By William W. Abbott & Kristen Kortick
Center for Biological Diversity v. Department of Conservation, etc. (2019) 36 Cal.App.5th 210.
The question “how much is enough?” for programmatic EIRs remains an ongoing challenge for CEQA practitioners. Programmatic EIRs are frequently prepared in conjunction with broad legislative acts where specific detail as to how the policy will be administered in the future is lacking. This makes programmatic EIRs easy targets for project opponents who can always identify another study to be performed or another variable to be considered. Neither the CEQA statute nor the Guidelines provide a meaningful metric to judge sufficiency. Ultimately it is left to the reviewing courts to sort it out. The Third Appellate District addressed this issue in a recent decision involving a statutorily mandated EIR prepared by the state Department of Conservation (“Department”) concerning fracking. The legal setting is unusual because (a) the Legislature mandated the preparation of the EIR and (b) the Department did not approve any project. While the threshold legal issue involved ripeness, the Court of Appeal also addressed programmatic EIRs, EIR scope (albeit in the context of a statutorily defined project), mitigation measures, and findings.
In this appeal, the court was asked to consider the sufficiency of a programmatic EIR mandated by the legislature when Senate Bill 4 (“SB 4”) passed in 2013 (Chap. 313, Stats. 2013). SB 4 required the Department to consider the environmental effects of well stimulation (fracking) in a programmatic EIR due on or before July 1, 2015. SB 4 also required a separate independent study (“Study”) by the Natural Resources Agency on well stimulation treatments, due on or before January 1, 2015. The Department’s EIR was a programmatic document for statewide impacts but also included a more refined examination of the potential impacts in three particular oil and gas fields: Wilmington, Inglewood, and Sespe. The draft EIR contained proposed mitigation measures. However, industry representatives raised concerns that draft mitigation measures may constitute underground regulations. In response, certain measures were converted to formal regulations and others were embodied into a “Mitigation Policy Manual”. The Department finalized and certified the EIR resulting in the Center for Biological Diversity (“CBD”) challenging the EIR through a writ of mandate along with a claim for declaratory relief. CBD complained as...
