Filed 3/7/24

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

V LIONS FARMING, LLC, et al.,

Plaintiffs and Appellants,

v.

COUNTY OF KERN et al.,

Defendants and Respondents;

CALIFORNIA INDEPENDENT

PETROLEUM ASSOCIATION et al.,

Real Parties in Interest and Respondents.

F084763, F085102, F085220

(Super. Ct. Nos. BCV-15-101645, 

BCV-15-101666, BCV-15-101679, 

BCV-21-100533, BCV-21-100536)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Gregory A. 

Pulskamp, Judge.

Shute, Mihaly & Weinberger, Rachel B. Hooper, Susannah T. French, Kevin P. 

Bundy, Tori B. Gibbons, and Daniel P. Selmi for Plaintiff and Appellant V Lions 

Farming. 

Earthjustice, Colin C. O’Brien and Gregory D. Muren for Plaintiffs and Appellants 

Natural Resources Defense Council and Sierra Club.

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of the Facts, Proceedings, and parts I., III., 

IV., V., VI., VII., and V.III. of the Discussion.
2.

Center on Race, Poverty & The Environment, Caroline Farrell and Daniel I. Ress 

for Plaintiffs and Appellants Committee for a Better Arvin, Committee for a Better 

Shafter, and Comité Progreso de Lamont. 

Natural Resources Defense Council and Ann Alexander for Plaintiff and Appellant 

Natural Resources Defense Council.

Center for Biological Diversity and Hollin K. Kretzmann for Plaintiff and 

Appellant Center for Biological Diversity.

Margo A. Raison, County Counsel, Andrew C. Thomson, Deputy County 

Counsel; Holland & Knight, Jennifer L. Hernandez, Bradley B. Brownlow, Marne S. 

Sussman, Daniel R. Golub and Emily M. Lieban for Defendants and Respondents.

Pillsbury Winthrop Shaw Pittman, Blaine I. Green, Mark E. Elliott, and Eric 

Moorman for Real Party in Interest and Respondent Western States Petroleum 

Association.

Manatt, Phelps & Phillips, Craig A. Moyer, Benjamin G. Shatz and Sigrid R. 

Waggner for Real Party in Interest and Respondent California Independent Petroleum 

Association.

Environmental Law Clinic and Deborah A. Sivas for California Council of Land 

Trusts as Amici Curiae on behalf of Appellants. 

Environmental Law Clinic, Deborah A. Sivas and Rica Garcia for David J.X. 

González, Ph.D., Rachel Morello-Frosch, Ph.D., Jill Johnston, Ph.D., Mary Willis, Ph.D., 

Jonathan Buonocore, Ph.D., Joan A. Casey, Ph.D., and Lisa Mckenzie, Ph.D. as Amici 

Curiae on behalf of Appellants.

Frank G. Wells Environmental Law Clinic, Andria So, Cara Horowitz and Gabriel 

F. Greif for H. Bradley Shaffer as Amici Curiae on behalf of Appellants. 

-ooOoo-
3.

This is the second appeal addressing whether the County of Kern1 complied with 

the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et 

seq.)2in approving an ordinance streamlining the permitting process for new oil and gas 

wells. (King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814 

(King & Gardiner).) In the first appeal, we determined the environmental impact report 

(EIR) was defective and ordered the issuance of a writ of mandate directing the County to 

correct those defects before reapproving the ordinance. (Id. at p. 901.) The County 

prepared a revised supplemental recirculated environmental impact report (SREIR) and 

an addendum, certified the completion of the SREIR, and adopted a slightly modified 

ordinance. After the County 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, we consider whether an agricultural 

conservation easement (ACE) partially mitigates a conversion of agricultural land caused 

by the project. In King & Gardiner, supra, 45 Cal.App.5th 814, we decided a narrow 

aspect of the efficacy of ACE’s as mitigation by concluding ACE’s were not effective at 

reducing the project’s conversion of agricultural land to a less than significant level for 

purposes of CEQA. Here, we address the broader issue of whether ACE’s qualify as 

compensatory mitigation for purposes of California Code of Regulations, title 14, section 

15370, subdivision (e) (hereafter “Guidelines”),

3 which defines mitigation to include 

“[c]ompensating for the impact by ... providing substitute resources.” (Guidelines, 

§ 15370, subd. (e).) To promote CEQA’s purpose of long term protection of the 

environment, we join the First District in interpreting the phrase “providing substitute

1

In this opinion, “County” refers to the governmental entity and “Kern County” 

refers to the geographical area. 

2 All unlabeled statutory references are to the Public Resources Code. 

3 “Guidelines” hereafter refers to the regulations that implement CEQA and are 

codified in California Code of Regulations, title 14, section 15000 et seq. 
4.

resources” to encompass preserving existing agricultural land. (Masonite Corp. v. 

County of Mendocino (2013) 218 Cal.App.4th 230, 238 (Masonite).) Thus, ACE’s 

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. (Ibid.; see Black Warrior Riverkeeper, 

Inc. v. U.S. Army Corps of Engineers (11th Cir. 2016) 833 F.3d 1274, 1281 [under 

federal law, one of four methods of compensatory mitigation is the preservation of an 

existing aquatic site]; 40 C.F.R. § 230.92 [definitions of compensatory mitigation and 

preservation].)

In the unpublished part of this opinion, we address 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. We conclude that discussion is inadequate for 

purposes of CEQA because it lacks 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. 

We also address whether the County 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. (Guidelines, § 15064, 

subd. (e).) Here, the County’s erroneous view of CEQA’s principles addressing social 

and economic effects tainted its analysis of (1) the significance of lowering groundwater 
5.

levels in wells and (2) appropriate mitigation for reducing the significance of the 

project’s contribution to that cumulative impact. 

We also conclude appellants have 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 to the Temblor legless lizard, or (3) the 

absence of Spanish language translations of certain notices and portions of the SREIR. 

We therefore reverse the judgment and discharge order and remand for further 

proceedings.

THE PARTIES

Appellant V Lions Farming, LLC (Lions Farming) was named King and Gardiner 

Farms, LLC before it amended its articles of organization in February 2021. The other 

appellants are Natural Resources Defense Council, Sierra Club, Committee For A Better 

Arvin, Committee For A Better Shafter, Comite Progreso de Lamont, and Center for 

Biological Diversity (collectively, Sierra Club). 

The respondents are the County, the Board, and real parties in interest Western 

States Petroleum Association and California Independent Petroleum Association. They 

filed a joint respondents’ brief to Lions Farming’s opening brief, a joint respondent’s 

brief to Sierra Club’s opening brief, and are referred to collectively as the County.

FACTS*

The Project

The proposed project is an amendment of Title 19 of the Kern County Zoning 

Ordinance that focuses on Chapter 19.98, which contains procedures and standards 

applicable to the exploration, drilling and production of oil and gas. The amendment is 

designed to streamline the process for obtaining permits for local oil and gas activities, 

such as drilling new wells. 

* See footnote, ante, page 1.
6.

The previous amendment streamlining the procedures in the zoning ordinance is 

described in King & Gardiner, supra, 45 Cal.App.5th 814, and was effective from 

December 9, 2015 through March 25, 2020. While it was in effect, 5,861 permits subject 

to “Oil and Gas Conformity Review” were issued and 622 permits subject to “Minor 

Activity Review” were issued. 

The environmental review conducted for that amendment began in 2013 and 

ended with the Board’s November 9, 2015 approval of the project, which included 

adopting the amendment as set forth in ordinance No. G-8605 (Ordinance). (King & 

Gardiner, supra, 45 Cal.App.5th at pp. 834–835.) The Board also certified the 2015 EIR 

as complete and adopted (1) findings of fact to support its determinations relating to 

significant environmental impacts; (2) a statement of overriding considerations; and (3) a 

proposed mitigation measure monitoring program. (Id. at p. 835.)

Project Area, Subareas and Tiers

The project area contains 3,700 of Kern County’s 8,202 square miles. It includes 

most of the San Joaquin Valley Floor located in Kern County. The SREIR divides the 

project area into three subareas (western, central and eastern) and used those subareas in 

its analysis of many of the project’s environmental impacts. (See King & Gardiner, 

supra, 45 Cal.App.5th at pp. 832–833.)

In addition, a system of five tiers based on land use was adopted to classify the 

land within the project area and subareas. Tier 1 land is where oil and gas activities are

the primary land use and the existing well and activity densities preclude almost all other 

uses. Tier 2 land has agriculture as the primary land use. Tier 3 land is zoned for light, 

medium or heavy industrial, natural resource, recreation forestry, floodplain, and a few 

other uses. Tier 4 land is zoned for residential and commercial use and oil and gas 

activities require a conditional use permit. Tier 5 land has specific plan boundaries either 

adopted with a special planning district or which include specific provisions for oil and 

gas operations. 
7.

PROCEEDINGS*

Prior Appeal

In December 2015, Lions Farming and Sierra Club filed petitions for writ of 

mandate and complaints. (King & Gardiner, supra, 45 Cal.App.5th at pp. 835–836.) 

The superior court consolidated the matters based on the parties’ stipulation. (Id. at p. 

836.) The trial court issued its ruling on the CEQA issues in March 2018, finding a 

couple of CEQA violations and denying the others. (King & Gardiner, supra, at p. 836.) 

In April 2018, the court entered a final judgment. (Ibid.) Lions Farming and Sierra Club 

appealed. (Id. at p. 837.) In February 2020, we affirmed the judgment in part and 

reversed it in part. (Id. at p. 901.) We directed the superior court enter a modified 

judgment and issue a second peremptory writ of mandate directing the County to set 

aside its approval of the 2015 ordinance. (Ibid.) We also stated the writ should direct the 

County, in the event it decided to present the Ordinance for reapproval, to prepare a 

revised EIR “correcting the CEQA violations relating to (a) water supply impacts and 

mitigation measures, (b) PM2.5 emission impacts and mitigation measures, (c) 

agricultural land impacts and mitigation measures, and (d) the analysis of noise impacts.” 

(Ibid.) 

Proceedings on Remand

In April 2020, the County issued an “INITIAL STUDY/NOTICE OF 

PREPARATION” for a slightly revised ordinance. The notice stated that the SREIR, 

including the “Multi-Well Health Risk Assessment,”

4 would be recirculated for public 

* See footnote, ante, page 1.

4

In the previous appeal, we agreed with the County’s statement that the assessment 

titled “Cumulative Health Risk Assessment” was not a “cumulative impact” analysis as 

that term is used in CEQA because the assessment did not address the “cumulative 

impact from several projects” on human health risk in the project area. (Guidelines, 

§ 15355, subd. (b) [definition of “[c]umulative impacts”].) As a result, we referred to, 

and continue to refer to, the document as the “Multi-Well Health Risk Assessment.”
8.

review and comment and the County would prepare and publish responses to the 

comments. The proposed revised ordinance limited the number of new well permits to 

2,697 per year, instead of 3,746. (See King & Gardiner, supra, 45 Cal.App.5th at p. 832 

[2015 EIR forecast 2,697 new wells would be drilled each year].) In May 2020, the 

County held a virtual scoping meeting and solicited written and oral responses to the 

notice of preparation. At that meeting, Spanish translation services were provided. 

On June 12, 2020, the superior court (1) filed an order vacating portions of, and 

modifying its order dated March 12, 2018, and (2) issued the first modified judgment. 

On June 17, 2020, the court issued a second peremptory writ of mandate (Second Writ) 

directing the Board to set aside its certification of the EIR, its findings of fact and 

statement of overriding considerations, and its approval of the Ordinance. The Second 

Writ stated the County “must refrain from reviewing and approving permits pursuant to 

the Ordinance until and unless the Ordinance is readopted in compliance with CEQA and 

this writ.” It also identified the CEQA violations that needed to be corrected before the 

Ordinance, or a modified version, could be readopted. 

On August 3, 2020, the County released a draft SREIR. Two weeks later, the 

County’s department of planning and natural resources hosted a virtual public briefing 

workshop to provide an overview of the draft SREIR and an opportunity for public 

comments. At the end of August, the County filed an initial return to the Second Writ 

stating the County’s approvals relating to the Ordinance had been set aside and the 

issuance of permits had ceased as of the close of business on March 26, 2020. The initial 

return also described the actions relating to the draft SREIR. The 45-day review period 

for public comments on the draft SREIR ended on September 16, 2020. 

On October 30, 2020, the County released a revised draft SREIR. In January 

2021, the County released the final SREIR, which included responses to the public 

comments received. The comments and response relevant to the issues raised in this 
9.

appeal are described later in this opinion. In February 2021, the County release its 

proposed findings of fact and statement of overriding considerations. 

Approval of Revised Ordinance

On March 8, 2021, the Board held a special meeting and unanimously adopted 

Ordinance No. G-8992 (Revised Ordinance), which amended title 19 of the County’s

Ordinance Code. The Board’s resolution found that certain environmental impacts could 

not be mitigated, adopted a statement of overriding considerations, and found the final 

SREIR was complete and complied with CEQA. 

Challenges to Revised Ordinance

On March 10, 2021, Lions Farming and Sierra Club filed separate petitions for 

writ of mandate and complaints for injunctive relief challenging the County’s adoption of 

the Revised Ordinance, certification of the completion of the SREIR, and adoption of the 

statement of overriding considerations. They requested the issuance of a writ of mandate 

directing the County to vacate those decisions. 

On April 6, 2021, the County filed a final return to the Second Writ stating it had 

complied with the terms of the writ and adopted the Revised Ordinance in compliance 

with CEQA and the writ. Three days later, Lions Farming and Sierra Club filed a joint 

objection to the County’s final return to the Second Writ. The joint objection referred to 

the CEQA violations set forth in the writ petitions and complaints they filed a month 

earlier. 

The County Begins Issuing Permits

In August 2021, Lions Farming and Sierra Club filed a joint motion to enforce the 

Second Writ along with supporting papers. The joint motion asserted the County had 

begun to review and issue permits under the Revised Ordinance in direct violation of the 

Second Writ. The superior court heard the motion in September 2021, after the County 

filed an opposition and Lions Farming and Sierra Club filed a reply. 
10.

In October 2021, the superior court issued a written ruling granting in part the 

joint motion to enforce the Second Writ. The court determined it, rather than the County, 

should determine whether the Second Writ had been satisfied and directed the County to 

immediately suspend operation of the Revised Ordinance and cease the review and 

issuance of permits. The court did not retroactively invalidate the permits the County had 

issued before its order. 

Ruling on the Petitions for a Third Writ

On June 7, 2022, the superior court issued a ruling on the petitions of Lions 

Farming and Sierra Club had filed in March 2021 to challenge the final SREIR and the 

County’s approval of the Revised Ordinance. The court granted the petitions in part and 

denied them in part, finding four CEQA violations. The court determined (1) a 

mitigation measure of emission for particulate matter of 2.5 microns or less in diameter 

(PM2.5)5 was not enforceable; (2) the SREIR did not adequately analyze water supply 

impacts; (3) the elimination of a measure involving the removal of legacy equipment to 

mitigate the project’s conversion of agricultural land was not adequately addressed; and 

(4) the foregoing violations required the invalidation of the statement of overriding 

considerations. 

The superior court rejected other claims by determining (1) the County was not 

required to adopt ACE’s as a mitigation measure for the conversion of agricultural land 

because the 2020 opinion ruled ACE’s do not provide effective mitigation for such 

conversions; (2) the health risk assessment addressing the risk of cancer from drilling 

multiple wells near a sensitive receptor, such as a residence or school, was legally 

adequate; (3) information in a 2019 study of the Temblor legless lizard was not “new 

information” or “changed circumstances” for purposes of Guidelines section 15162 and, 

5

(40 C.F.R. § 50.7(a) [definition of PM2.5]; Cal. Code Regs., tit. 17, § 70100, subd. 

(j) [definition of fine suspended particulate matter].) 
11.

therefore, further analysis of impacts to that species was not required; and (4) res judicata 

barred Sierra Club’s challenge to the County’s decision not to translate notices and parts 

of the SREIR into Spanish. Each of these four determinations are among those 

challenged in this appeal. 

The June 7, 2022 trial court ruling did not identify the relief that would be granted 

for the CEQA violations. Instead, it directed the parties to meet and confer on the issue 

before a case management conference addressing remedies. The parties did not agree on 

the appropriate remedies, but did agree to a briefing schedule and a September 2022 

hearing date. 

Judgment and Third Writ

On October 4, 2022, the superior court issued a ruling on the remedies and relief 

for the CEQA violations previously identified. The court concluded it was not necessary 

to vacate the project approval or vacate the certification of the SREIR as complete. It 

also extended the full suspension of project activities that had been entered earlier. The 

same day, the court issued a “SECOND MODIFIED JUDGMENT” and a “THIRD 

PEREMPTORY WRIT OF MANDATE” (Third Writ). The second modified judgment 

stated the petitions for writ of mandate were granted in part and denied in part, set forth 

the terms to be included in the Third Writ, and stated a full suspension of project 

activities pending corrective action was sufficient to achieve compliance with CEQA and 

protect the environment. 

The Third Writ stated it replaced and superseded the Second Writ and directed the 

County to address the four discrete CEQA violations identified in the June 7, 2022 ruling 

and to file a return within 90 days setting forth how those violations had been addressed. 

About a week later, the County filed a return to the Third Writ and requested the 

writ be discharged. The County’s papers included a copy of the resolutions adopted by 

the Board on August 23, 2022. One resolution included the Board’s approval of the 

SREIR, a proposed addendum, revised and restated findings of fact, and a restated 
12.

statement of overriding considerations. Another resolution approved a program called 

the “VOLUNTARY DISADVANTAGED COMMUNITY DRINKING WATER 

GRANT FUND PILOT PROGRAM” to which permit applicants could make voluntary, 

nonrefundable contributions. That resolution stated that, before permitting had been 

halted, permit applicants had contributed over $180,000 for use by the County public 

health department in water challenged communities. 

On November 2, 2022, the superior court discharged the Third Writ in an order 

finding the County had complied with the writ in all respects. The order also lifted the 

suspension of the operation of the Revised Ordinance. 

Notices of Appeal

Lions Farming and Sierra Club filed separate notices of appeal from (1) the 

superior court’s June 7, 2022 ruling on the merits of their petitions for a third writ of 

mandate; (2) the October 4, 2022 second modified judgment and the related ruling on 

remedies and relief; and (3) the November 2, 2022 order discharging the Third Writ. In 

December 2022, after appellants’ motion to consolidate went unopposed, the three 

appeals were consolidated by this court under case No. F084763. 

Stay Granted

In December 2022, Lions Farming and Sierra Club jointly filed a petition for writ 

of supersedeas and a request for stay to prevent the continuing issuance of permits under 

the Revised Ordinance. On January 26, 2023, after respondents filed an opposition to the 

petition and appellants filed a reply, this court granted a stay of the superior court’s 

November 2, 2022 discharge order. As a result of the stay, the previously ordered 

suspension of the operation of the Revised Ordinance remained in full force and effect. 

