Kern County’s CEQA Mitigation Measure For Wind Farm Project Relying On FAA Review and Determination of Aviation Safety Impacts Is Legally Feasible, Holds Fifth District

by Miller Starr Regalia
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Alleged land use conflicts between newly proposed land uses and existing nearby airports are nothing new, and can produce heated CEQA battles as project opponents often raise “life safety” issues as potential project impacts. This scenario was exemplified in a recent Fifth District Court of Appeal decision, which it ordered certified for partial publication after it was initially filed on June 30, 2014 as an unpublished opinion. Citizens Opposing a Dangerous Environment v. County of Kern, et al. (North Sky River Energy, LLC, Jawbone Wind Energy, LLC, et al., Real Parties in Interest) (5th Dist. 2014), __________ Cal.App.4th ___________, 2014 WL 3696543. The Court of Appeal affirmed the trial court’s judgment denying a petition for writ of mandate and upholding the adequacy of Kern County’s EIR and its project approvals (rezoning and a CUP) for a 339-megawatt, 116 wind turbine generator (“WTG”) wind farm project (the “Project”) to be constructed near a private (and apparently unpermitted) airport (the Kelso Valley Airport, or “KVA”) in the Tehachapi Wind Resource Area.

The County’s draft EIR (“DEIR”) identified as a potentially significant environmental impact the possible safety hazards posed by the WTGs (which would each exceed 400 feet in height) to aircraft and gliders using KVA; it described a mitigation measure (“MM 4.8-8”) requiring the project applicants to obtain from the Federal Aviation Administration (“FAA”) a “Determination of No Hazard to Air Navigation” for each WTG prior to County’s issuance of building permits. County’s Board found MM 4.8-8 would reduce the aviation safety impact to less than significant, certified the Final EIR, and approved the Project. A citizens group (“CODE”) – which unsurprisingly included KVA’s owner – bitterly disagreed, and brought a CEQA action challenging the adequacy of the FEIR. The trial court denied the writ, and CODE appealed.

CODE primarily argued on appeal that MM 4.8-8 was legally infeasible and constituted an abdication of County’s statutory duty under CEQA to identify a feasible mitigation measure for the Project’s aviation safety impact. It reasoned that reliance on the FAA’s “hazard/no hazard” determinations could not mitigate the impact since under federal law – which occupies the entire field of aviation safety – the FAA was powerless to prohibit or limit construction it deems dangerous so as to enforce its own determinations. According to CODE, this rendered MM 4.8-8 legally infeasible since “in lieu of exercising its power to regulate land use [citations], [the County] “hid [] behind the fig leaf of a non-existent federal preemption.””

Not so, held the Court of Appeal in the published portion of its opinion, pointing out that, under MM 4.8-8, “[i]f the FAA found any adverse effects on aeronautical operations, [the Project applicant], in consultation with the FAA, had to remedy those effects before they could obtain building permits from the County” and that “[i]f no such effects were found, [they] were nonetheless obligated to observe the federal agency’s rules and regulations, so as to maintain this determination, and submit proof of compliance to [County].” Citing the CEQA rule that a “condition requiring compliance with regulations is a common and reasonable mitigation measure, and may be proper where it is reasonable to expect compliance” (see Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, 906), the Court concluded MM 4.8-8 “could avoid or minimize significant impacts to aviation safety” and was thus legally feasible.  Even though (as the Court’s opinion analyzed in some detail) federal law preempted the field and gave the FAA “sole discretion” to regulate air safety, and even though the FAA could not enforce its own “hazard/no hazard” determinations, such determinations nonetheless had substantial practical impact in areas such as acquiring insurance, securing financing, or (as relevant here) obtaining state or local land use approvals. Thus, “while the FAA could not halt construction of... WTG’s if it deems those structures hazardous, under MM 4.8-8 the County was bound to do so through the exercise of its police power.” (In the unpublished portion of its opinion, the Court of Appeal went on to consider and reject CODE’s remaining, more pedestrian CEQA arguments, holding that County was not required to respond to late comments; substantial evidence supported County’s conclusion that MM 4.8-8 mitigated significant aviation safety impacts; and that County was not required to consider or adopt CODE’s proffered mitigation or the EIR’s “environmentally superior alternative.”)

The Court of Appeal’s decision provides useful guidance to local agencies and project proponents considering projects in the vicinity of existing airports, and a helpful primer on the interaction of federal aviation law, CEQA, and the local police power in such situations.

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Miller Starr Regalia
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