In the unpublished opinion Center for Biological Diversity v. California Department of Conservation, Division of Oil, Gas, and Geothermal Resources et al. (2019 WL 2133616), the Third District Court of Appeal upheld a program EIR prepared by the Department of Conservation to consider the environmental effects of well stimulation treatments, such as hydraulic fracturing. The Department was required to prepare the EIR at the directive of Senate Bill No. 4, along with an independent study on well stimulation activities. S.B. 4 allowed well stimulation activities to continue during preparation of the EIR and studies.

The Department of Conservation certified the EIR after circulating a draft for public comments. Center for Biological Diversity filed litigation challenging the EIR for violating CEQA and S.B. 4. The Center argued, among other things, that the Department improperly “approved” a program of well stimulation, failed to incorporate the entire study required by S.B. 4 in the EIR, failed to adequately analyze well stimulation activities in various fields, and failed to adopt enforceable mitigation measures. The trial court rejected these arguments, and the Third District affirmed the trial court’s ruling on appeal.

The Third District explained that the Center improperly conflated regulating activities with “carrying out” activities. Thus, the Department was not directly undertaking any specific well stimulation activity. As a result, the Department’s preparation of a program EIR, rather than a project-specific EIR, was appropriate. Site specific impacts and mitigation measures would be discussed and adopted in later project EIRs. The Court also found that the Department did not improperly defer the formulation of mitigation measures, since specific performance standards were identified.