Further Briefing

In June 2023, after appellants’ reply briefs were filed, H. Bradley Shaffer, Ph.D., 

applied for leave to file an amicus curiae brief in support of appellants on issues related to 

the Temblor legless lizard. In July 2023, David J.X., Gonzalez, Ph.D., four other 
13.

professors, and an environmental epidemiologist applied for leave to file an amicus 

curiae brief in support of appellants on issues involving cancer risk and the Multi-Well 

Health Risk Assessment. Also, that July, the California Council of Land Trust applied 

for leave to file an amicus curiae brief in support of appellants on issues related to 

agricultural conservation easements. 

This court granted the applications and authorized the County to file a 

consolidated answer to the three briefs. The order also directed the answer to address 

three questions relating to the project’s conversion of agricultural land and allowed the 

answer to “include an interpretation of the text of subdivision (e) of Guidelines section 

15370 (as amended in 2018) and an application of that interpretation to the facts of this 

case. (See 1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act 

(Cont.Ed.Bar 2d ed. 2023) § 13.72, pp. 13-100 to 13-102 [discussing relationship of King 

& Gardiner ... to 2018 version of Guidelines § 15370, subd. (e)].)”

In August 2023, this court granted Lions Farming’s application to file a reply to 

the consolidated answer. Subsequently, this court issued an order giving the County an 

opportunity to address specific issues relating to the interpretation of the discussion and 

conclusions relating to agricultural conservation easements in our 2020 opinion. (See 

King & Gardiner, supra, 45 Cal.App.5th at pp. 872–876, 878–879 [pts. VI.C.1. & 

VI.C.5.].) The County elected to file a supplemental brief. 

DISCUSSION

I. STANDARD OF REVIEW*

Section 21168.5 provides that in any action or proceeding addressing 

noncompliance with CEQA, the judicial “inquiry shall extend only to whether there was a 

prejudicial abuse of discretion. Abuse of discretion is established if the agency has not 

proceeded in a manner required by law or if the determination or decision is not 

* See footnote, ante, page 1.
14.

supported by substantial evidence.” (§ 21168.5.) Based on this provision and established 

case law, the parties agree that the abuse of discretion standard of judicial review applies

in this appeal. (See Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 512 [“standard 

of review in a CEQA case ... is abuse of discretion”].) When reviewing an agency’s 

decision, courts must follow the “principle that there is no presumption that error is 

prejudicial.” (§ 21005, subd. (b).)

Under CEQA, an abuse of an agency’s discretion usually occurs in one of two 

ways. (King & Gardiner, supra, 45 Cal.App.5th at p. 837.) First, the “agency could fail 

to proceed in the manner required by CEQA, thereby committing procedural (i.e., legal) 

error.” (Id. at pp. 837–838.) “Whether the public agency has employed the correct 

procedures—that is, followed applicable law—is subject to independent judicial review.” 

(Id. at p. 838.) Examples of whether an agency followed applicable procedures include 

whether the agency provided sufficient notice and opportunity to comment on a draft EIR 

and whether the agency omitted the required discussion of alternatives. (Sierra Club v. 

County of Fresno, supra, 6 Cal.5th at p. 512.) 

Second, an agency could abuse its discretion by making findings of fact that are 

not supported by sufficient evidence. (King & Gardiner, supra, 45 Cal.App.5th at p. 

838.) The agency’s findings of fact are subject to the deferential substantial evidence 

standard of review. (Ibid.) Substantial evidence includes “facts, reasonable assumptions 

predicated upon facts, and expert opinion supported by facts” and excludes argument, 

speculation, and unsubstantiated opinion. (§ 21082.2, subd. (c); Guidelines, § 15384.)

Sometimes, the inquiry into CEQA compliance does not fall neatly into one of 

these two categories and, instead, “[t]he inquiry presents a mixed question of law and 

fact.” (Sierra Club v. County of Fresno, supra, 6 Cal.5th at p. 516.) Generally, courts 

conduct an independent review of mixed questions while applying the substantial 

evidence standard to an agency’s underlying findings of fact. (Ibid.) However, when 

“factual questions predominate, a more deferential standard is warranted.” (Ibid.) For 
15.

example, an agency’s choice of methodology for analyzing a potentially significant 

environmental effect is subject to review under the substantial evidence standard. (Id. at 

pp. 514, 516.)

II. AGRICULTURAL CONSERVATION EASEMENTS

The parties dispute whether ACE’s qualify as a type of mitigation for the project’s 

conversion of agricultural land. CEQA defines “ ‘[a]gricultural land’ ” as “prime 

farmland, farmland of statewide importance, or unique farmland, as defined by the 

United States Department of Agriculture land inventory and monitoring criteria, as 

modified for California.” (§ 21060.1, subd. (a).) This opinion adopts this definition and 

uses the terms “agricultural land” and “farmland” interchangeably.

To summarize the discussion that follows, in King & Gardiner, supra, 45 

Cal.App.5th 814, we decided a narrow aspect of the efficacy of ACE’s as mitigation, 

addressing only whether ACE’s were “effective” at reducing the project’s conversion of 

agricultural land to a less than significant level for purposes of CEQA. We concluded 

ACE’s were not “effective” at accomplishing that specific task. 

Here, we address the broader question whether ACE’s are effective at providing 

any type of mitigation for purposes of CEQA. The Guidelines define “ ‘[m]itigation’ ” by 

giving five examples, including “[c]ompensating for the impact by ... providing 

substitute resources.” (Guidelines, § 15370, subd. (e).) We conclude this text is 

ambiguous and, therefore, resolve the ambiguity by adopting the interpretation that best 

effectuates CEQA’s purpose of the long term protection of the environment. The long 

term protection of the environment is best promoted by accepting, rather than rejecting, 

ACE’s as a type of compensatory mitigation. Consequently, we join the First District in 

concluding “ACEs compensate for the loss of farmland within the Guidelines definition 

of mitigation” by “preserving substitute resources,” even though ACE’s do not ensure the 

project causes no net loss of farmland. (Masonite, supra, 218 Cal.App.4th at p. 238.) 
16.

A. Background

1. Conservation Easements

The term “conservation easement” is statutorily defined as a limitation in the form 

of an easement, restriction, covenant, or condition in an instrument executed by or on 

behalf of the landowner; it is binding on successive owners; and its purpose is “to retain 

land predominantly in its natural, scenic, historical, agricultural, forested, or open-space 

condition.” (Civ. Code, § 815.1.) A conservation easement “shall be perpetual in 

duration,” “shall constitute an interest in real property,” and its characteristics shall be 

those specified in the written instrument. (Civ. Code, § 815.2, subds. (b), (c), (d).) A 

conservation easement may be acquired and held by certain nonprofit organizations, state 

or local government entities including a county or city, and certain Native American 

tribes. (Civ. Code, § 815.3.) Other aspects of conservation easements, including 

recordation and enforcement, are addressed in Civil Code sections 815.4 through 815.10.

The more specific term “agricultural conservation easement” is defined as “an 

interest in land, less than fee simple, that represents the right to prevent the development 

or improvement of the land, as specified in Section 815.1 of the Civil Code, for any 

primary purpose other than agricultural production. The easement shall be granted for 

the California Farmland Conservancy Program by the owner of a fee simple interest in 

land to any of the organizations or entities specified in Section 815.3 of the Civil Code. 

It shall be granted in perpetuity as the equivalent of covenants running with the land.” 

(§ 10211; see § 10230.2 [California Farmland Conservancy Program].)

2. Interpreting Appellate Opinions

Our 2020 opinion discussed ACE’s as a mitigation measure for the project’s 

conversion of agricultural land to another use. The parties disagree on how to interpret 

that discussion and the resulting conclusions. (See King & Gardiner, supra, 45 

Cal.App.5th at pp. 872–876 [pt. VI.C.1.].) Accordingly, we set forth the principles that 

govern the interpretation of appellate opinions. 
17.

Other CEQA decisions have addressed a disagreement among the parties about the 

meaning or effect of an opinion published in an earlier appeal. (E.g., POET, LLC v. State 

Air Resources Bd. (2017) 12 Cal.App.5th 52, 63 (Poet II); Protect Our Water v. County 

of Merced (2005) 130 Cal.App.4th 488, 494 [issue of who was the prevailing party turned 

on the import of this court’s earlier opinion]; San Bernardino Valley Audubon Society v. 

Metropolitan Water Dist. (2001) 89 Cal.App.4th 1097, 1101–1102 [respondents’ narrow 

interpretation of prior opinion rejected].) In Poet II, we addressed how POET, LLC v. 

State Air Resources Bd. (2013) 218 Cal.App.4th 681 should be interpreted. (Poet II, 

supra, 12 Cal.App.5th at p. 63.) We concluded (1) the interpretation of the earlier 

opinion presented a question of law and (2) that question was subject to our independent 

review. (Ibid.; see Ayyad v. Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851, 859 

[interpretation of an appellate opinion is a legal issue subject to de novo review].) 

In accordance with Poet II, we again conclude the interpretation of our prior 

opinion presents a question of law subject to our independent review. We make this 

opinion more explicit than Poet II or San Bernardino Valley Audubon Society v. 

Metropolitan Water Dist., supra, 89 Cal.App.4th 1097, by noting that the “interpretation 

of an appellate opinion is governed by the rules of construction that apply to any other 

writing.” (16 Cal.Jur.3d (2020) Courts, § 331, p. 925.) Under those rules, an opinion 

must receive an objectively reasonable interpretation—that is, (1) it must be read as 

whole, (2) its language must be viewed in light of the facts and the issues before the 

court, and (3) each statement must be considered in its proper context. (Ibid.; Kirk v. 

First American Title Ins. Co. (2010) 183 Cal.App.4th 776, 797.) The scope of the 

“[l]anguage used in any opinion is of course to be understood in the light of the facts and 

the issue then before the court, and an opinion is not authority for a proposition not 

therein considered.” (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2; Geiser v. Kuhns 

(2022) 13 Cal.5th 1238, 1252 [cases are not authority for propositions not considered]; 
18.

see 9 Witkin, Cal. Procedure (6th ed. 2021) Appeal, § 530, pp. 563–564 [ratio decidendi

and dicta].)

The first step in analyzing the meaning of a writing is determining whether the 

language is ambiguous. (In re Estate of Russell (1968) 69 Cal.2d 200, 208–209 [initial 

determination is whether the terms of any written instrument are free from ambiguity]; 

see Joseph v. City of Atwater (2022) 74 Cal.App.5th 974, 982 [ambiguity is the threshold 

question in contract interpretation]; Gutierrez v. Carmax Auto Superstores California

(2018) 19 Cal.App.5th 1234, 1249 [whether a statute’s language is ambiguous is the first 

question of statutory interpretation].) “Ambiguous” means susceptible to more than one 

reasonable interpretation. (Gutierrez, supra, at p. 1249; Estate of Newmark (1977) 67 

Cal.App.3d 350, 355 [“ambiguity exists in a written instrument when its language is 

properly susceptible to multiple constructions”].)

B. The 2020 Opinion

1. Effective Mitigation 

In King & Gardiner, supra, 45 Cal.App.5th 814, Lions Farming raised several 

issues related to the project’s conversion of agricultural land. (Id. at p. 872 [Part VI.B., 

Contentions of the Parties].) The issue relevant to this appeal arose from Lions 

Farming’s contention that the mitigation measure for the conversion of agricultural land, 

mitigation measure (MM) 4.2-1, “does not support the Board’s finding that conversions 

of agricultural land would be reduced to a less than significant level.” (Ibid.) To resolve 

this alleged CEQA violation, we evaluated “the effectiveness of each” of the four 

mitigation options contained in MM 4.2-1. (King & Gardiner, supra, at p. 872.) 

The first mitigation option, MM 4.2-1.a, authorized the use of ACE’s. (King & 

Gardiner, supra, 45 Cal.App.5th at p. 872.) We analyzed the characteristic of ACE’s and 

concluded “that MM 4.2-1.a does not provide effective mitigation for the conversion of 

agricultural land.” (Id. at p. 876, italics added.) How to interpret this conclusion is at the 
19.

heart of the parties’ dispute over ACE’s. The discussion immediately preceding the 

conclusion stated:

“Entering into a binding agricultural conservation easement does not create 

new agricultural land to replace the agricultural land being converted to 

other uses. Instead, an agricultural conservation easement merely prevents 

the future conversion of the agricultural land subject to the easement. 

Because the easement does not offset the loss of agricultural land (in whole 

or in part), the easement does not reduce a project’s impact on agricultural 

land. The absence of any offset means a project’s significant impact on 

agricultural land would remain significant after the implementation of the 

agricultural conservation easement. Restating this conclusion using the 

data from this case, the implementation of agricultural conservation 

easements for the 2[98] acres of agricultural land estimated to be converted 

each year would not change the net effect of the annual conversions. At the 

end of each year, there would be 2[98] fewer acres of agricultural land in

Kern County. Accordingly, under the thresholds of significance listed in 

the EIR, this yearly impact would qualify as a significant environmental 

effect.” (King & Gardiner, supra, at pp. 875–876.) 

Later, the opinion described the resulting noncompliance with CEQA by stating 

the Board’s finding that the project’s estimated conversion of agricultural land was an 

impact that “ ‘would be less than significant with mitigation’ ” was a “finding as to the 

effectiveness of MM 4.2-1 [that was] not supported by substantial evidence and [wa]s 

based on a legally incorrect view of the operation of [ACE’s].” (King & Gardiner, supra, 

45 Cal.App.5th at p. 878.) Our ultimate conclusion was that “the EIR and the Board’s 

finding as to the mitigation of a significant impact on agricultural land d[id] not comply 

with CEQA.” (Id. at p. 879.)

2. Proposed Interpretations

The County’s interpretation of the 2020 opinion is set forth in the final SREIR’s 

responses to comments. Response No. 0004-2 explained: 

“The SREIR ... has an expanded discussion explaining that, based on the 

court’s analysis, it is not possible to reduce a projects impact on agricultural 

land by requiring a conservation easement because such easements do not 

offset the loss of agricultural land in whole or in part. Since an agricultural 
20.

conservation easement does not create new agricultural land to replace the 

agricultural land being converted to other uses at the end of each year there 

would be a net loss of agricultural land equal to the amount converted by 

the Project and the Project’s impact on agricultural land would remain 

significant despite the implementation of the easement. Accordingly, under 

the threshold of significance in the SREIR, conservation easements do not 

provide an effective means of even partial mitigation for agricultural 

conversion impacts.” 

Thus, the County argues it cannot legally rely on ACE’s to mitigate the farmland 

conversion impact. In contrast, Lions Farming asserts the 2020 opinion did not conclude 

ACE’s are categorically ineffective at providing any type of CEQA mitigation, but 

determined that ACE’s alone would not be effective at reducing the project-specific 

impacts to a less than significant level because ACE’s could not ensure no net loss of 

farmland. To determine which interpretation is correct, we apply the rules for construing 

an opinion set forth in part II.A.2., ante. 

C. Construing the Opinion

1. Threshold Question of Ambiguity

Pursuant to the general rules of construction that apply to writings, we begin by 

considering whether the conclusion “that MM 4.2-1.a does not provide effective 

mitigation for the conversion of agricultural land” (King & Gardiner, supra, 45 

Cal.App.5th at p. 876, italics added) and other statements about the effectiveness of 

ACE’s as mitigation are ambiguous. We conclude the statements are ambiguous because, 

taken alone, they can be interpreted broadly as proposed by the County.

The conclusion that ambiguities exist also is supported by a CEQA practice 

guide’s discussion of Masonite, supra, 218 Cal.App.4th 230, King & Gardiner, supra, 45 

Cal.App.5th 814, and the 2018 amendment to Guidelines section 15370, subdivision (e) 

along with the practice guide’s statement that “it is unclear whether it would be 

appropriate for a lead agency to find that requiring an off-site conservation easement as 

mitigation is sufficient to ‘avoid,’ ‘minimize,’ or ‘substantially lessen’ the impact to 
21.

farmland that results when it is developed.” (1 Kostka & Zischke, Practice Under the 

Cal. Environmental Quality Act, supra, § 13.72, pp. 13-100 to 13-101.)

2. Narrow Scope of the 2020 Opinion

The ambiguity in the 2020 opinion is resolved by applying the rules of 

construction described earlier. Although those rules do not inquire into actual intent, we 

confirm that the result produced by applying those rules reflects the actual intent of the 

2020 opinion because we did not intend to adopt any principle of law about mitigation 

that was not needed to decide the particular issue presented. (Ginns v. Savage, supra, 61 

Cal.2d at p. 524, fn. 2 [opinions are “understood in the light of the facts and the issue then 

before the court”].) The particular issue presented was whether the mitigation measure 

authorizing the use of ACE’s supported the Board’s finding that the project’s estimated 

annual conversion of 298 acres of farmland “would be reduced to a less than significant 

level.” (King & Gardiner, supra, 45 Cal.App.5th at p. 872.) 

The scope of this issue impliedly limited what the opinion meant by “effective 

mitigation.” Specifically, to be regarded as “effective mitigation” in the context 

presented, ACE’s would need to reduce or offset the project-specific impact “to a less 

than significant level.” (King & Gardiner, supra, 45 Cal.App.5th at p. 872.)6 To explain 

the limitation resulting from the issue presented, we turn to the definitions of “projectspecific impact” and “threshold of significance.” 

6 A footnote in King & Gardiner stated our view that the determinations in 

Masonite did not contradict our conclusion that the absence of an offset by the ACE’s 

“means a project’s significant impact on agricultural land would remain significant after 

the implementation of the [ACE].” (King & Gardiner, supra, at p. 875, fn. 32 and 

accompanying text.) The footnote explained the lack of contradiction by stating in part: 

“In Masonite, the court did not consider the net effect of implementing an agricultural 

conservation easement and whether a significant impact could be reduced to a less than 

significant level by such an easement.” (Ibid., italics added.) That explanation would 

have been clearer if the italicized “and” had been replaced with the phrase “in the context 

of deciding the narrow question of.” 
22.

“ ‘Project-specific effect’ means all the direct or indirect environmental effects of 

a project other than cumulative effects and growth-inducing effects.” (Guidelines, 

§ 15191, subd. (j) [same]; see Guidelines, § 15358, subd. (a) [direct and indirect effects 

defined].) In this case, the project-specific impact is the estimated conversion of 298 

acres of agricultural land per year, which is the amount predicted in both the EIR and 

SREIR.7 (See King & Gardiner, supra, 45 Cal.App.5th at p. 870.) They also predicted a 

maximum (i.e., worst-case) conversion of 7,450 acres of farmland between 2015 and 

2040, which was less than 1 percent of the farmland in Tier 2 of the project area. (Id. at 

p. 871.) 

