Three oil and gas industry associations proposed an amendment to the Kern County Zoning Ordinances to streamline permitting for oil and gas exploration and production. The amendments would create a ministerial review process for permit applications, with mitigation measures incorporated. The mitigation measures would come from the EIR prepared to consider the potential environmental impacts of adopting the amendments, which would affect 3,700 square miles of the County. The draft EIR was released in July 2015, and Kern County certified the final EIR and approved the amendments on November 9, 2015. A farming company and several environmental groups filed a petition challenging the approvals.

The superior court rejected the petition but on appeal, the Fifth District Court of Appeal issued a lengthy, partially published, opinion striking down portions of the approval. The court cited the Sierra Club v. Fresno (2018) 6 Cal.5th 502 to apply the standard of review to each argument addressed. For example, the court upheld the EIR water supply analysis based on substantial evidence review and upheld the EIR analysis of drought impacts as a question of law.

The Court overturned the EIR and approvals on several issues, including mitigation of water supply impacts. The court concluded that the mitigation measures for water supply impacts impermissibly deferred mitigation by failing to establish performance standards or committing to mitigation. The court also took issue with the County’s statement of overriding considerations, since the findings did not explain whether the mitigation measures would be at least partially effective in reducing significant water supply impacts.

The Fifth District also appears to engage in judicial activism by issuing a blanket conclusion that agricultural conservation easements do not reduce a project’s impacts on agricultural land, and thus, do not provide effective mitigation for the conversion of agricultural land. In contrast, the court upholds extremely similar mitigation measures for biological impacts. We disagree with the court’s conclusions as to agricultural impacts, however practitioners in the Fifth District should pay special attention to agricultural impacts.