to mitigate such effects directly, by
imposing conditions of approval on well drilling permits, rather than indirectly, by
imposing conditions of approval on well stimulation permits. (See, e.g., California
Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 998
[“ ‘ “ ‘feasibility’ under CEQA encompasses ‘desirability’ to the extent that desirability is
34
based on a reasonable balancing of the relevant economic, environmental, social, and
technological factors” ’ ”].) That the Center might have chosen another approach does
not establish that the Department abused its discretion in concluding that mitigation
measures for the indirect effects of well stimulation treatments were infeasible.
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) 13 Cal.App.4th 31, 49 [“Nothing in CEQA or the Guidelines requires
the mitigation monitoring plan to be in the EIR”].) As previously discussed, there was no
project before the Department before approval, and the Department was not carrying out
a program of well stimulation treatments in the State. Therefore, there was no
requirement that the Department make findings or adopt a mitigation monitoring plan in
the EIR.
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 detailed discussion of the
Wilmington, Inglewood, and Sespe fields. The Center argues these field-specific
analyses are legally inadequate and cannot serve as the basis for future environmental
35
review. Specifically, the Center argues the field-specific analyses merely cut and paste
the discussion of air quality impacts and mitigation proposals from the statewide analysis,
and are consequently the same as, and no more specific than, the analysis of significant
impacts and mitigation measures for the state as a whole.12 We conclude the Center has
failed to meet its burden to demonstrate that the EIR is inadequate.
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, 163
Cal.App.4th at p. 530; Concerned Citizens of South Central L.A. v. Los Angeles Unified
School Dist. (1994) 24 Cal.App.4th 826, 836 [“ ‘ “Under CEQA, an EIR is presumed
adequate [citation], and the plaintiff in a CEQA action has the burden of proving
otherwise” ’ ”].) Here, the Center has established only that the field-specific analysis of
air quality impacts and proposed mitigation measures is the same as the statewide
analysis of those subjects. The Center has not identified any evidence in the record
showing that the air quality impacts of well stimulation treatments at the Wilmington,
Inglewood, and Sespe fields are different from the air quality impacts for the state as a
whole, or that the proposed mitigation measures for those impacts are or should be
different. The Center invites us to assume that the sameness of the analysis establishes a
failure of analysis, but we could just as easily assume that the well stimulation treatments
at the Wilmington, Inglewood, and Sespe fields are representative of well stimulation
treatments statewide. In the absence of an affirmative showing that the EIR’s field-
specific analyses were inadequate, we must presume that the Department’s decision to
certify the EIR was correct. (Sierra Club v. City of Orange, supra, at p. 530.)
12 This allegation does not appear in the operative petition.
36
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 program EIR’s].” Although
the EIR’s field-specific analyses were “intended to facilitate [the Department’s] future
environmental reviews for the purposes of CEQA compliance,” nothing suggests that
they were intended to—or did, in fact—displace or supplant any such review.
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.
37
III. DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1) & (2).)
/S/
RENNER, J.
We concur:
/S/
BLEASE, Acting P. J.
/S/
HULL, J.
38
Filed 6/14/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
CENTER FOR BIOLOGICAL DIVERSITY, C083913
Appellant, (Super. Ct. No.
34201580002149CUWMGDS)
v.
ORDER CERTIFYING
CALIFORNIA DEPARTMENT OF OPINION FOR
CONSERVATION, DIVISION OF OIL, GAS AND PUBLICATION
GEOTHERMAL RESOURCES et al.,
[NO CHANGE IN
Respondents. JUDGMENT]
THE COURT:
The opinion in the above-titled matter filed on May 16, 2019, was not certified for
publication in the official reports. For good cause it now appears that the opinion should
be published in the official reports and it is so ordered. There is no change in the
judgment.
EDITORIAL LISTING
39
APPEAL from a judgment of the Superior Court of Sacramento County, Michael
P. Kenny, Judge. Affirmed.
Center for Biological Diversity, Clare Lakewood, Maya Golden-Krasner, Kassia
Siegel; Stanford Law School and Deborah A. Sivas for Appellant.
Xavier Becerra, Attorney General, John A. Saurenman, Assistant Attorney
General, Mitchell E. Rishe and Andrew M. Vogel, Deputy Attorneys General, for
Respondent California Department of Conservation, Division of Oil, Gas, and
Geothermal Resources.
Pillsbury Winthrop Shaw Pittman, Margaret Rosegay, Norman F. Carlin and
Blaine I. Green for Respondent Western States Petroleum Association.
BY THE COURT:
/S/
BLEASE, Acting P. J.
/S/
HULL, J.
/S/
RENNER, J.
40