Next, we compare the estimated conversion of agricultural land to the applicable 

threshold of significance. “A threshold of significance is an identifiable quantitative, 

qualitative or performance level of a particular environmental effect, non-compliance 

with which means the effect will normally be determined to be significant by the agency 

and compliance with which means the effect normally will be determined to be less than 

significant.” (Guidelines, § 15064.7, subd. (a).) The EIR and the SREIR described the 

applicable threshold of significance by stating the conversion of any agricultural land 

would be considered a significant impact. (See King & Gardiner, supra, 45 Cal.App.5th 

at p. 871.) Applying this threshold to the project-specific effect, both the EIR and the 

SREIR concluded the conversion of agricultural land was considered significant. (Ibid.) 

Consequently, under the threshold of significance adopted by the County, ACE’s 

would be “effective” for purposes of the issue addressed in the 2020 opinion only if they 

reduced or offset the conversion of farmland to zero acres. Stated another way, the 

ACE’s would have had to achieve no net loss of agricultural land to render the 

conversion insignificant. As a result, the 2020 opinion’s statement that ACE’s were not 

7 The SREIR continued to use the EIR’s estimate despite a March 2021 staff report

on the Revised Ordinance stating: “The actual[] permitting from 2015, to March 2020, 

resulted [in] impacts to 54.18 acres with an average of 12 acres per year.” 
23.

“effective mitigation” and did not support the Board’s finding, meant ACE’s would not 

reduce or offset the conversion of farmland to zero and, therefore, the project’s 

conversion of agricultural land would remain significant after implementation of ACE’s. 

In other words, “[a]t the end of each year, there would be 2[98] fewer acres of 

agricultural land in Kern County. Accordingly, under the thresholds of significance listed 

in the EIR, this yearly impact would qualify as a significant environmental effect.” (King 

& Gardiner, supra, 45 Cal.App.5th at p. 876.) 

Therefore, based on the issue actually presented and decided in King & Gardiner, 

supra, 45 Cal.App.5th 814, we conclude the County construed the opinion too broadly 

and mistakenly concluded the opinion established the principle that ACE’s “do not 

provide an effective means of even partial mitigation for agricultural conversion 

impacts.” Because the opinion did not decide, one way or the other, whether ACE’s 

provide some form of mitigation despite their inability to reduce or offset the project’s 

conversion of farmland to zero acres, the County’s misreading of the opinion, by itself, 

does not establish the County violated CEQA. The County may have properly 

interpreted CEQA and the Guidelines when it determined that ACE’s provide no 

mitigation of any type for the conversion of agricultural land. Accordingly, we now turn 

to whether ACE’s qualify as a type of mitigation despite their inability to achieve no net 

loss of farmland. This inquiry is focused on whether ACE’s provide compensatory

mitigation. 

D. ACE’s and Compensatory Mitigation

1. Background

CEQA and the federal legislation on which it was modeled, the National 

Environmental Policy Act of 1969 (NEPA; 42 U.S.C. section 4321, et seq.), do not 

themselves define “mitigation.” Instead, the term is defined in regulations. (Guidelines, 

§ 15370; 40 C.F.R. § 1508.1(s) (2023); 28 C.F.R. § 91.51(c) (2023).) 
24.

The federal definition of mitigation was adopted in 1978 as part of the regulations 

implementing the procedural provisions of NEPA. (43 Fed.Reg. 55978, 56005 (Nov. 29, 

1978).) “ ‘Mitigation’ includes: [¶] (a) Avoiding the impact altogether by not taking a 

certain action or parts of an action. [¶] (b) Minimizing impacts by limiting the degree or 

magnitude of the action and its implementation. [¶] (c) Rectifying the impact by 

repairing, rehabilitating, or restoring the affected environment. [¶] (d) Reducing or 

eliminating the impact over time by preservation and maintenance operations during the 

life of the action. [¶] (e) Compensating for the impact by replacing or providing 

substitute resources or environments.” (Ibid.; see 40 C.F.R. § 1508.20 (1979).) This 

language remains unchanged in the five examples of mitigation contained in the current 

NEPA regulation. (See 40 C.F.R. § 1508.1(s)(1)-(5) (2023).) 

In 1983, the Guidelines were amended to add a definition of mitigation that 

“originally mirrored the definition contained in the federal NEPA regulations.” (Natural 

Resources Agency, Final Statement of Reasons for Regulatory Action Amendments to 

the State CEQA Guidelines (Nov. 2018) p. 64 (FSOR 2018); see Register 83, No. 29-B 

(July 16, 1983) p. 322.52.) The only difference in language was that subdivision (c) of 

Guidelines section 15370 referred to the “impacted environment” instead of the “affected 

environment.” In 2018, subdivision (e) of Guidelines section 15370 was amended to 

include a clause referring to conservation easements: 

“Compensating for the impact by replacing or providing substitute 

resources or environments, including through permanent protection of such 

resources in the form of conservation easements.” (Guidelines, § 15370, 

subd. (e), italics added; see FSOR 2018, supra, at pp. 92–93.)

The fundamental dispute in this appeal about the use of ACE’s as mitigation is 

whether the preservation of existing agricultural land qualifies as compensatory 

mitigation by “providing substitute resources.” (Guidelines, § 15370, subd. (e).) The 

dispute about whether preservation should constitute compensatory mitigation is not new. 

Nearly a decade ago, commentators observed that “one of the central concerns with 
25.

preservation as mitigation is that it does not prevent net loss of habitat.” (Morris & 

Owley, Mitigating the Impacts of the Renewable Energy Gold Rush (Winter 2014) 15 

Minn. J.L. Sci & Tech. 293, 369.) The commentators argued preservation as mitigation 

is unsatisfying because preservation “generally protects off-site habitat without truly 

offsetting project impacts.” (Ibid.) The County has made the same argument here, which 

interprets the term “mitigation” narrowly to require a replacement or offset that can be 

quantified and compared to the quantity of farmland converted. 

As context for our textual analysis of Guidelines section 15370, we consider how 

federal agencies have dealt with preservation as a form of compensatory mitigation. A 

review of their approach is useful because CEQA was modeled on NEPA and California 

courts treat judicial and administrative interpretations of the federal act as persuasive 

authority in interpreting CEQA. (See Citizens of Goleta Valley v. Board of Supervisors

(1990) 52 Cal.3d 553, 565, fn. 4.) Also, we have located no published California 

decision discussing the federal view of compensatory mitigation and the preservation of 

existing resources.

2. Federal Approach to Compensatory Mitigation

Initially, we note definition of mitigation in the NEPA regulations is not applied 

only to activities exclusively within the jurisdiction of the United States Environmental 

Protection Agency (EPA). The NEPA regulation defining mitigation and other terms 

states: “Federal agencies shall use these terms uniformly throughout the Federal 

Government.” (40 C.F.R. § 1508.1.) Consequently, other federal regulations also state 

that mitigation includes “compensating for the impact by replacing or providing 

substitute resources or environments.” (1 C.F.R. § 601.3 [National Capital Planning 

Commission definition of mitigation]; 10 C.F.R. § 960.2 [Department of Energy 

definition of mitigation]; 32 C.F.R. § 651.15(a)(5) [Department of the Army definition of 

mitigation]; 43 C.F.R. § 3809.5 [Bureau of Land Management definition of mitigation].)
26.

Although the NEPA regulations do not contain a definition of “compensatory 

mitigation,” other regulations developed jointly by the EPA and other federal agencies 

define the term. For example, the EPA and U.S. Army Corps of Engineers (Corps) have 

adopted regulations containing standards and criteria for the use of compensatory 

mitigation in connection with the Corps’ issuance of permits under section 404 of the 

Clean Water Act (33 U.S.C. § 1344). (40 C.F.R. § 230.91(a)(1); see generally, 40 C.F.R. 

§ 230 [Subpart J — Compensatory Mitigation for Losses of Aquatic Resources].) Those 

regulations state: 

“Compensatory mitigation means the restoration (re-establishment or 

rehabilitation), establishment (creation), enhancement, and/or in certain 

circumstances preservation of aquatic resources for the purposes of 

offsetting unavoidable adverse impacts which remain after all appropriate 

and practicable avoidance and minimization has been achieved. [¶] ... [¶]

“Preservation means the removal of a threat to, or preventing the decline 

of, aquatic resources by an action in or near those aquatic resources. This 

term includes activities commonly associated with the protection and 

maintenance of aquatic resources through the implementation of 

appropriate legal and physical mechanisms. Preservation does not result in 

a gain of aquatic resource area or functions.” (40 C.F.R. § 230.92, italics 

added.)

In adopting this regulation, the EPA and Corps provided the following summary: 

“Compensatory mitigation can be carried out through four methods: the restoration of a 

previously-existing wetland or other aquatic site, the enhancement of an existing aquatic

site’s functions, the establishment (i.e., creation) of a new aquatic site, or the preservation 

of an existing aquatic site.” (Compensatory Mitigation for Losses of Aquatic Resources, 

73 Fed.Reg. 19594–01, 19594 (April 10, 2008); see Black Warrior Riverkeeper, Inc. v. 

U.S. Army Corps of Engineers, supra, 833 F.3d at p. 1281.) Of interest for this appeal are 

the comments presented to the agencies that, like the County’s argument, asserted 

preservation alone was not a form of compensatory mitigation because it failed to 
27.

promote no net loss of wetlands. In response, the agencies stated that, under part 

203.93(h)(2) of title 40 of the Code of Federal Regulations: 

“[P]reservation will be provided [only] in conjunction with aquatic 

resource restoration, establishment, and/or enhancement activities, unless 

the district engineer waives this requirement in a situation where 

preservation has been identified as a high priority using a watershed 

approach. If the district engineer makes such a waiver, a higher 

compensation ratio shall be required. For each mitigation bank and in-lieu 

fee project involving preservation, the district engineer, in consultation with 

the [Interagency Review Team], will determine the number of credits that 

will result from that preservation activity.” (Compensatory Mitigation for 

Losses of Aquatic Resources, supra, 73 Fed.Reg. at p. 19635; see 33 C.F.R. 

§§ 332.2 [definition of compensatory mitigation], 332.3(a)(2) 

[compensatory mitigation may be performed by using preservation in 

certain circumstances, with restoration generally being the first option], 

332.3(h)(1) [criteria for using preservation as compensatory mitigation].)

Similar restrictions on the use of preservation appear in other federal regulations. 

“Compensatory mitigation means the restoration (reestablishment or rehabilitation), 

establishment (creation), enhancement, and/or, in certain circumstances, preservation of 

aquatic resources for the purposes of offsetting unavoidable adverse impacts that remain 

after all appropriate and practicable avoidance and minimization have been achieved.” 

(24 C.F.R. § 55.2(a)(2), italics added; see 24 C.F.R. § 55.20(e)(2) [compensatory 

mitigation includes the use of preservation easements or protective covenants; use of 

compensatory mitigation is not a substitute for avoiding or minimizing impacts to the 

maximum extent practicable].) A regulation adopted by the Federal Highway 

Administration states in part: “Compensatory mitigation means restoration, 

enhancement, creation, and under exceptional circumstances, preservation, of wetlands, 

wetland buffer areas, and other natural habitats.” (23 C.F.R. § 777.2, italics added; cf. 

Northwest Bypass Group v. U.S. Army Corps of Engineers (D.N.H. 2008) 552 F.Supp.2d 

97, 120 [guidance letter issued by the Corps states “ ‘[p]reservation does not result in a 

gain of wetland acres and will be used only in exceptional circumstances’ ”].)
28.

In 1996, the United States Fish & Wildlife Service and the National Marine 

Fisheries Service issued the Habitat Conservation Plan Handbook, which states: 

“Potential types of habitat mitigation include, but are not limited to: (1) acquisition of 

existing habitat; (2) protection of existing habitat through conservation easements or 

other legal instruments; (3) enhancement or restoration of disturbed or former habitat; (4) 

prescriptive management of habitat to achieve specific biological characteristics; and (5) 

creation of new habitats.” (Id. at pp. 3-21 to 3-22, italics added.) The first two mitigation 

options do not lead to increased habitat but protect habitat that already exists. (Owley, 

The Increasing Privatization of Environmental Permitting (2013) 46 Akron L.Rev. 1091, 

1101.) Professor Owley also asserted that preservation of habitat was the most common 

mitigation technique. (Ibid.)

To summarize, federal agencies treat compensatory mitigation as including 

preservation of existing habitat, but usually restrict the use of preservation to exceptional 

circumstances. Despite this restriction, preservation is a common type of mitigation.

3. Principles for Interpreting the Guidelines

Before analyzing the text of Guidelines section 15370, subdivision (e), we 

describe the principles governing its interpretation. When interpreting the Guidelines, 

courts usually apply the same rules that govern the interpretation of statutes. (Los 

Angeles Dept. of Water & Power v. County of Inyo (2021) 67 Cal.App.5th 1018, 1037 

[the existence of ambiguity is the threshold inquiry when interpreting a regulation] 

(County of Inyo).) Under those rules, the interpretation of Guidelines section 15370 

presents a question of law that is subject to our independent review. (See BullsEye 

Telecom, Inc. v. Public Utilities Com. (2021) 66 Cal.App.5th 301, 309 [questions of 

statutory interpretation are questions of law subject to independent review].) The 

threshold inquiry is whether the regulatory text is ambiguous. (County of Inyo, supra, at 

p. 1037.) If the text contains ambiguities, the next step is to resolve those ambiguities. 
29.

(Id. at p. 1039.) Generally, a court’s primary goal when construing an ambiguous 

Guideline is to adopt the interpretation that best effectuates the legislative and regulatory 

intent or purpose. (Ibid.) 

4. The Ambiguities

Guidelines section 15370, subdivision (e) states that mitigation includes: 

“Compensating for the impact by replacing or providing substitute resources or 

environments, including through permanent protection of such resources in the form of 

conservation easements.” Initially, we consider whether the clause “including through 

permanent protection of such resources in the form of conservation easements” 

unambiguously requires ACE’s to be treated as a type of compensatory mitigation in all 

situations where a project converts agricultural land to other uses. (Guidelines, § 15370, 

subd. (e).) 

The County argues the clause does not, emphasizing the term “such resources.” 

The County asserts that term refers back to earlier language in the subdivision and, to fall 

within the earlier language, the ACE “must result in ‘substitute resources or 

environments’ being ‘replac[ed] or provid[ed.]’ ” We accept the County’s construction 

of the term “such resources.” As a result, the clause “including through permanent 

protection of such resources in the form of conservation easements” (Guidelines, 

§ 15370, subd. (e)) does not unambiguously require ACE’s to be accepted as 

compensatory mitigation in all situations where agricultural land is converted. Instead, to 

determine whether an ACE is mitigation that “[c]ompensat[es]” for the conversion of 

agricultural land depends on whether the ACE “replac[es] or provid[es] substitute 

resources or environments.” (Guidelines, § 15370, subd. (e).) Consequently, we next 

consider whether “replacing or providing substitute resources or environments” is 

ambiguous. (Ibid.) We address the two verbs—replacing and providing—separately. 
30.

The County argues ACE’s do not replace the converted farmland and cites the 

2020 opinion’s statement that “[e]ntering into a binding agricultural conservation

easement does not create new agricultural land to replace the agricultural land being 

converted to other uses.” (King & Gardiner, supra, 45 Cal.App.5th at p. 875, italics 

added; see Masonite, supra, 218 Cal.App.4th at p. 238 [“an ACE does not replace the

onsite resources”].) Accordingly, we conclude (1) the verb “replacing” is not ambiguous 

in the context of this case and (2) the use of ACE’s would not compensate for the 

conversion of 298 acres of agricultural land per year by “replacing” the converted acres. 

(Guidelines, § 15370, subd. (e).)

Next, we consider whether the verb “providing” and the term “substitute resources 

or environments” contain ambiguities. (Guidelines, § 15370, subd. (e).) The Guidelines 

do not define the verb “providing” or the term “substitute resources.” One dictionary 

definition of the verb “[p]rovide” is “[t]o make, procure, or furnish for future use, 

prepare. To supply, to afford, to contribute.” (Black’s Law Dict. (6th ed. 1990) p. 1224.) 

Another dictionary states that “provide” and “supply” are often interchangeable and the 

former “may suggest equipping, stocking, or giving in the interest of preparing with 

foresight.” (Webster’s Third New Internat. Dict. (1993) p. 1827.) 

The County’s briefing suggests the verb “providing” should be interpreted to mean 

“replacing.” We reject this suggestion because such an interpretation would make the 

term “providing” redundant and such interpretations are disfavored. (See Kern County 

Hospital Authority v. Dept. of Corrections & Rehabilitation (2023) 91 Cal.App.5th 1313, 

1326 [courts avoid an interpretation that renders regulatory language mere surplusage].) 

The County’s briefing also suggests that “providing” is not the equivalent of preserving 

or protecting in perpetuity. In our view, the verb “providing” could be reasonably 

construed narrowly to mean supplying something new, while excluding the preservation 

of something that already exists. Alternatively, “providing” could be reasonably 

construed more broadly to include preserving (i.e., protecting in perpetuity) because 
31.

preserving and protecting in perpetuity could be equated to “giving in the interest of 

preparing with foresight” (Webster’s Third New Internat. Dict., supra, p. 1827) against 

long term depletion of agricultural land. Based on the different ways the verb 

“providing” could be interpreted, we conclude it is ambiguous in the context of this case. 

ACE’s must “provid[e] substitute resources or environments” for the converted

agricultural land to qualify as compensatory mitigation. (Guidelines, § 15370, subd. (e).) 

The usual or ordinary meaning of the noun “substitute” is “that which stands in place of 

another; that which stands in lieu of something else” and the verb form means “[t]o put in 

the place of another person or thing; to exchange.” (Webster’s Third New Internat. Dict., 

supra, at p. 1429.) Taking these definitions into consideration, we conclude the term 

“substitute resources” is ambiguous. It could be interpreted narrowly to mean that, 

immediately after the substitute acreage has been provided, the amount of land suitable 

for agricultural use is the same—that is, there is no net loss of farmland. (See generally, 

Malloy, Symbolic Gestures or Our Saving Grace: The Relevance of Compensatory 

Mitigation for Florida’s Wetlands in the Climate Change Era (2011) 27 J. Land Use & 

Envtl. L. 103, 105 [no net loss policy adopted in 1989 by President Bush designed to 

ensure total acres of wetlands remained constant].) This interpretation of what 

constitutes “substitute resources” focuses on the immediate result. Alternatively, it could 

be interpreted broadly to refer to other land that will be available in the future to grow 

crops that could no longer be grown on the land being converted. Based on these 

different interpretations, we conclude that, in the context of this case, the term “substitute 

resources” is ambiguous. (Guidelines, § 15370, subd. (e).)

5. Resolving the Ambiguities

Having determined the phrase “providing substitute resources or environments” 

and the derivative term “such resources” (Guidelines, § 15370, subd. (e)), are ambiguous, 

the next step is to resolve the ambiguities. That step involves an independent review and 
32.

our adoption of the interpretation that best effectuates the purpose of CEQA. (See 

County of Inyo, supra, 67 Cal.App.5th at p. 1039.)

