V Lions Farming, LLC v. County of Kern (March 7, 2024) 100 Cal.App.5th 412

This is the second appeal case addressing whether the County of Kern complied with CEQA in approving an ordinance streamlining the permitting process for new oil and gas wells by establishing a ministerial permit process ( King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814 ( King & Gardiner )). In King & Gardiner , the Court determined the EIR prepared for the ordinance was defective and ordered the issuance of a writ of mandate directing the County of Kern to correct those defects before reapproving the ordinance. The County prepared a revised supplemental recirculated EIR (SREIR) and an addendum, certified the completion of the SREIR, and adopted a slightly modified ordinance. After the County of Kern filed a return, the superior court determined the CEQA violations had been corrected and discharged the writ. This appeal followed.

In the published part of this opinion, the Court considered whether an agricultural conservation easement (ACE) partially mitigates the conversion of agricultural land caused by the project. In King & Gardiner the Court decided a narrow aspect of the efficacy of ACEs as mitigation by concluding ACEs were not effective at reducing the project’s conversion of agricultural land to a less-than-

xxxvi

Summary of Key 2024 CEQA Court Cases

Association of Environmental Professionals 2025

significant level for purposes of CEQA. In the present case, the Court addressed the broader issue of whether ACEs qualify as compensatory mitigation for purposes of State CEQA Guidelines Section 15370 (e), which defines mitigation to include “[c]ompensating for the impact by … providing substitute resources.” To promote CEQA’s purpose of long-term protection of the environment, the Court joined the First District Court of Appeal in interpreting the phrase “providing substitute resources” to encompass preserving existing agricultural land ( Masonite Corp. v. County of Mendocino (2013) 218 Cal.App.4th 230). Therefore, ACEs qualify as compensatory mitigation even though they do not replace or otherwise offset the acres of agricultural land converted by the project—that is, they do not ensure the project results in no net loss of agricultural land.

Agricultural mitigation was the only issue analyzed in this opinion that was published and therefore established precedent. The remainder of the opinion was unpublished, but has been included here for informational purposes only.

In the unpublished part of this opinion, the Court examined whether the SREIR’s discussion of the cancer risk associated with the drilling of more than one well near a sensitive receptor complied with CEQA. It concluded that discussion was inadequate for purposes of CEQA because it lacked sufficient information for the public and decision makers to meaningfully understand the cancer risk resulting from multiple wells drilled outside the 210-foot setback distance specified in the ordinance. The health risk assessment for the drilling of multiple wells used a setback distance of just under 1,000 feet instead of analyzing reasonably foreseeable situations that could arise under the ordinance’s actual setback distances. This informational defect must be corrected before the ordinance is reapproved. The Court also concluded that the County of Kern had misconstrued CEQA when it decided to remove a water supply mitigation measure because “there is no requirement in CEQA to perform an analysis or provide mitigation for impacts to low-income or disadvantaged communities.” While social and economic effects are not themselves environmental impacts, social and economic effects are relevant in determining the significance of a physical change to the conditions constituting the environment (State CEQA Guidelines Section 15064, subd. (e)). Here, the County of Kern’s erroneous view of CEQA’s principles addressing social and economic effects tainted its analysis of (1) the significance of lowering groundwater levels in wells and (2) appropriate mitigation for reducing the significance of the project’s contribution to that cumulative impact.

The Court also concluded in the unpublished portion of its opinion that the appellants had not carried their burden of establishing prejudicial error involving (1) the air quality mitigation measures addressing emissions of particulate matter, (2) the analysis of impacts on the Temblor legless lizard, or (3) the absence of Spanish-language translations of certain notices and portions of the SREIR.

The Court therefore reversed the judgment of the lower court and remanded the case for further proceedings to correct the defects in the SREIR identified in the unpublished portion of its opinion.