In 2018, the Natural Resources Agency explained the purpose of adding the phrase 

“including through permanent protection of such resources in the form of conservation 

easements” to subdivision (e) of section 15370 by stating:

“[We] revised Section 15370 of the CEQA Guidelines, however, to clarify 

in the CEQA Guidelines that permanent protection of off-site resources 

through conservation easements constitutes mitigation. The proposed 

changes incorporate the First District Court of Appeal holding in Masonite 

Corporation v. County of Mendocino (2013) 218 Cal.App.4th 230 wherein 

the court ruled that off-site agricultural conservation easements constitute a 

potential means to mitigate for direct, in addition to cumulative and 

indirect, impacts to farmland.” (FSOR 2018, supra, at p. 64.)

Based on the role Masonite played in the amendment of section 15370, 

subdivision (e), we next describe that decision. In Masonite, the First District reversed a 

judgment denying a petition for writ of mandate, and directed the issuance of a writ 

requiring the county to (1) set aside its certification of the EIR and approval of permits 

for a quarry project and (2) correct deficiencies in the EIR involving ACE’s as mitigation 

for the conversion of agricultural land. (Masonite, supra, 218 Cal.App.4th at p. 242.) 

The court rejected the respondents’ contention that ACE’s were legally infeasible and 

concluded “that ACEs may appropriately mitigate the direct loss of farmland when a 

project converts agricultural land to a nonagricultural use, even though an ACE does not 

replace the onsite resources.” (Masonite, supra, 218 Cal.App.4th at p. 238, italics 

added.) The court stated its conclusion was “reinforced by the CEQA Guidelines, case 

law on offsite mitigation for loss of biological resources, case law on ACEs, prevailing 

practice, and the public policy of this state.” (Ibid.) The court then explained:

“ACEs preserve land for agricultural use in perpetuity. (See 

Civ.Code, §§ 815.1, 815.2 [describing agricultural and other conservation 

easements]; Pub. Resources Code, § 10211 [defining ‘agricultural 

conservation easement’].) As the California Farm Bureau Federation 
33.

(CFBF) observes in an amicus curiae brief advocating for the conclusion 

we reach: ‘The permanent protection of existing resources off-site is 

effective mitigation for [a project’s direct, cumulative, or growth-inducing] 

impacts because it prevents the consumption of a resource to the point that 

it no longer exists.... If agricultural land is permanently protected off-site 

at, for example, a 1:1 replacement ratio, then at least half of the agricultural 

land in a region would remain after the region has developed its available 

open space.’ By thus preserving substitute resources, ACEs compensate for 

the loss of farmland within the Guidelines’ definition of mitigation. 

(Guidelines, § 15370, subd. (e) [mitigation includes ‘[c]ompensating for the 

impact by replacing or providing substitute resources or environments’].)” 

(Masonite, supra, 218 Cal.App.4th at p. 238, italics added.)

Although not stated in detail, the foregoing demonstrates that the First District 

interpreted the phrase “providing substitute resources” to encompass preserving (i.e., 

permanently protecting) existing agricultural land. (Guidelines, § 15370, subd. (e).) 

As further support for its conclusion that ACE’s mitigate the conversion of 

agricultural land despite not replacing the converted land, the First District noted the 

cases accepting offsite preservation of habitats for endangered species as a means of 

mitigating impacts on biological resources and stated there was no good reason to 

distinguish the use of offsite ACE’s to mitigate the conversion of agricultural land. 

(Masonite, supra, 218 Cal.App.4th at pp. 238–239, citing Preserve Wild Santee v. City of 

Santee (2012) 210 Cal.App.4th 260, 278 [loss of habitat mitigated by conservation of 

other habitat at a one-to-one ratio]; California Native Plant Society v. City of Rancho 

Cordova (2009) 172 Cal.App.4th 603, 610–611, 614–626 [mitigation by offsite 

preservation of two acres of existing habitat or creation of one acre of new habitat for 

each acre of habitat impacted by the project]; Endangered Habitats League, Inc. v. 

County of Orange (2005) 131 Cal.App.4th 777, 794 [mitigation by “off-site preservation 

of similar habitat”]; Environmental Council of Sacramento v. City of Sacramento (2006) 

142 Cal.App.4th 1018, 1038 [purchase of a half-acre for habitat reserves for every acre of 

development].)
34.

In addition, the First District discussed the “relatively sparse case law involving 

ACEs” and determined those cases supported its conclusion. (Masonite, supra, 218 

Cal.App.4th at pp. 239–240.) The court also noted ACE’s are commonly used in 

California as mitigation. (Id. at p. 240.) Finally, the court stated the Legislature had 

declared that the preservation of agricultural land is an important public policy and had 

declared CEQA was intended to effectuate the policy. (Masonite, supra, at pp. 240–241, 

citing Stats. 1993, ch. 812, § 1, p. 4428.)

The interpretation in Masonite of what constitutes compensatory mitigation for 

purposes of Guidelines section 15370, subdivision (e) was confirmed by the First District 

about nine years later when it rejected the argument that protection of an 85-acre site 

“under a conservation easement would not result in the provision of any new resources to 

offset or compensate for the [32 acres of] habitat permanently lost to the Project.” (Save 

the Hill Group v. City of Livermore (2022) 76 Cal.App.5th 1092, 1117, italics added.)

Our inquiry into the meaning of compensatory mitigation does not end with the 

First District’s interpretation of Guidelines section 15370, subdivision (e) because there is 

no horizontal stare decisis within the California Court of Appeal. Also, while courts 

ordinarily give deference to how the promulgating agency has interpreted its regulation 

(Fischl v. Pacific Life Insurance Company (2023) 94 Cal.App.5th 108, 122), we conclude 

the Natural Resources Agency’s interpretation of an ambiguous Guideline is not binding 

on the courts. Under Government Code section 11342.2, “no regulation adopted is valid 

or effective unless consistent and not in conflict with the statute and reasonably necessary 

to effectuate the purpose of the statute.” We infer from this provision that the 

interpretation of an ambiguous Guideline also must be consistent and not in conflict with 

CEQA and reasonably necessary to effectuate CEQA’s purpose. (See generally, 

Communities for a Better Environment v. California Resources Agency (2002) 103 

Cal.App.4th 98, 105 [upholding invalidation of certain CEQA Guidelines].)
35.

The main purpose of CEQA is “to provide long-term protection to the 

environment.” (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 

112.) Thus, “CEQA is to be interpreted ‘to afford the fullest possible protection to the 

environment within the reasonable scope of the statutory language.’ ” (Ibid.) Another 

purpose is identified in the Legislature’s declaration that CEQA “plays an important role 

in the preservation of agricultural lands.” (Stats. 1993, ch. 812, § 1, subd. (d), p. 4428; 

see Masonite, supra, 218 Cal.App.4th at p. 241.)

Interpreting the verb “providing” to encompass preserving or permanently 

protecting and the term “substitute resources” (Guidelines, § 15370, subd. (e)) to include 

existing agricultural land would promote the use of ACE’s, which would advance 

CEQA’s purpose of long term protection of the environment and its specific role of 

preserving agricultural land. In comparison, the interpretation that existing agricultural 

land is not a “substitute resource” for purposes of compensatory mitigation would 

diminish the use of ACE’s and result in less long term protection of California’s 

agricultural land. Therefore, the interpretation offered by the County is not the one that 

best effectuates CEQA’s purpose. As a result, we conclude the phrase “providing 

substitute resources” (Guidelines, § 15370, subd. (e)) includes preserving (i.e., 

permanently protecting) existing agricultural land. Consequently, ACE’s are a type of 

compensatory mitigation for the conversion of agricultural even though, operating by 

themselves, they do not replace the converted land or otherwise result in no net loss of 

agricultural land. (See generally, Sierra Club v. County of Fresno, supra, 6 Cal.5th at p. 

523 [mitigation measures must be at least partially effective, even if they cannot mitigate 

significant impacts to less than significant levels].)8

8 Based on this interpretation, we do not consider whether ACE’s provide a type of 

mitigation for purposes of CEQA that is not among the five examples set forth in 

subdivisions (a) through (e) of Guidelines section 15370. The latter question arises from 

the use of “includes” before the list of examples in Guidelines section 15370. (See 

Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1101 [“includes” ordinarily is “a term of 
36.

Consequently, the County failed to comply with CEQA when it eliminated the use 

of ACE’s as a mitigation measure for the conversion of agricultural land in situations 

where the permit applicant’s adoption of other mitigation has not reduced the net loss of 

agricultural land to zero acres.

9

 To remedy that noncompliance, the superior court shall 

issue a fourth peremptory writ of mandate directing the County to take corrective action

before reapproving the Revised Ordinance. (§ 21168.9, subd. (b).)

III. MITIGATION OF PM2.5 EMISSIONS*

A. Background

1. Prior CEQA Violations

In King & Gardiner, supra, 45 Cal.App.5th 814, Sierra Club challenged the 

mitigation measures for air quality impacts on several grounds. Our discussion of those 

challenges was not published. (Id. at pp. 870, 900.) One challenge asserted the 

mitigation measure for criteria pollutants,10 MM 4.3-8, should have separately addressed 

enlargement rather than limitation”].) Also, because ACE’s are effective at providing 

compensatory mitigation for project-specific impacts, the question whether they are 

effective at only addressing cumulative impacts to agricultural land does not arise. 

9 For some but not all permit applications, the mitigation measure requiring the 

removal of unused legacy equipment and restoration of the surface will offset the 

conversion of farmland caused by the drilling of a new well. Where an applicant’s 

proposed conversion of farmland is completely offset by other mitigation, it would be 

inappropriate to also require the applicant to provide compensatory mitigation, such as an 

ACE. 

* See footnote, ante, page 1.

10 The EPA has established health-based ambient air quality standards, or allowable 

limits, for seven “criteria pollutants”—ozone, carbon monoxide, nitrogen dioxide (NO2), 

sulfur dioxide (SO2), lead, respirable particulate matter (PM10), and PM2.5. PM10 

refers to particulate matter of 10 microns or less in diameter. (40 C.F.R. § 50.6(a); Cal. 

Code Regs., tit. 17, § 70100, subd. (i) [definition of suspended particulate matter 

(PM10)].) Because PM2.5 refers to particulate matter of 2.5 microns or less in diameter, 

it is necessarily a subset of PM10. (40 C.F.R. § 50.7(a); Cal. Code Regs., tit. 17, § 

70100, subd. (j).) 
37.

PM2.5 and should have provided enforceable mitigation for that pollutant. That 

challenge succeeded when we identified two CEQA violations that involved MM 4.3-8: 

“First, the EIR did not discuss the impact of the measure on PM2.5 

emissions or, alternatively, provide a rational explanation for why there is 

no separate discussion of the measure’s impact on PM2.5 emissions. 

Second, MM 4.3-8 does not provide for enforceable mitigation of PM2.5 

emissions, and there is no finding that mitigation of this specific pollutant 

was not feasible. These deficiencies must be remedied on remand.” 

2. Revisions After Remand

The County attempted to remedy the CEQA violations identified in this court’s 

opinion and the superior court’s writs of mandate by (1) preparing an SREIR with an 

extensive discussion of PM2.5 emissions, (2) certifying the completion of the SREIR, (3) 

adopting a clarified MM 4.3-8 that explicitly referred to PM2.5 emissions, and (4) 

amending the oil and gas emission reduction agreement with the Air District (OG-ERA) 

to explicitly address PM2.5. 

The SREIR’s discussion of PM2.5 emissions describes the attainment status of the 

San Joaquin Valley Air Basin (SJVAB) for PM2.5, attainment plans for PM2.5, and 

potential adverse health effects of PM2.5 emissions. It states the SJVAB has not attained 

federal or California PM2.5 standards, has not attained California PM10 standards, and

has attained federal PM10 standards. The SREIR includes a table summarizing ambient 

PM10 and PM2.5 data collected at monitoring stations in Kern County, a 2012 baseline 

of criteria pollutant emissions, significance thresholds for criteria pollutants (including 

PM10 and PM2.5), and several tables estimating emissions that would be caused by the 

project. 

The SREIR also attempts to clarify the enforceability and impact of MM 4.3-8 on 

PM2.5 emissions. As revised, the first two paragraphs of the MM 4.3-8 now provide:

“For criteria emissions not required to be offset under a District rule as 

described in MM 4.3-1, and for Project vehicle and other mobile source 

emissions, the County will enter into an emission reduction agreement with 
38.

the [Air] District, pursuant to which the Applicant shall pay fees to fully 

offset Project emissions of NOx (oxides of nitrogen), ROG (reactive organic 

gases), PM10 (particulate matter of 10 microns or less in diameter) and 

PM2.5 (particulate matter of 2.5 microns or less in diameter) (including as 

applicable mitigating for reactive organic gases by additive reductions of 

particulate matter of 10 microns or less in diameter) (collectively, 

‘designated criteria emissions’) to avoid any net increase in these 

pollutants. The air quality mitigation fee shall be paid to the County as part 

of the Site Plan review and approval process, and shall be used to reduce 

designated criteria emissions to fully offset Project emissions that are not 

otherwise required to be fully offset by District permit rules and 

regulations.

“As an alternative to paying the fee, an Applicant may reduce emissions for 

one or more designated criteria emissions through actual reductions in air 

emissions from other Applicant sources, as submitted to the County and 

validated by the [Air] District. This Project offset requirement alternative 

shall be enforced by the County and verified by [Air] District, and must be 

approved in advance by the [Air] District. If a voluntary emission 

reduction agreement is not executed by the County and [Air] District, then 

each Applicant must mitigate for the full amount of designated criteria 

pollutants as verified by the [Air] District, with evidence of such Districtverified offsets presented as part of the Site Plan Conformity Review 

application documentation.” 

Thus, MM 4.3-8 provides two pathways for mitigating emissions of criteria 

pollutants—either activities undertaken directly by the applicant or activities funded by 

the applicant’s fees in accordance with the terms of the OG-ERA. The third paragraph of 

MM 4.3-8 provides examples of feasible air emission reduction activities that might be 

implemented under either pathway. 

The OG-ERA was revised to mention PM2.5 in two places. First, a recital in the 

amended OG-ERA states that MM 4.3-8 requires applicants for permits issued under the 

Revised Ordinance to fully mitigate emissions of oxides of nitrogen, reactive organic 

compounds, PM10, and PM2.5 “through emission reductions that are either: (1) 

implemented by the Applicant, with the quantity of emission reduction verified by the 

[Air] District; or (2) funded by the Applicant through the [Air] District’s incentive 

programs, as described below.” Section 1 of the amended OG-ERA provides: 
39.

“Project-related Criteria Pollutant Emissions not required to be offset per 

[Air] District rules shall be fully mitigated by achieving surplus, 

quantifiable and enforceable emission reductions for ROG, NOx, PM10 and 

PM2.5 (collectively, ‘Mitigation of Criteria Pollutants’). ‘Surplus’ emission 

reductions are reductions that are not otherwise required by laws or 

regulations. The determination of whether proposed emission reductions 

are surplus shall be performed by the [Air] District.” (Italics added.) 

Subsequent provisions of the OG-ERA address the emission mitigation required, 

the emission mitigation fee required, and the use of the mitigation fees to reduce 

emissions. The OG-ERA states that the County and the Air District shall regularly meet 

and confer regarding potential projects and the final selection of emission reduction 

projects to be funded by the mitigation fees. 

The SREIR explains why table 4.3-32 includes a total PM value (i.e., combines 

PM10 and its subset, PM2.5) for use in (1) calculating the mitigation fees charged 

applicants and (2) tracking emission reductions achieved pursuant to the OG-ERA. One 

reason is that, historically, the Air District has addressed PM2.5 and PM10 jointly in its 

attainment plans and State Implementation Plan strategies for achieving both PM2.5 and 

PM10 air quality standards. The Air District explained its approach in responding to 

comments on a 2018 attainment plan:

“ ‘The [Indirect Source Review] rule targets NOx and PM10 emissions 

from mobile source equipment related to the project construction and 

operational activities. Particulate matter emissions from mobile source 

equipment emissions are overwhelmingly PM2.5, a subset of PM10. 

Therefore, the PM10 emission reductions achieved by our emission 

reduction incentive grants through expenditure of offsite fees collected 

under [Indirect Source Review] result directly in PM2.5 emission 

reductions. In other words, PM10 emissions increases are being offset by 

emission reductions that are overwhelmingly PM2.5, a positive impact on 

PM2.5 concentrations. Adding a PM2.5 emission reduction requirement to 

the existing PM10 emission reduction target will not contribute to further 

reduce actual PM2.5 emissions.’ ” 

The SREIR notes the State Air Resources Board (ARB) has accepted the Air 

District’s approach to PM2.5 attainment and states that, under the Air District’s approach, 
40.

the calculation of emissions reductions required by the OG-ERA includes PM2.5. The 

SREIR states that the County has relied on the Air District’s judgment that differentiating 

between PM2.5 and PM10 for purposes of incentive measures and tracking reductions 

from emission reduction projects (such as the projects funded under the OG-ERA) is not 

necessary and would not contribute to further reduction of actual PM2.5 emissions. The 

SREIR justifies this reliance by noting that the Air District is the expert agency with 

responsibility for air quality in the project area. The SREIR also states it is not currently 

possible to identify and commit to specific emission reduction projects for each year 

through 2035 and the OG-ERA provides flexibility to allow the mitigation fees to be 

spent on the most effective projects available at the time the fees are received. 

The SREIR forecasts that implementing MM 4.3-8’s two pathways “will offset 

NOx, PM10, and PM2.5 emissions to net zero” but states that actual reductions of ROG, 

NOx, PM10, and PM2.5 “remain impossible to certify as 100% reduced to zero.” Due to 

this uncertainty, the SREIR concludes the project’s air quality impacts are significant and 

unavoidable. It also states: “However, all reasonable and feasible mitigation has been 

required and will reduce the air emissions as close to a ‘no net increase’ from the current 

emissions over the next 21 years as is scientifically possible to quantify and confirm.” 

The SREIR estimates that the mitigation fees collected over the 21-year period will range 

from $260 million to $2.5 billion.11 

B. Contentions of the Parties

Sierra Club contends the County has failed to comply with CEQA because (1) 

CEQA requires the adoption of particular and fully enforceable mitigation measures for 

11 A table in the SREIR sets forth the yearly amount of mitigation fees paid for 

permits issued in 2016 through 2019. These fees totaled nearly $88.9 million and 

accounted for 91 percent of all mitigation fees received by the Air District under its 

various emission reductions agreements. By 2020, the Air District had entered into a 

running total of 45 such agreements, which includes the OG-ERA. 
41.

the project’s PM2.5 emissions; (2) the amended OG-ERA does not provide for such

mitigation; and (3) the County’s excuses for not adopting particular and fully enforceable 

mitigation for PM2.5 emissions are unavailing. 

The County contends MM 4.3-8 now uses mandatory language requiring 

applicants to mitigate PM2.5 emissions from project activities to no net increase and, 

similarly, the OG-ERA was amended to state that PM2.5 is a criteria pollutant that “shall 

be fully mitigated by achieving surplus, quantifiable and enforceable emission 

reductions.” On the issue of enforceability, the County asserts that, if projects funded 

through the OG-ERA inadequately mitigate PM2.5 emissions, the Revised Ordinance 

authorizes the County to take enforcement action and revoke any permit. The County 

also asserts (1) it will monitor and enforce the required offset of PM2.5 emissions 

pursuant to the mitigation monitoring and reporting program and (2) the required offset is 

an enforceable condition of permit issuance. 

In response, Sierra Club contends that MM 4.3-8 and the OG-ERA remain 

unchanged in substance because they continue to allow reductions in PM10 to be treated 

as offsets for PM2.5 emissions. It argues the County’s prediction that its approach will, 

in practice, result in offsetting the project’s PM2.5 emissions, is not a lawful substitute 

for adopting enforceable mitigation that actually requires PM2.5 emissions to be offset. 

C. Mitigation Requirement for PM2.5 is Enforceable

1. Applicable Law

CEQA provides that a “public agency shall mitigate or avoid the significant effect 

on the environment of projects that it carries out or approves whenever it is feasible to do 

so.” (§ 21002.1, subd. (b).) “If, after the feasible mitigation measures have been 

implemented, significant effects still exist, a project may still be approved if it is found 

that the ‘unmitigated effects are outweighed by the project’s benefits.’ ” (Sierra Club, 

supra, 6 Cal.5th at p. 524.) Even if a project’s benefits outweigh its unmitigated 
42.

environmental effects, CEQA requires agencies to implement all mitigation measures 

unless those measures are truly infeasible. (Sierra Club, supra, at pp. 524–525.) Before 

approving a project that will have significant environmental effects after implementation 

of all feasible mitigation measures, the agency must adopt a statement of overriding 

considerations. (Id. at p. 525; § 21081, subd. (b) [agency finding that specific benefits 

outweigh the significant environmental effects]; Guidelines, § 15093 [statement of 

overriding considerations].) The foregoing requirements reflect the EIR’s purpose of 

identifying the project’s significant environmental effects and describing how those 

effects can be mitigated or avoided. (§ 21002.1, subd. (a); Guidelines, § 15126.4, subd. 

(a).) 

The mitigation measures adopted by a lead agency must be “fully enforceable 

through permit conditions, agreements, or other measures. Conditions of project 

approval may be set forth in referenced documents which address required mitigation 

measures ....” (§ 21081.6, subd. (b).) Echoing this requirement, Guidelines section 

15126.4, subdivision (a)(2) states: “Mitigation measures must be fully enforceable 

through permit conditions, agreements, or other legally-binding instruments.” The 

responsibility of the public agency does not end with simply requiring enforceable 

mitigation measures. “The public agency shall adopt a reporting or monitoring program 

for the ... conditions of project approval, adopted in order to mitigate or avoid significant 

effects on the environment.” (§ 21081.6, subd. (a)(1).) The purpose of a monitoring 

program is to ensure compliance with the mitigation measures imposed as conditions of 

the project approval. (Ibid.)

2. Particularity of the Mitigation

Sierra Club contends a mitigation measure must be particular and fully 

enforceable. We conclude MM 4.3-8 contains the requisite particularity because, as 
43.

clarified in the SREIR, it specifically addresses PM2.5 and PM10 using mandatory 

language. 

First, MM 4.3-8 provides that the County will enter into an emission reduction 

agreement with the Air District. The County and the Air District have fulfilled this 

aspect of MM 4.3-8 by adopting, then amending, the OG-ERA. 

Second, MM 4.3-8 provides that, pursuant to the OG-ERA, applicants “shall pay 

fees to fully offset Project emissions of ... PM10 (particulate matter of 10 microns or less 

in diameter) and PM2.5 (particulate matter of 2.5 microns or less in diameter) ... to avoid 

any net increase in these pollutants.” Section 1 of the amended OG-ERA complies with 

MM 4.3-8 by providing that the project’s criteria pollutant emissions “shall be fully 

mitigated by achieving surplus, quantifiable and enforceable emission reductions for ... 

PM10 and PM2.5.” 

As a result, a CEQA defect in the prior version of MM 4.3-8—namely, the failure 

to address PM2.5 emissions—has been cured. In addition, MM 4.3-8’s phrases “fully 

offset” and “avoid any net increase” adequately describe the standard of mitigation of 

PM2.5 emissions that must be achieved.

3. Enforceability of the Mitigation Standard

Sierra Club’s argument that MM 4.3-8 is not fully enforceable as applied to PM2.5 

emissions raises two questions. First, does the County have the authority to enforce MM 

4.3-8’s requirement that PM2.5 emissions be fully offset? Second, if the County shirks 

its responsibility to enforce the mitigation measure, is there a means for enforcing the 

mitigation measure? The answer to both questions is yes.

The County contends provisions in the Revised Ordinance provide it with the 

authority to enforce MM 4.3-8. Section 19.98.040.A of the Revised Ordinance provides 

that no oil and gas activities may be undertaken until an application for a permit, along 

with payment of all fees, is submitted to and approved by the planning director as 
44.

consistent with section 19.98.060. Section 19.98.060.D of the Revised Ordinance 

provides that a permit applicant must “comply with all applicable Mitigation Measures as 

shown in the steps to compliance checklist in the approved Mitigation Monitoring and 

Reporting Program (MMRP).” To assist the County in determining whether the 

mitigation requirements are met, item 11 of section 19.98.080.E and item 15 of section 

19.98.085.F of the Revised Ordinance provide that the applicant’s site plan must include 

written documentation showing all conditions required by section 19.98.060 will be 

complied with, including all applicable mitigation measures listed in the MMRP. In 

accordance with these provisions, if the applicant does not pay the criteria pollutant 

mitigation fee or satisfy the alternate mitigation pathway, the County will enforce the 

mitigation measure by refusing to issue a permit. As a result, we conclude that the 

“measures are not vague as to how they will be [initially] enforced, [because] the County 

will enforce them during the approval process.” (Sierra Club v. County of Fresno, supra,

6 Cal.5th at p. 526.) 

Next, we consider the County’s ability to enforce the mitigation measure after the 

permit has been issued. We consider this issue because of the time lag between an 

applicant’s payment of a mitigation fee and the use of that fee to fund an emission 

reduction project approved by the Air District. Section 19.98.160 of the Revised 

Ordinance states that “[a]ny permit issued pursuant to this chapter may be revoked or 

modified pursuant to Section 19.102.020 of this Title.” In turn, section 19.102.020 

provides that any permit may be modified or revoked by the official or decision-making 

body that originally approved the permit by the same procedure under which the permit 

was issued if “any term or condition of the permit ... has not been complied with.” 

Under these provisions, if the County learns that the Air District’s emission reduction 

projects and incentive programs funded with the mitigation fees are not achieving the 

required level of mitigation of PM2.5 or other criteria pollutants, the County has the 

authority to revoke the permits issued previously with the expectation that emission 
45.

reduction projects would achieve the requisite offsets. Obtaining the information needed 

to exercise this authority is aided by section 1.3(b) of the OG-ERA, which provides that 

the Air District and the County shall meet and confer regularly regarding potential 

emission reduction projects and the final selection of those projects. This contractual 

provision provides the County with access to information about the emission reduction 

projects and their effectiveness in offsetting the emissions of criteria pollutants, including

PM2.5. Consequently, we conclude the Revised Ordinance and the OG-ERA provide the 

County with the authority to enforce the mitigation measure for PM2.5 after a permit has 

been issued. Furthermore, the OG-ERA provides a mechanism for obtaining information 

needed to enforce the mitigation requirements. Stated another way, the County has not 

forestalled enforcement by agreeing to be kept in the dark.

Consequently, we conclude the County has the authority and the means to enforce 

MM 4.3-8’s requirement that PM2.5 emissions be fully offset, both before and after 

permits are issued.

The final question about MM 4.3-8’s enforceability is what would happen if the 

County, either inadvertently or intentionally, fails to properly administer that measure. 

Such a situation could arise if, among other things, the County fails to assure the 

emission reduction projects funded with the mitigation fees do, in fact, fully offset the 

PM2.5 emissions. 

Our analysis of this question begins with the Board’s findings in support of its 

adoption of the SREIR and approval of the project. In section 1 of the findings, the 

Board (1) stated “the County hereby binds itself to implement these [mitigation] 

measures” and (2) found that “[t]he County will use the MMRP to track compliance with 

Project mitigation measures.” As a result, the Board explicitly bound the County to 

implement the mitigation measures and track compliance pursuant to the MMRP. Any 

failure of the County to fulfill this duty “would amount to an abuse of discretion, which 

could be corrected in a court mandamus proceeding.” (Sierra Club v. County of Fresno, 
46.

supra, 6 Cal.5th at p. 526; see Rominger v. County of Colusa (2014) 229 Cal.App.4th 

690, 727 [abuse of discretion related to dust control mitigation measure “could be 

remedied through the courts in mandamus”].)

Consequently, we conclude the mitigation measure for PM2.5 emissions is “fully 

enforceable” as that term is used in section 21081.6, subdivision (b) and Guidelines 

section 15126.4, subdivision (a)(2) and explained by our Supreme Court in Sierra Club v. 

County of Fresno, supra, 6 Cal.5th 502.

IV. MULTI-WELL HEALTH RISK ASSESSMENT*

A. Background

1. Previous Decision

The introduction to our 2020 opinion stated the conclusions that (1) the MultiWell Health Risk Assessment prepared in October 2015 by Environmental Compliance 

Solutions, Inc. constituted new information that had been omitted from the draft EIR; (2) 

the new information was significant because the draft EIR inadequately addressed the 

subject of multiple oil wells in a given area and there was no meaningful public review 

and comment on the new assessment; and (3) the Multi-Well Health Risk Assessment 

must be included in any revised EIR recirculated to correct the other CEQA violations. 

(King & Gardiner, supra, 45 Cal.App.5th at p. 830.) An unpublished part of the opinion 

set forth the supporting analysis and legal principles. That analysis did not address (1) 

the adequacy of the discussion in the Multi-Well Health Risk Assessment or (2) the 

methodologies employed. Our remand order required the superior court to issue a writ of 

mandate directing the County to (1) recirculate a revised EIR and the Multi-Well Health 

Risk Assessment for public review and comment and (2) prepare and publish responses 

to the comments received before certifying the completion of any revised EIR and 

reapproving the project. (Id. at p. 901.) 

* See footnote, ante, page 1.
47.

2. Recirculation of the SREIR

The County’s April 2020 “Initial Study/Notice of Preparation” stated the SREIR, 

including the Multi-Well Health Risk Assessment, would be recirculated for public 

review and comment and the County would prepare and publish responses to the 

comments. The Multi-Well Health Risk Assessment, the June 2015 single-well health 

risk assessment, and the September 2015 updated single-well health risk assessment were 

included in appendix B of the SREIR. In addition, a Supplemental Health Risk 

Assessment Technical Memorandum dated October 2020 (technical memorandum) was 

included in the SREIR as appendix B-1. The technical memorandum provided a further 

explanation of the assumptions, modeling, and conclusions in the Multi-Well Health Risk 

Assessment. An assumption important to this appeal was that the hypothetical sensitive 

receptor being assessed “had a 300m x 300m (or approximately 1,000 foot fence around 

it).” 

Impact 4.3-3 of the October 2020 draft SREIR addressed the exposure of sensitive 

receptors12 to substantial pollutant concentrations and described the three health risk 

assessments prepared in 2015. The three assessments evaluated potential cancer risks, 

acute (short term) noncancer risks, and chronic (long term) noncancer risks13 resulting 

from toxic emissions associated with oil and gas processing equipment and with well 

construction, drilling, and completion. Generally, an assessment of health risks involves 

four steps: (1) hazardous emission estimations, (2) exposure assessment, (3) doseresponse assessments, and (4) quantification of potential health risks. 

12 The Revised Ordinance defines a sensitive receptor as a church, hospital, single or 

multi-family dwelling, or place of public assembly where 100 or more people gather in a 

building or structure for purposes of amusement, entertainment or retail sales. 

13 The temporal aspect of these types of risks was defined in a report prepared for 

Lions Farming by Dr. Phyllis Fox, which stated: “Acute impacts are those that occur 

over a 1-hour exposure time while cancer and chronic impacts result from a lifetime of 

exposure.” 
48.

Each assessment described the guidelines, software, and models used. The 

assessments followed the California’s Office of Environmental Health Hazard 

Assessment (OEHHA) “Air Toxics Hot Spots Program Risk Assessment Guidelines,” as 

amended in March 2015. In accordance with the guidelines’ recommendation, the 

assessments used the ARB’s “Hotspots Analysis and Reporting Program, Version 2” 

(HARP2). HARP2 includes a dispersion module, an exposure-dose module, and a risk 

module. The dispersion module incorporates the EPA’s AERMOD, which predicts 

resulting cumulative concentrations from various emission sources. AERMOD includes 

a terrain processor, AERMAP, that incorporates actual terrain elevations for sources and 

receptors. The Multi-Well Health Risk Assessment stated that five years of 

meteorological data required for AERMOD was obtained from the Air District. 

The draft SREIR stated the Air District’s thresholds of significance considered the 

following risks were acceptable: (1) a cancer risk equal or less than 10 in one million,14

(2) a chronic hazard index equal to or less than one, and (3) an acute hazard index equal 

to or less than one. It also stated that the 2015 single-well assessments showed the 

potential cancer risk exceeded the 10 in one million threshold “for drilling a 10,000-foot 

well in any Project year, for drilling a 5,000-foot well in year 2015, and for operations of 

the oil processing equipment.” The draft SREIR dealt with the cancer risk associated 

with well drilling and construction by determining how far a receptor needed to be from 

the well site and project boundary to have the receptor’s risk drop below 10 in one

14 Section 5.0 of the Multi-Well Health Risk Assessment stated a project’s cancer 

risk equal to or less than 20 in one million is not considered significant under the Air 

District’s published thresholds and, therefore, is acceptable. Section 1.0 of the September 

2015 updated single-well health risk assessment stated the Air District’s comment letter 

to the draft EIR requested that the assessment’s results be compared against the Air 

District’s significance threshold for toxic air contaminants of 20 in one million. Thus, the

Board’s March 2021 findings in support of the project applied the Air District’s risk 

threshold of 20 in one million. Similarly, this opinion uses 20 in one million as the 

significance threshold for cancer risk.
49.

million. For example, the setback needed for a 10,000 foot-deep well drilled in the 

western or central subarea was estimated at 367 feet in 2015 and 232 feet in 2020 after 

stricter diesel emission standards went into effect. Based on these estimates, MM 4.3-5 

provides that where a sensitive receptor is within 4,000 feet of a well construction site, 

the application must provide information “showing the distance from the closest edge of 

the well pad to the property line of the nearest sensitive receptor” and the minimum 

distances shall be 367 feet for a 10,000 foot well in the western or central subarea and 

296 feet for a 10,000 foot well in the eastern subarea. For wells 5,000 feet deep, the 

setback distance is 116 feet in the western or central subarea and no setback is imposed in 

the eastern subarea. 

The draft SREIR described the Multi-Well Health Risk Assessment and some of 

its underlying assumptions and noted the primary driver for cancer risk is days of drilling, 

not well depth. The draft SREIR stated that under the conservative multi-well scenario 

assumed, the Multi-Well Health Risk Assessment found the cancer health risk would be 

9.3 in one million, which was below the Air District’s threshold of 20 in one million. 

As to acute and chronic noncancer impacts, the draft SREIR stated they were not 

considered because approximately 99.9 percent of the risk associated with the multi-well 

scenario came from diesel particulate matter (DPM) and, as shown in the single-well 

assessments, the acute and chronic noncancer impacts were well below the Air District’s 

thresholds. For instance, Table 4.3-36 listed the potential acute impacts identified in the 

June 2015 single-well health risk assessment as 0.0098 on a scale that regarded the 

hazard as significant when it was 1.0 or more. 

3. Comments to the SREIR

Lions Farming’s September 16, 2020 comment letter asserted the draft SREIR had 

not corrected defects in the Multi-Well Health Risk Assessment. The letter referred to 

Dr. Fox’s November 2015 report, which asserted the assessment did not analyze impacts 
50.

from multiple wells at densities that actually occur in Kern County. Dr. Fox’s report 

stated that 48 wells drilled in concentric circles around a sensitive receptor in an area 

with a diameter of one mile (i.e., 2,011 acres) would have only 0.02 wells per acre (or 

one well per 42 acres) and included photographs of oil fields where well densities were 

much higher. 

Sierra Club’s September 16, 2020 comment letter asserted the County must revise 

the Multi-Well Health Risk Assessment because, among other things, the way the wells 

were modeled in rings at distances of approximately 0.2 mile, 1/3 mile, 1/2 mile, and one 

mile created artificially low pollutant concentrations. In addition, the letter asserted the 

proposed setback requirements were arbitrary and inconsistent. 

The ARB’s December 14, 2020 comment letter stated the draft SREIR should 

clearly state the assumptions made in the Multi-Well Health Risk Assessment and 

asserted the assessment may have severely underestimated the project’s potential health 

risks to residents and communities near drilling and production activities. ARB’s 

comments addressed acute risks and also asserted that, because over 2,000 notices of 

intent to drill were submitted to the County in 2019 and wells continue to emit pollutants 

throughout their productive lifespan, the Multi-Well Health Risk Assessment should have 

examined the lifetime air quality impacts of new wells. 

4. The County’s Responses to Comments

The County’s response No. 0008-27 addressed in two ways Lions Farming’s 

comment that the well density used in the Multi-Well Health Risk Assessment did not 

reflect actual well densities in Kern County. First, the response attempted to explain why 

the well density used was appropriate. It stated the Multi-Well Health Risk Assessment 

analyzed a well density of approximately 13 wells per square mile and asserted the 

majority of Kern County has well densities in the range of one to 99 wells per square 

mile and a much smaller subset of areas have well densities greater than 400 wells per 
51.

square mile. The response stated Dr. Fox’s suggestion that a well density of more than

600 wells per square mile was common was not supported and provided a color-coded 

map showing seven categories of well density across Kern County. 

Second, response No. 0008-27 stated the driver of health risks was drilling, not 

ongoing production operations. Accordingly, the response stated, “the relevant inquiry is 

not the overall well density in any area in [Kern] County but (1) the density of wells 

being drilled proximate in time to each other, and (2) the density of these wells near a 

particular sensitive receptor such that the sensitive receptor will be exposed to the risks 

from drilling multiple wells over time.” In other words, overall well density is not the 

appropriate metric for multi-well modeling when the health risk is predominately related

to drilling. The response stated, the Multi-Well Health Risk Assessment did not assume a 

well density for operating well “but for wells being drilled at the same time or in close 

temporal succession.” More specifically, it assumed “that forty-eight 13,000-foot wells 

would be drilled not only in close proximity to a single sensitive receptor but also close in 

time to each other in order that they would impact one individual over their lifetime 

living at the same location. See SREIR (October 2020), Vol. 1, at 4.3-152–155.” The 

response asserted that this and other assumptions “are extremely conservative.” The 

response explains that, at any given time between 2015 and 2020, there had been four to 

12 drill rigs operating in Kern County and, since April 2020, that there had been only 

three or four.15 The response predicted that the number was unlikely to increase in the 

near future, but made no attempt to correlate drilling activity to the 2,697 ministerial 

permits that Revised Ordinance section 19.98.040.C authorized to be issued each 

calendar year. The response concluded that drilling 633 wells in one location was not 

reasonably foreseeable because, based on the rigs present in Kern County, it would take 

15 Table 1 in the September 2015 updated single-well health risk assessment stated it 

takes “3 rigs at 1,040 HP each” drilling for 23 days to complete a 10,000-foot well and “3 

rigs at 440 HP each” drilling for eight days to complete a 5,000-foot well. 
52.

98 years, which was beyond the longest period it would be reasonable to assume the same 

person was located at one sensitive receptor. The response also concluded that the 

setback distances in the SREIR’s MM 4.3-5 “reduces impacts of health risk from Project 

activities to below [Air District] thresholds” and the Multi-Well Health Risk Assessment 

“demonstrates that this mitigation measure would adequately protect the public from the 

potential health risks due to exposure from multiple wells.” 

The County’s response No. 0009-33 addressed the Sierra Club’s comment that the 

setback distances in the Revised Ordinance and various mitigation measures were 

inadequate to protect public health. The response stated the setback distances were based 

on the health risk assessments and referred to response No. 0008-27’s discussion of the 

adequacy of those assessments and resulting setback distances. Addressing clarity and 

enforceability, the response stated the minimum distances established by the mitigation 

measures “are immutable—no new well may be located within 210 feet of a sensitive 

receptor or within 300 feet of a school.” Addressing how the distances are measured, the 

response stated the distances in “the air quality mitigation measures are measured from 

the closest edge of the well pad to the property line of the nearest sensitive receptor.” 

The County’s response No. 00014-7 addressed the ARB’s comment that health 

risks might be underestimated because there is a potential to drill a new well every day of 

the year—a comment supported by CalGEM data showing that over 2,000 notices of 

intent to drill were submitted to the County in 2019. The response stated that only 759 of 

the notices were for oil and gas production wells and, furthermore, not every well for 

which a permit is obtained is drilled. The response also stated that for purposes of the 

health risk assessments, it is the number of wells drilled proximate in time near a single 

sensitive receptor that matters, not the total number of wells drilled across the entire 

project area. 
53.

5. Board’s Findings of Fact

The Board’s findings of fact in support of the final SREIR described various 

assumptions made in the Multi-Well Health Risk Assessment, including that (1) “fortyeight 13,000 foot wells would be drilled in concentric circles around a sensitive receptor, 

12 at 1/8 of a mile, 12 at 1/4 of a mile, 12 at 3/4 of a mile and 12 at 1 mile”;16 (2) “all 

phases of the drilling occurred concurrently”; (3) “each well would have an associated 

mud sump with emissions”; and (4) “well re-work would occur on every well every other 

year.” The Board found these assumptions were extremely conservative because (1) 

wells of 13,000 feet were considerably deeper than the average well in Kern County; (2) 

only 3 percent of such wells were deeper than 10,000 feet; (3) historically, between 2015 

and 2020, four to 12 drill rigs were in Kern County at any given time; and (4) it would 

take eight rigs drilling continuously for almost a year to drill 48 wells 13,000 feet deep. 

Another assumption stated in the technical memorandum was that all PM10 was assumed 

to be toxic DPM that was inhalable even though approximately 9 percent of DPM might 

not be inhalable. 

The Board addressed the alternative of an ordinance using a 2,500-foot setback 

and found the alternative would not result in less severe environmental impacts than the 

setbacks required by MM 4.3-5. To support this finding, the Board referred to the MultiWell Health Risk Assessment’s determination that, under conservative assumptions, the 

cancer risk would only be 9.3 in one million, which was well below the Air District’s 

threshold of 20 in one million. One way of interpreting this response is that, because the 

identified cancer risk was not significant for purposes of CEQA, further consideration of 

an alternative with a lower cancer risk was not required.

16 This description of the distances is inaccurate and conflicts with the technical 

memorandum’s statement about a 300-meter fence. An eighth of a mile is 660 feet 

(0.125 of a mile), while 300 meters is approximately 984.25 feet (0.1864 of a mile). The 

County asserts it addressed the discrepancies in its responses to comments and the 

findings would not be altered by correcting the discrepancies. 
54.

B. Contentions

On appeal, Sierra Club contends the Multi-Well Health Risk Assessment does not 

comply with CEQA because it does not analyze health risks posed by drilling allowed by 

the Revised Ordinance—specifically, drilling two or more wells close to a home or 

school. Sierra Club argues the Multi-Well Health Risk Assessment’s remarkable 

prediction of a lower cancer risk from drilling 48 wells simultaneously than from drilling 

a single well is explained by the fact that the Multi-Well Health Risk Assessment only 

evaluated wells separated from sensitive receptors by distances much greater than 

allowed by the Revised Ordinance. Sierra Club restates this argument by asserting the 

Multi-Well Health Risk Assessment does not evaluate the nearest and most dangerous 

drilling allowed by the Revised Ordinance and, thus, violates CEQA by failing to identify 

and discuss a foreseeable and significant health risk. 

The County contends the SREIR’s analysis of health risks is adequate for purposes 

of CEQA and its findings of fact are supported by substantial evidence. The County 

relies on the principle that CEQA requires an EIR to study only reasonably foreseeable 

consequences of the project. (See High Sierra Rural Alliance v. County of Plumas (2018) 

29 Cal.App.5th 102, 125, citing Laurel Heights Improvement Assn. v. Regents of 

University of California (1988) 47 Cal.3d 376, 390–391 (Laurel Heights I).) The County 

also contends a dispute over the methodology used to evaluate an environmental impact 

is subject to the substantial evidence test and the hypothetical assumed by Sierra Club is 

not supported by substantial evidence. The County characterizes Sierra Club’s attack as 

asserting “the County must analyze ... 48 wells located at the closest distance allowed by 

the Ordinance [citation] regardless of whether that scenario is reasonably foreseeable or 

likely.” 

Sierra Club’s reply asserts the County has persisted in mischaracterizing its claim 

and the County’s brief is devoted to knocking down a straw man. Sierra Club contends 

the County’s failure to analyze the drilling of multiple wells at the shorter distances 
55.

allowed by the Revised Ordinance is an informational defect, not a methodological 

choice, and the County’s failure to explain the absence of an evaluation of health risks 

from drilling at shorter distances constitutes a separate CEQA violation. 

C. Impact Zone and Methodology

In Sierra Club v. County of Fresno, supra, 6 Cal.5th 502, the Supreme Court 

stated that a public agency’s “decision to use a particular methodology and reject another 

is amenable to substantial evidence review.” (Id. at p. 514.) The court reframed this 

principle by stating “underlying factual determinations—including, for example, an 

agency’s decision as to which methodologies to employ for analyzing an environmental 

effect—may warrant deference.” (Id. at p. 516; accord, Bakersfield Citizens for Local 

Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1198.) In contrast, “whether 

a description of an environmental impact is insufficient because it lacks analysis or omits 

the magnitude of the impact is not a substantial evidence question.” (Sierra Club v. 

County of Fresno, supra, at p. 514.) 

The parties agree a choice of methodology is entitled to deferential review, but 

dispute whether the setback distances adopted in the Multi-Well Health Risk Assessment 

qualifies as a choice of methodology. They also dispute whether this case is comparable 

to Sierra Watch v. County of Placer (2021) 69 Cal.App.5th 86 (Sierra Watch). 

1. Sierra Watch

In Sierra Watch, the real party in interest sought the county’s approval of a 

proposal to develop a 94-acre resort. (Sierra Watch, supra, 69 Cal.App.5th at p. 91.) 

The project’s EIR did not consider noise impacts occurring more than 50 feet from the 

expected construction activity, except for impacts on a boarding school. (Id. at p. 106.) 

The school was 250 feet from the construction activity and the EIR acknowledged the 

school would experience noise levels up to 85 decibels and those noise levels would 

cause a significant impact. (Id. at p. 107.) The EIR did not discuss the reasons for 
56.

omitting an evaluation of other noise impacts outside the 50-foot zone. (Id. at p. 106.) 

The plaintiff’s CEQA claims asserted, among other things, the EIR’s analysis of the 

project’s construction noise impacts was inadequate. (Sierra Watch, supra, at p. 104.) 

The plaintiff argued that “ ‘the EIR does not analyze the Project’s full geographic range 

of noise impacts, for it ignores activities occurring farther than 50 feet from sensitive 

receptors.’ ” (Id. at p. 106.) The Third District agreed that the EIR’s analysis was 

inadequate and instructed the trial court to issue a writ of mandate. (Id. at pp. 104, 111.) 

In Sierra Watch, the court concluded use of a 50-foot zone was “arbitrary line 

drawing,” which resulted in the EIR ignoring expected impacts occurring outside the area 

defined by the 50-foot boundary. (Sierra Watch, supra, 69 Cal.App.5th at p. 107.) 

Although the opinion did not state this conclusion about arbitrariness was essentially a 

factual determination, we regard it as such. (See Halaco Engineering Co. v. South 

Central Coast Regional Com. (1986) 42 Cal.3d 52, 79 [whether agency’s conduct is 

arbitrary or capricious for purposes of Gov. Code § 800 is essentially a question of fact].) 

The court in Sierra Watch gave two reasons to support its factual determination that noise 

impacts were expected to occur outside the 50-foot zone. First, “while the EIR would 

acknowledge significant impacts to a receptor sitting 50 feet from expected construction 

activity, it would altogether ignore potential impacts to a receptor sitting an inch more 

distant — even though the noise levels at these two distances would presumably be the 

same.” (Sierra Watch, supra, at pp. 106–107.) Second, the EIR acknowledged that noise 

impacts at the boarding school, which was 200 feet beyond the 50-foot zone, would be 

significant. (Id. at p. 107.) The existence of a significant noise impact at an additional 

200 feet from the 50-foot zone strongly supported the inference that other significant 

noise impacts could occur beyond the 50-foot zone. As a result, the court concluded the 

EIR should have considered potential noise impacts to other receptors over 50 feet from 

the project or, alternatively, explained why those impacts were excluded from the 

discussion. (Ibid.) 
57.

After setting forth the foregoing application of CEQA’s principles to the facts of 

the case and the resulting conclusions, the court in Sierra Watch provided a further layer 

of analysis by explaining the defects in arguments made by the real party in interest. 

Those arguments asserted that (1) it was “ ‘standard’ ” to focus on receptors located 

within 50 feet of construction activity and (2) the agency’s use of that distance was a 

methodological issue entitled to deference. (Sierra Watch, supra, 69 Cal.App.5th at p. 

107.) The court rejected the use of a so-called “standard” for the simple reason that the 

record contained evidence of noise impacts outside the 50-foot radius. (Ibid.) The court 

also concluded an agency “cannot employ a methodological approach in a manner that 

entirely forecloses consideration of evidence showing ... impacts to areas sitting beyond 

50 feet from construction activities.” (Ibid.) In other words, if the use of a 50-foot radius 

was a methodological choice, that choice was not supported by substantial evidence and, 

moreover, directly contradicted the evidence about noise impacts.

We interpret Sierra Watch as concluding the EIR’s approach to the project’s noise 

impacts resulted in two CEQA violations. First, the use of the 50-foot zone itself was a 

violation of CEQA because it excluded from consideration some of the project’s 

significant noise impacts. Stated another way, substantial evidence did not support a 

factual finding that the construction activities would have no significant noise impacts 

beyond the 50-foot zone. Indeed, the evidence showed the opposite. (Sierra Watch, 

supra, 69 Cal.App.5th at p. 107.) Second, the EIR was inadequate as an informational 

document because it did not explain why “it declined to consider potential noise impacts” 

to receptors other than the boarding school that were outside the 50-foot zone. (Ibid.; see 

Guidelines, § 15121 [EIR is an informational document].) In our view, the second 

violation identified in Sierra Watch is less important in the context of that case because 

the action taken to correct the first violation most likely would remedy the EIR’s 

informational defect—that is, a corrected EIR likely would discuss the significant noise 
58.

impacts beyond the 50-foot zone and, thus, would not need to explain why those impacts 

were not considered. 

The parties dispute whether Sierra Watch is analogous to the present case; they do 

not contend it contains legal error and, therefore, different principles should be applied 

here. To address the parties’ dispute, we summarize the relevant precedent contained in 

Sierra Watch. First, from a broad perspective, Sierra Watch adopted an approach for 

analyzing CEQA compliance where an EIR’s evaluation excludes an area or zone where 

there is, or might be, significant environmental impacts. We will use Sierra Watch’s 

approach as the broad framework for analyzing the “excluded zone” in this case—a term 

we use for the area outside the setbacks adopted in the Revised Ordinance and inside the 

300-meter by 300-meter fence17 that the Multi-Well Health Risk Assessment assumed 

surrounded the sensitive receptor.

As described two paragraphs earlier, the first inquiry in that broad framework is 

whether the agency’s adoption of an excluded zone violated CEQA because it resulted in 

a significant environmental impact not being considered. Here, the evidence does not 

plainly demonstrate that there would be significant cancer risk impacts within the 

excluded zone. Thus, we cannot adopt the first conclusion reached in Sierra Watch—

namely, that the EIR violated CEQA by failing to address some significant environmental 

impacts whose existence was plainly demonstrated by the record. Instead, we are 

confronted with a case where it is unclear whether it is reasonably foreseeable that 

activity from the project within the excluded zone would cause a significant 

environmental impact—specifically, a significant cancer risk over the lifetime of a 

sensitive receptor. Due to this lack of clarity, we must address the second inquiry in 

17 The County’s use of the term “fence” is, for practical purposes, a euphemism or 

shorthand way of describing a setback distance that is larger than the 210-foot and 300-

foot setbacks contained in the Revised Ordinance. When 300 meters is multiplied by 

3.28084 feet per meter, the result is 984.252 feet (approximately 0.1864 of a mile). 
59.

Sierra Watch’s broad framework and consider whether the SREIR violates CEQA 

because it is inadequate as an informational document. 

2. Potentially Significant Effect

The broad question of whether the SREIR adequately discussed the project’s 

cancer risks, presents a series of more specific questions. Under our interpretation of 

CEQA and the case law, the initial question is whether the risk of cancer from drilling 

multiple wells near a sensitive receptor is a potentially significant effect. That question is 

derived from the principle that an EIR must “consider and resolve every fair argument 

that can be made about the possible significant environmental effects of a project.” 

(Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 

Cal.App.4th 1099, 1109.) We interpret the quoted language as the equivalent of our 

Supreme Court’s references to “the discussion of potentially significant effects in an 

EIR” and “the discussion of a potentially significant effect.” (Sierra Club v. County of 

Fresno, supra, 6 Cal.5th at pp. 515–516, italics added.) The latter phrase appears in the 

court’s statement of the basic principle that “a reviewing court must determine whether 

the discussion of a potentially significant effect is sufficient or insufficient, i.e., whether 

the EIR comports with its intended function of including ‘ “ ‘detail sufficient to enable 

those who did not participate in its preparation to understand and to consider 

meaningfully the issues raised by the proposed project.’ ” ’ ” (Ibid.) Deciding “whether 

a discussion is sufficient is not solely a matter of discerning whether there is substantial 

evidence to support the agency’s factual conclusions. [¶] The ultimate inquiry ... is 

whether the EIR includes enough detail ‘to enable those who did not participate in its 

preparation to understand and to consider meaningfully the issues raised by the proposed 

project.’ [Citations.] The inquiry presents a mixed question of law and fact.” (Id. at p. 

516; see pt. I., ante [Standard of Review].)
60.

The question whether the cancer risk from drilling multiple wells near a sensitive 

receptor is potentially significant is easily answered. First, the SREIR and the MultiWell Health Risk Assessment themselves have addressed the cancer risk of drilling 

multiple wells, which implies that the risk caused by the project has the potential to be 

significant. Second and most importantly, our independent review of the record has 

located substantial evidence to support a fair argument that the drilling of multiple wells 

near a sensitive receptor may have a significant environmental impact due to an increased 

risk of cancer. (See generally, Guidelines, § 15384, subd. (a) [term “fair argument” used 

in the definition of “substantial evidence”].) That substantial evidence includes, without 

limitation, (1) the fact that the Revised Ordinance’s setback distances were based on the 

point from the receptor where the cancer risk from drilling a single well dropped below 

the 10 in one million threshold of significance; (2) the fact that the Revised Ordinance 

authorizes 2,697 permits to be issued annually, which relates to the potential volume of 

well drilling per year; and (3) the evidence of existing wells, which shows that wells can 

and have been located close to one another. Therefore, we conclude the cancer risk of 

drilling multiple wells is a potentially significant impact for purposes of CEQA that must 

be discussed in the EIR.

3. Adequacy of the Discussion

The SREIR and the Multi-Well Health Risk Assessment did discuss the potentially 

significant risk of cancer from drilling multiple wells and set forth the conclusion that the 

risk was not significant. Whether that discussion was legally sufficient for purposes of 

CEQA depends on whether the SREIR included details sufficient to enable those who did 

not participate in its preparation to understand and to consider meaningfully the issues 

raised by the proposed project. (Sierra Club v. County of Fresno, supra, 6 Cal.5th at p. 

516.) This presents a mixed question of law and fact. (Ibid.) We analyze the underlying 
61.

factual determinations under the deferential substantial evidence standard of review. 

(Ibid.) 

The SREIR and the Multi-Well Health Risk Assessment evaluated the project’s 

cancer risk for sensitive receptors by assuming sensitive receptors were located 300 

meters (984.25 feet) from the nearest well being drilled, adopting other assumptions, and 

plugging those assumptions and other data into the models chosen (e.g., HARP2, 

AERMOD, and AERMAP). The 984.25-foot “fence” or setback used in the SREIR is 

much larger than the setbacks required by section 19.98.060.A of the Revised Ordinance, 

which provides that no oil or gas well shall be drilled within (1) 100 feet of any building 

utilized for commercial purposes, (2) 210 feet of any sensitive receptor, and (3) 300 feet 

from the property line of a parcel containing a school. 

The failure of the SREIR and the Multi-Well Health Risk Assessment to analyze 

the risk for a sensitive receptor, such as a residence, where at least one of several wells 

was drilled near the 210-foot setback distance specified in the Revised Ordinance creates 

the following question: Does substantial evidence support an implied factual finding that 

the drilling of a single well near the 210-foot setback distance from a residence or other 

sensitive receptor is not reasonably foreseeable?18 

18 We assume, without deciding, that this and any other implied findings discussed 

below (so long as supported by substantial evidence) would justify the SREIR’s failure to 

discuss a multiple well scenario where at least one well is drilled near the 210-foot 

setback. This assumption about implied findings is favorable to the County when 

compared to the alternative of requiring explicit findings supported by substantial 

evidence to support the conclusion that omitting a discussion of such a scenario would

not harm the ability of the Board and the public “to understand and consider 

meaningfully the [cancer risk] raised by the project.” (Laurel Heights I, supra, 47 Cal.3d 

at p. 405; see Sierra Club v. County of Fresno, supra, 6 Cal.5th at p. 516; Guidelines, § 

15002, subd. (a)(1) [a basic purpose of CEQA: “Inform governmental decision makers 

and the public about the potential, significant environmental effects of proposed 

activities”].) .
62.

The terms of the Revised Ordinance demonstrate there is a potential for wells to 

be drilled about 210 feet from a sensitive receptor. (Revised Ordinance, § 19.98.060.A.) 

Therefore, we next consider whether the evidence supports a finding that drilling such a 

well, while possible, is not reasonably foreseeable. (See Guidelines, §§ 15144 

[forecasting], §15145 [speculation].) In conducting our review, we located no evidence 

supporting the inference that drilling a well approximately 210 feet or slightly further 

from a sensitive receptor is not reasonably foreseeable. Furthermore, the County has not 

addressed this factual question and, thus, has not referred to any evidence supporting an 

implied finding that drilling such a well is unforeseeable. Therefore, on this narrow yet 

basic question, we conclude an implied finding that the drilling of such a well was not 

reasonably foreseeable lacks evidentiary support. (Cf. King & Gardiner, supra, 45 

Cal.App.5th at p. 869, fn. 23 [an implied finding by the Board was not supported by 

substantial evidence].) As a result, we reject the existence of such an implied finding.

Having addressed the drilling of a single well within the excluded zone and near 

the 210-foot setback distance from a sensitive receptor, we next consider the drilling of 

additional wells that might impact the same receptor. Again, we frame the issue as 

whether substantial evidence supports an implied factual finding that it is not reasonably 

foreseeable that additional wells would be drilled near a sensitive receptor with a well 

drilled just outside its setback distance. 

As before, we have not located substantial evidence supporting an implied finding 

that it is unforeseeable that additional wells could be drilled near a sensitive receptor that 

has had a well drilled just outside the setback distance. The County’s appellate briefing 

has not addressed this specific question and, thus, has not cited any evidence on point. 

In contrast, the scenario evaluated in the SREIR and the Multi-Well Health Risk 

Assessment assumes wells are drilled near one another. Figure 1 in Dr. H. Andrew 

Gray’s September 15, 2020 memorandum illustrates the scenarios’ use of four rings of 

wells centered around sensitive receptors. 
63.

In Figure 1 of the memorandum, orange dots represent each of the 48 wells 

located on the concentric rings. On both the first (inner) and second rings, two wells are 

positioned near one another in the twelve o’clock, three o’clock, six o’clock and nine 

o’clock locations, with one additional well positioned on each ring midway between the 

four pairs of wells. Thus, the two innermost rings contain 12 wells each. Gray’s 

memorandum states that the wells on the first ring are located from 0.18 to 0.22 miles 

from the centrally located receptors and the second ring wells are located from 0.31 to 

0.34 miles from the receptors. Therefore, the distance between the wells at the 12 

o’clock position on the first and second rings is approximately 0.13 miles or 684.4 feet. 

Thus, if a sensitive receptor were located 210 feet above (presumably north of) the 2 

wells on the first ring’s 12 o’clock position, the receptor would be roughly 474 feet from 

the two wells in the 12 o’clock position on the second ring. Consequently, the MultiWell Health Risk Assessment’s configuration of multiple wells relatively close together 

suggests it is reasonably foreseeable that additional wells could be drilled near a sensitive 

receptor that has had a well drilled just outside the applicable setback distance.

Consequently, we conclude substantial evidence does not support an implied 

factual finding that it is not reasonably foreseeable that additional wells could be drilled 

near a sensitive receptor that has had a well drilled just outside the setback distance. 

Next, because the SREIR addresses the timing of the drilling of multiple wells, we 

examine when those wells might be drilled. In particular, we consider whether the 

drilling would be close enough in time that the additional wells would impact one 

individual over his or her lifetime living at the same location—that is, a location where a 

first well was drilled just outside the setback distance. This reference to wells being 

drilled “close in time” is taken from the Board’s discussion of the Multi-Well Health Risk 

Assessment’s assumption about multiple wells “drilled not only in close proximity to a 

single sensitive receptor but also close in time to each other in order that they would 

impact one individual over their lifetime living at the same location.” (Italics added.) 
64.

The Board also referred to sensitive receptor “exposed to the risks from drilling multiple 

wells over time.” 

The Multi-Well Health Risk Assessment made the conservative assumption that 

the wells would be drilled simultaneously, and stated it was unlikely to actually happen 

due to the large project area where wells might be drilled and the small number of drilling 

rigs operating in Kern County. However, the four to 12 drilling rigs reported to be active 

in Kern County does not preclude the drilling of the wells sequentially or at least close 

enough in time to impact one individual over his or her lifetime of living at that location. 

Consequently, we conclude the size of the project area and number of active drilling rigs 

is not sufficient by itself to support an implied finding that the drilling of additional wells 

near a sensitive receptor close in time to the drilling of a well just outside the applicable 

setback distance is not reasonably foreseeable.

Having eliminated the implied factual findings discussed above, we turn to the 

legal side of the mixed question of whether the SREIR’s discussion of cancer risks was 

sufficient or insufficient. The adequacy of the SREIR as an informational document 

depends upon whether that document serves its intended function of including sufficient 

detail to enable those who did not participate in its preparation to understand and consider 

meaningfully the issues raised by the project. (Sierra Club v. County of Fresno, supra, 6 

Cal.5th at p. 516.) In particular, we address whether the final SREIR provided a 

sufficient explanation of the Multi-Well Health Risk Assessment’s assumption that the 

sensitive receptors were surrounded by a 984.25-foot by 984.25-foot “fence” (i.e., 

setback). 

The final SREIR included a technical memorandum dated October 2020 that 

acknowledged the assumption “that the sensitive receptor had a 300m x 300m (or 

approximately 1,000 foot fence around it).” While acknowledging its use, the technical 

memorandum does not explain why the 984.25-foot (300 meter) setback distance was 

chosen and, moreover, does not acknowledge that the assumption created an excluded 
65.

zone when compared to the actual setback distances of 100, 210 and 300 feet adopted in 

the Revised Ordinance. We conclude the failure to explain why a 984.25-foot setback 

was assumed in the Multi-Well Health Risk Assessment when the setbacks in the Revised 

Ordinance were much smaller rendered the SREIR’s discussion insufficient for purposes 

of CEQA because it precluded a meaningful understanding of the cancer risks created by 

the setbacks actually adopted. 

In reaching the conclusion that the SREIR did not provide an adequate discussion 

of the project’s cancer risk, we have considered whether the scenario of 48 

simultaneously drilled wells used in the Multi-Well Health Risk Assessment is an 

appropriate substitute for an analysis that, in contrast, does not create an excluded zone 

over an eighth of a mile wide.19 We conclude the information provided does not allow 

the public or decision makers reading the SREIR to meaningfully understand how the 

analysis of a scenario with the excluded zone is a logical substitute to an analysis without 

an excluded zone. Perhaps the conservative assumptions about other factors offset the 

reduction in cancer risk resulting from the overly large setback distance of 984.25 feet. 

But, maybe not. The critical point is that, someone reading the SREIR would not develop 

a meaningful understanding of the cancer risk resulting from a well being drilled just 

outside the 210-foot setback and other reasonably foreseeable wells drilled nearby. The 

repeated statements about conservative assumptions on other parameters do not rationally 

explain why the unrealistically large setback distance of 984.25 feet and the resulting 

creation of an excluded zone was appropriate or, alternatively, was harmless error. 

In Sierra Watch, supra, 69 Cal.App.5th 86, the court was able to determine “the 

EIR fell short with this arbitrary line drawing.” (Id. at p. 107.) Here, we lack sufficient 

information to go that far. But, from the opposite point of view, we also lack sufficient 

19 984.25 feet minus 210 feet is 664.25 feet, which is more than 660 feet (i.e., 5,280 

feet per mile divided by eight). 
66.

information to determine that the line drawn 984.25 feet from a sensitive receptor was not 

arbitrary in light of the setback distances set forth in the Revised Ordinance. The lack of 

information for the latter determination means the SREIR contains an informational 

defect that must be corrected on remand. (See § 21005, subd. (a) [noncompliance with 

the information disclosure provisions of CEQA may constitute a prejudicial error].) 

We recognize that in Sierra Watch, supra, 69 Cal.App.5th 86, the court’s 

discussion of noise impacts addressed the issue from two perspectives. The first 

addressed whether the EIR’s noise impact discussion complied with CEQA. That 

discussion was sufficient to fulfill the court’s constitutional obligation to provide a 

decision “in writing with reasons stated.” (Cal. Const., art. VI, § 14.) The second 

separately addressed arguments raised by the real party in interest and explained why 

those arguments were unconvincing. (Sierra Watch, supra, at p. 107.) Here, we do not 

address the County’s arguments in the detail provided in Sierra Watch because we agree 

with Sierra Club that the County has advanced a straw man argument by stating Sierra 

Club’s attack is based on the premise “that the County must analyze a theoretical worstcase scenario—i.e., 48 wells located at the closest distance allowed by the Ordinance 

[citation] regardless of whether that scenario is reasonably foreseeable or likely.” Sierra 

Club’s papers clearly show that extreme scenario is not the foundation for its claims of 

error. 

Finally, we note that we are unable, as a court of review, to suggest the parameters 

or assumptions that should be plugged into the models in connection with another multiwell analysis prepared for the County after remand. Based on the standard adopted by 

our Supreme Court, we can reiterate that, among other things, the use of a setback 

distance in the models that is greater than the setback distances in the Revised Ordinance 

should be explained to enable members of the public “to understand and to consider 

meaningfully the issues raised by the proposed project.” (Laurel Heights I, supra, 47 

Cal.3d at p. 405; Sierra Club v. County of Fresno, supra, 6 Cal.5th at p. 516.) 
67.

V. WATER SUPPLY IMPACTS*

The parties dispute whether the SREIR’s analysis of water supply impacts and 

related mitigation measures complies with CEQA. In particular, Sierra Club contends the 

County failed to adequately analyze localized water supply conditions and impacts and 

unlawfully rejected proposed mitigation measures when it removed MM 4.17-5 based on 

a legal error involving social and economic impacts. 

A. Background

1. Water Code Provisions

Context for the parties’ dispute about the proper analysis of water supply impacts 

and related mitigation measures is established by various provisions in the Water Code 

addressing groundwater. These provisions are part of the “Regulatory Setting” addressed 

in section 4.9.3 of the SREIR. 

The Legislature has stated an established policy of California is “that every human 

being has the right to safe, clean, affordable and accessible water adequate for human 

consumption, cooking, and sanitary purposes.” (Wat. Code, § 106.3, subd. (a); Stats. 

2012, ch. 524 § 1.)

In 2009, the Legislature amended the Water Code to require the Department of 

Water Resources (DWR) to implement a California statewide groundwater elevation 

monitoring (CASGEM) program. (Stats. 2009-2010, 7th Ex.Sess., ch. 1, § 1; see Wat. 

Code, §§ 10920–10936.) The Legislature intended “that on or before January 1, 2012, 

groundwater elevations in all groundwater basins and subbasins be regularly and 

systematically monitored locally and that the resulting groundwater information be made 

readily and widely available.” (Wat. Code, § 10920, subd. (a).) The SREIR stated that 

the CASGEM program collects data on groundwater levels and use for 515 designated 

* See footnote, ante, page 1.
68.

basins in the state, including the Kern County subbasin that underlies most of the project 

area. 

In 2014, the Legislature adopted the Sustainable Groundwater Management Act 

(SGMA; Wat. Code, § 10720 et seq.) to provide for sustainable management of 

groundwater basins, to enhance local management of groundwater consistent with the 

rights to use and store groundwater, to preserve the security of water rights to the greatest 

extent possible consistent with sustainable management of groundwater, to provide local 

groundwater agencies with the authority and assistance necessary to sustainably manage 

groundwater, to avoid or minimize subsidence, to improve data collection and 

understanding of groundwater, to increase groundwater storage, and to remove 

impediments to recharge. (Wat. Code, § 10720.1.) SMGA “will not be fully 

implemented for several years, allowing groundwater overdraft to continue in some 

regions.” (Wat. Code, former § 13807, subd. (b).) The SREIR states that to achieve its 

objectives, the SGMA empowers local agencies to form groundwater sustainability 

agencies (GSA’s) to manage basins and requires the GSA’s to adopt groundwater 

sustainability plans (GSP’s). 

SMGA required the Kern County subbasin to be managed under a GSP, or a 

coordinated set of plans, by January 31, 2020, because the subbasin had been designated 

as high or medium priority under the CASGEM program and was subject to critical 

overdraft conditions. (King & Gardiner, supra, 45 Cal.App.5th at p. 840–841.)20 The 

Kern County subbasin is being managed under a coordination agreement among 11 

GSA’s implementing five GSP’s and 15 management area plans to attain SGMA’s goals 

20 In 2017, the Legislature added Water Code former sections 13807 through 

13808.8 to address new wells in critically overdrafted groundwater basins, which 

includes the project area. (Stats. 2017, ch. 538, § 1, pp. 4053–4055.) Among other 

things, the legislation (1) required applicants for new wells in such basins to include 

information about the proposed well in their permit applications and (2) made that 

information available to the public and GSA’s. (Wat. Code, former §§ 13808, 13808.2.)
69.

by 2040. These plans are based on adaptive management principles and, the SREIR 

states it is virtually certain that the nature and extent of SGMA projects used in the 

project area will be modified significantly during the five-year reviews of the plans, 

during the 20-year SGMA compliance period, and during SGMA’s 50-year planning and 

implementation horizon. 

2. 2020 Opinion

In King & Gardiner, supra, 45 Cal.App.5th 814, Lions Farming contended CEQA 

required the EIR to analyze water supply impacts to the extent reasonably possible and 

the EIR failed to meet this standard because it only analyzed water supply impacts at a 

regional level and, without adequate justification, disregarded local impacts. (Id. at p. 

838.) The County responded by arguing the EIR met the applicable standard by 

performing a detailed, systematic analysis of water supply impacts within three separate 

subareas using the best available data. The County argued a more localized analysis was 

not required by CEQA because of (1) the technical challenges in using more 

geographically specific area and (2) the many uncertainties in forecasting long term use 

at the local level, some of which stemmed from how SMGA, which was new, would be 

implemented. 

In the 2020 opinion, we concluded (1) the EIR, at the time it was circulated, did 

not violate CEQA’s requirement for an analysis of water supply impacts to the extent 

reasonably possible; (2) the EIR’s discussion of mitigation measures for the project’s 

significant impacts to water supplies was inadequate; and (3) the analysis of water supply 

in a revised EIR must be brought up to date. (King & Gardiner, supra, 45 Cal.App.5th at 

pp. 845–846 and fn. 15.) We also stated: “Whether the updated information will warrant 

an analysis of impact[s] to water supplies at a level other than the subareas used in the 

original EIR is a question that must be decided in the first instance by the County in its 

role as lead agency.” (Id. at p. 846, fn. 15.) 
70.

3. October 2020 Draft SREIR

The draft SREIR of October 2020 stated that (1) the demand for municipal and 

industrial (M&I) water from oil and gas activity was projected to increase about 2,982 

acre-feet per year (AFY) from 2012 to 2035; (2) there is no surplus M&I water in the 

project area; (3) new uses of M&I water would increase the regional groundwater 

shortfall if supplied by groundwater extraction; and (4) increasing M&I water demand 

under overdraft conditions would contribute to a significant cumulative water supply 

impact in the project area. It also stated it was not feasible to implement mitigation 

measures (1) directly curtailing oil and gas activities to reduce water demand or (2) 

indirectly curtailing other activities (such as agriculture) to reduce water demand. 

On the subject of groundwater supplies, the draft SREIR stated that such “supplies 

exist in specific basins.” It also stated that such supplies do not exist in localized pockets 

of subbasins where a local water district controls all the water. As a result, the draft 

SREIR concluded that the three subareas it adopted for other purposes were appropriate 

for analyzing groundwater supply. It also stated the Kern County subbasin that underlies 

most of the project area has been designated by the DWR as high-priority and critically 

overdrafted. 

The draft SREIR noted that, under SGMA, GSA’s in the project area are the 

exclusive local agencies for implementing SGMA in accordance with duly adopted 

GSP’s and management area plans. It also stated (1) most GSP’s and management area 

plans include water supply and demand projections over a 50-year planning and 

implementation horizon and (2) none of the adopted GSP’s or management area plans 

within the project area identify oil and gas operations as a significant factor affecting the 

achievement of the SGMA objectives. Based on this and other aspects of the plans, the 

SREIR stated the review of the plans did not provide any new information indicating the 

water supply or other SGMA-related impacts, including water quality, would be greater 

in magnitude or scope than previously considered. 
71.

Among the mitigation measures discussed in the draft SREIR was the possibility 

that “produced water” from oil and gas activities could be used elsewhere and, thus, 

would have a positive impact on the water supply. “Produced water is groundwater that 

naturally occurs in oil and gas reservoirs, is brought to the surface with the extracted oil 

and gas, and is separated from the hydrocarbons after extraction.” (King & Gardiner, 

supra, 45 Cal.App.5th at p. 840.) Produced water usually is poor quality water unsuited 

for agricultural, residential, commercial or industrial uses without substantial treatment to 

remove contaminants. (Ibid.) The draft SREIR concluded that, based on current 

technological and economic restraints, the available evidence did not show that produced 

water would continue to be utilized or that expanded produced water reuse would occur 

in the project area in predictable volumes over time. Thus, a mitigation measure 

requiring additional use of produced water was rejected as infeasible. 

The draft SREIR included three mitigation measures addressing groundwater 

supply. MM 4.17-3 provides that permit applicants may use groundwater only from 

wells equipped with a water meter and requires permit applications to include estimates 

of the source and use of groundwater along with the source and estimated use of 

reclaimed water. The County will compile the water use information, post it online each 

year, and send a copy to all GSA’s and the Kern County Water Agency. 

MM 4.17-4 applies to oil and gas activities that fall outside the Revised 

Ordinance’s streamlined permitting process and, thus, require conditional use permits. It 

provides: “Public Notices of all Conditional Use Permits for oil and gas activities shall 

be sent to appropriate Water Districts, Groundwater Authorities, and the Kern County 

Water Agency for review and comment on water availability and usage.” 

MM 4.17-5 required permit applicants to pay a fee of $50 or $250 per well, 

depending on whether they are subject to minor activity review or oil and gas conformity 

review. The fees were to be deposited into a grant fund to be implemented and 

administered by Kern County Public Health. The grants were to be available for projects 
72.

in disadvantaged communities in the valley portion of Kern County that involved the 

design, permitting, and construction of physical improvements to water wells or water 

systems serving an identified disadvantaged community. 

The draft SREIR noted that Water Code section 10723.2 requires GSA’s to 

consider the interests of all beneficial uses and users of groundwater in developing and 

implementing GSP’s and management area plans. The statutory list of such users 

includes domestic well owners, municipal well operators, public water systems, 

disadvantaged communities, and others. (Wat. Code, § 10723.2, subds. (a)(2), (b), (c), 

(i).) Disadvantaged communities include, but are not limited to, “those served by private 

domestic wells or small community water systems.” (Wat. Code, § 10723.2, subd. (i).)21 

Despite SGMA’s requirement that the interests of all beneficial users be considered, the 

draft SREIR stated there was substantial evidence that disadvantaged communities’ 

interest in groundwater supplies had not been sufficiently considered in the development 

and implementation of GSA’s and management area plans. The draft SREIR concluded 

that project M&I water use would contribute to a cumulatively significant impact on 

disadvantaged communities that use groundwater but are not adequately considered in the 

plans adopted under SGMA in the project area. It stated the funds collected under MM 

4.17-5 would mitigate the project’s fair share of cumulative impacts to disadvantaged 

communities that are insufficiently considered in the existing SGMA process. 

21 Section 21080.47, subdivision (a)(2) states: “ ‘Disadvantaged community’ means 

a community with an annual median household income that is less than 80 percent of the 

statewide annual median household income.” Section 21080.47 provides an exemption 

from CEQA requirements for projects consisting solely of the installation, repair, or 

reconstruction of water infrastructure that primarily benefits a small disadvantaged 

community water system or a state small water system. (Legis. Counsel’s Dig., Sen. Bill 

No. 974, (2019–2020 Reg. Sess.).
73.

4. Comments, Reponses and Briefing

Sierra Club’s September 2020 comment letter asserted the draft SREIR’s analysis 

of water supply mitigation measures did not comply with CEQA. Sierra Club contended 

the County (1) improperly relied on SGMA to relieve itself of the duty under CEQA to 

mitigate impacts; (2) failed to consider the obvious mitigation measure of limited oil and 

gas drilling or provide any evidence for finding measures that reduced drilling were 

infeasible; and (3) ignored many potential mitigation measures that were feasible and 

easily accessible. These other mitigation measures included water demand reduction 

measures outside the oil and gas industry, such as land purchases and incentive programs 

to fallow land or convert to less water-demanding crops. Sierra Club argued demandreduction measures were within the County’s power and would ameliorate some of the 

project’s most harmful and inequitable water supply impacts, such as contributing to 

domestic wells in disadvantaged communities going dry. 

In January 2021, the County released its responses to the comments. Among other 

things, the County stated that the SREIR provided a thorough analysis of potential water 

supply mitigation measures, provided substantial evidence supporting findings that 

certain measures could not be feasibly implemented or would not predictably reduce 

water supply impacts, and required three water supply mitigation measures to be 

implemented. The responses and other revisions to the draft SREIR are part of the final 

SREIR. 

In March 2021, Sierra Club sent a letter to the Board asserting the final SREIR 

contained legal flaws and the proposed findings of fact and statement of overriding 

considerations were legally inadequate. Addressing water supply impacts, the letter 

stated the County had not adopted or adequately considered feasible mitigation measures. 

In particular, Sierra Club asserted (1) MM 4.17-5 was an unlawful fair-share fee, (2) the 

SREIR failed to adequately describe the cumulative water supply impacts on 
74.

disadvantaged communities, and (3) the SREIR failed to adequately describe the water 

supply baseline in disadvantaged communities. 

At a September 2021 case management conference, the superior court set forth a 

briefing schedule for the challenges to the final SREIR. In November 2021, Sierra Club 

filed an opening brief asserting the challenges raised in its March 2021 letter. The 

County’s opposition asserted, among other things, that the SREIR provided valuable 

mitigation of impacts unique to disadvantaged communities even though CEQA does not 

require a separate analysis of effects on minority, low-income, or disadvantaged 

communities. The County describes the SREIR’s discussion of water supply impacts on 

disadvantaged communities as its voluntary (i.e., not required by CEQA) consideration of 

a social effect and any defects in its voluntary discussion could not constitute prejudicial 

error. 

5. Superior Court’s Ruling

The superior court’s June 7, 2022, ruling on the petitions for a third writ of 

mandate addressed the adequacy of the SREIR’s analysis and mitigation of water supply 

impacts. The court considered the arguments concerning impacts to disadvantaged 

communities, concluded the SREIR’s analysis failed to comply with CEQA, and 

explained: “While the County is correct that there is no requirement in CEQA to perform 

an analysis of impacts to low-income or disadvantaged communities, once the County 

committed to the analysis and imposed a mitigation fee to fund improvements to drinking 

water wells or systems that serve [disadvantaged communities], it had an obligation to 

make sure that its analysis and findings complied with the requirements of CEQA.” The 

court concluded that the SREIR violated CEQA by disclosing nothing about baseline 

water supply conditions in disadvantaged communities and disclosing nothing about the 

nature or magnitude of impacts to disadvantaged communities. One of the issues 

addressed in this appeal is whether, in the context of this case, the statement that “there is 
75.

no requirement in CEQA to perform an analysis of impacts to low-income or 

disadvantaged communities” is an accurate statement of law. 

6. August 2022 Addendum to the SREIR

After receiving the superior court’s ruling, the County decided to delete MM 4.17-

5. The August 2022 addendum to the SREIR stated MM 4.17-5 had been “included in 

the SREIR based on analysis of potential impacts to disadvantaged community water 

supplies.” The measure imposed a fee ($50 or $250) on permit applicants that would be 

used “to fund assistance for water supplies, including bottled water and water well or 

water system improvements serving disadvantaged communities in the Valley portion of 

the County.” The addendum explained the County’s decision to delete MM 4.17-5 by 

stating that “there is no requirement in CEQA to perform an analysis or provide 

mitigation for impacts to low-income or disadvantaged communities (see, e.g., Court 

Ruling at 19). The Board ... proposes to delete MM 4.17-5 from the SREIR and the 

MMRP to comply with the Court Ruling and CEQA.” In place of MM 4.17-5, the Board 

approved the Voluntary Disadvantaged Community Drinking Water Grant Fund Pilot 

Program that would be funded by voluntary, nonrefundable contributions from permit 

applicants. 

7. Discharge Order

In November 2022, the superior court issued an order discharging the Third Writ. 

The order did not mention the August 2022 addendum or the objections made to its use, 

but the order’s general finding that the County had satisfied the Third Writ in all respects 

implies the court determined the addendum and the removal of MM 4.17-5 complied with 

CEQA. 

B. Environmental Impact or Socioeconomic Change

The first water supply issue we address is raised by Sierra Club’s argument that 

the County’s justification for eliminating MM 4.17-5 an erroneous insistence that water 
76.

supply impacts in disadvantaged communities were not environmental impacts and, thus, 

did not need to be analyzed or mitigated to comply with CEQA. In response, the County 

recognizes that “water supply impacts to Project area residents as a whole are impacts 

cognizable under CEQA” and contends the superior court “correctly confirmed ‘there is 

no requirement in CEQA to perform an analysis of impacts to low-income or 

disadvantaged communities.’ ” The County reiterates the argument that its initial 

decision to discuss disadvantaged communities did not create a new obligation under 

CEQA and any defect in that discussion could not be prejudicial error. 

The issue presented by the County’s approach to water supply impacts 

experienced by disadvantaged communities can be restated broadly as whether the 

County abused its discretion by failing to “proceed[] in a manner required by law.” 

(§ 21168.5.) Whether the County followed applicable law is a question subject to 

independent judicial review. (King & Gardiner, supra, 45 Cal.App.5th at p. 838.) Our 

independent review begins with an overview of the provisions in CEQA and the 

Guidelines defining environmental impacts and the role of social and economic impacts. 

1. CEQA’s Approach to Economic and Social Changes

CEQA was designed to provide long term protection to the environment. 

(Mountain Lion Foundation v. Fish & Game Com., supra, 16 Cal.4th at p. 112.) CEQA 

defines the “environment” as the physical conditions that exist in the project area. 

(§ 21060.5.) “ ‘Significant effect on the environment’ means a substantial, or potentially 

substantial, adverse change in the environment.” (§ 21068.) Economic and social 

changes usually do not alter the physical conditions constituting the environment and, 

thus, do not qualify as significant effects on the environment. (Friends of Davis v. City of 

Davis (2000) 83 Cal.App.4th 1004, 1019.) Accordingly, CEQA’s definition of 

substantial evidence relevant to whether a project might cause a significant effect on the 

environment expressly excludes “evidence of social or economic impacts that do not 
77.

contribute to, or are not caused by, physical impacts on the environment.” (§ 21080, 

subd. (e)(2); see Guidelines, §§ 15064, subd. (f)(6) & 15384, subd. (a) [definition of 

substantial evidence].) Eliminating the double negative from the definition produces the 

statement that substantial evidence may include “evidence of social or economic impacts 

that ... contribute to, or are ... caused by[] physical impacts on the environment.” 

(§ 21080, subd. (e)(2).) 

The use of the disjunctive “or” in this statement indicates there are two situations 

in which social or economic impacts are relevant evidence for purposes of CEQA. Those 

situations are described in the second and third principles set forth in Guidelines section 

15064, subdivision (e). The first principle, which reflects CEQA’s definitions and case 

law, provides that “[e]conomic and social changes resulting from a project shall not be 

treated as significant effects on the environment.” (Guidelines, § 15064, subd. (e); 

County of Butte v. Dept. of Water Resources (2023) 90 Cal.App.5th 147, 174 [“an 

economic effect in itself is not a significant effect on the environment”].) For example, 

the claim by neighboring landowners that a proposed project could adversely affect their 

property values involves an economic impact that is not recognized as an environmental 

impact under CEQA. (Porterville Citizens for Responsible Hillside Development v. City 

of Porterville (2007) 157 Cal.App.4th 885, 903.)

The second principle provides that, “[w]here a physical change is caused by 

economic or social effects of a project, the physical change may be regarded as a 

significant effect in the same manner as any other physical change resulting from the 

project.” (Guidelines, § 15064, subd. (e), italics added; e.g., Citizens Assn. for Sensible 

Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 170–171 

[county required to consider whether proposed regional shopping center would put 

downtown stores out of business and cause physical deterioration of the downtown 

area].) In such a situation, the economic or social impact is an intermediate link in the 

chain of events causing an environmental impact. (See Make UC A Good Neighbor v. 
78.

Regents of University of California (2023) 88 Cal.App.5th 656, 693.) In the present case, 

there is no claim that changes to the physical environment will be caused by the 

economic or social effects resulting from the project causing lower levels of groundwater 

in disadvantaged communities or elsewhere. 

The third principle, which applies in this appeal, provides that “economic and 

social effects of a physical change may be used to determine that the physical change is a 

significant effect on the environment.” (Guidelines, § 15064, subd. (e).) Thus, adverse 

economic or social effects on people may be used as a factor in determining whether the 

physical change that caused the economic or social changes is significant. (Ibid.; 

Guidelines, § 15382.) “For example, if a project would cause overcrowding of a public 

facility and the overcrowding causes an adverse effect on people, the overcrowding 

would be regarded as a significant effect.” (Guidelines, § 15064, subd. (e).) 

2. Application of Principles

There are four basic steps in our analysis of the project’s impact on groundwater 

supply and the significance of that impact. First, the use of groundwater in the project 

area contributes to the lowering of the groundwater levels. Therefore, the project’s oil 

and gas activities that use groundwater will contribute to lower groundwater levels in the 

project area. This lowering of groundwater levels qualifies as a change in “the physical 

conditions which exist in the project area” and, therefore, is a change in the 

“environment.” (§ 21060.5) 

Second, simply saying that groundwater levels will be lowered in the project area 

does not fully describe the environmental impact because there also will be a physical 

impact on groundwater wells in the project area. The lowering of the water level in such 

wells qualifies as a change in the environment for purposes of CEQA because the 

definition of “ ‘environment’ includes both natural and man-made conditions.” 

(Guidelines, § 15360.) Groundwater wells are a man-made condition and, therefore, 
79.

they are part of the environment protected by CEQA. Thus, a proper analysis of the 

project’s environmental impacts includes the more specific impact of lower water levels 

in groundwater wells. (See Gray v. County of Madera (2008) 167 Cal.App.4th 1099, 

1112 [decline in water levels in private wells adjacent to proposed quarry project a 

potentially significant impact] (Gray).) 

Third, lower water levels in groundwater wells might physically impact the people 

and communities that rely on those wells for water. We use the word “might” because of 

the following possibilities. First, where a well is deep relative to the groundwater level 

and there is plenty of water available for existing uses, there would be no discernable 

immediate physical impact on the users. Second, where a well is not deep relative to the 

groundwater level, the lower groundwater level might reduce the amount of water 

available for use to the point where those who rely on the well do not have enough 

available well water for existing uses. (See Gray, supra, 167 Cal.App.4th at p. 1112 

[decline in pumping rates in adjacent private wells a potentially significant impact].) 

Such groundwater wells could be referred to as partially or fully dewatered. Thus, the 

third step seeks to distinguish between the two possibilities and identify where lower 

water levels in groundwater wells has “effects on human beings, either directly or 

indirectly.” (§ 21083, subd. (b)(3).) For example, the lower groundwater levels in the 

wells could have effects on human beings because they would have to obtain water from 

a different source, reduce usage, or a combination of the two. Thus, the third step looks 

beyond the impact on the well itself and considers whether the lowering of the water 

level in the well impacts the human beings who use the well.

Fourth, with the impacts on groundwater levels, groundwater wells, and human 

beings identified, the lead agency is required to find whether or not those impacts qualify 

as a “ ‘significant effect on the environment’ ” for purposes of CEQA. (§ 21083, subd. 

(b).) This inquiry into significance includes determining whether the direct or indirect 

impacts on human beings are “adverse” and “substantial.” (§ 21083, subd. (b)(3).) 
80.

Appendix G of the Guidelines mandates a finding in response to the issue: “Does the 

project have environmental effects which will cause substantial adverse effects on human 

beings, either directly or indirectly?” (Guidelines, Appendix G, XXI, subd. (c).) The 

answers listed in the appendix are (1) potentially significant impact, (2) less than 

significant with mitigation incorporated, (3) less that significant impact, and (4) no 

impact. (Ibid.) As described in part V.B.1., ante, the determination of whether an 

environmental impact is significant takes into account the social and economic impacts 

caused by that environmental impact. Because the social and economic effects of the 

physical impact of having less groundwater available may vary from area to area or 

community to community based on socioeconomic conditions, it necessarily follows that 

the severity (i.e., degree of significance) of a reduction in available well water also may 

vary from area to area or community to community even where the physical reduction in 

available water per person is essentially the same. It also follows that a particular 

mitigation measure might be more effective at reducing the significance of the 

environmental impact in some communities where the significance or severity is greater 

than in communities where the significance of a similar or nearly equivalent 

environmental impact is less severe.

Based on the foregoing, we conclude the superior court’s statement that “there is 

no requirement in CEQA to perform an analysis of impacts to low-income or 

disadvantaged communities” contains legal error. Physical impacts to groundwater levels 

and the related physical impact of dewatering of groundwater wells cannot be ignored 

simply because some or all of those environmental impacts occur in low-income or 

disadvantaged communities. Furthermore, the analysis of the significance of the 

environmental impact of dewatering wells across the entire range of affected 

communities that rely on such wells should not exclude social or economic factors 

because those factors are relevant to determining the significance of the physical impact. 

As a result, the significance of the physical impact may vary from community to 
81.

community because of social or economic impacts experienced by a particular 

community. (Guidelines, § 15064, subd. (e) [adverse economic or social effects on 

people are relevant to determining whether a physical change is significant].)

Accordingly, the County failed to “proceed[] in a manner required by law” 

(§ 21168.5) when it decided to delete MM 4.17-5 on the ground that “there is no 

requirement in CEQA to perform an analysis or provide mitigation for impacts to lowincome or disadvantaged communities.” Similarly, on appeal, the County argues that 

CEQA does not require an analysis unique to a particular socioeconomic class. This 

argument is inaccurate to the extent it contradicts the principle that social and economic 

effects play a role in determining the significance of an environmental impact (see 

Guidelines, § 15064, subd. (e)) and the significance of an environmental impact may be 

greater to human beings who experience adverse social or economic effects. 

The administrative record contains substantial evidence supporting a fair argument 

that groundwater wells in the project area have been and continue to be at risk for 

dewatering and, therefore, will be impacted by the project’s contribution to a cumulative 

impact. Therefore, any subsequent EIR seeking to correct the defects in the SREIR 

should address that evidence along with Sierra Club’s argument that information about 

baseline water supply conditions in disadvantaged communities and the nature or 

magnitude of the impacts to those communities is readily available. However, in 

accordance with the principles described above, an analysis of localized impacts on 

groundwater wells should not be limited to disadvantaged communities. Instead, the 

communities’ socioeconomic status should be taken into account only when determining 

the significance of the physical impact or identifying mitigation measures to lessen the 

significance. To the extent that such an analysis is limited by available evidence, the 

County should explain those limitations and why the discussion it provides has analyzed 

the issues of physical impact and significance (which includes social and economic 
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impacts) “ ‘to the extent reasonably possible.’ ” (King & Gardiner, supra, 45

Cal.App.5th at p. 843.) 

C. Fee Payment as a Mitigation Measure

Sierra Club contends the County violated CEQA by rejecting proposed water 

supply mitigation measures. In particular, it argues the County removed MM 4.17-5 

based on an erroneous legal determination and the County’s reasons for declining to pay 

GSA’s a fair-share fee are legally erroneous. In response, the County argues (1) it 

properly removed MM 4.17-5, (2) CEQA and case law do not require fee payments to 

other agencies with exclusive responsibility for funding and undertaking actions, and (3) 

CEQA does not require fee payments to other agencies if such fees will not result in 

actual mitigation.

1. Removal of MM 4.17-5

The removal of MM 4.17-5 was justified, in the County’s view, because “impacts 

particular to a socioeconomic class are not cognizable under CEQA” and the measure, as 

explained in the County’s revised findings, “went beyond CEQA’s requirements by 

attempting to address a socioeconomic impact.” The County also asserts that it 

“concluded there was no feasible way to assess impacts to a particular socioeconomic 

group.” 

First, as described in part V.B., ante, the County’s argument that impacts to a 

socioeconomic class are not cognizable under CEQA is off point. The applicable rule of 

law provides that social and economic effects are relevant to determining the significance 

of a change in physical conditions (i.e., an environmental impact), such as the lowering of 

groundwater levels in wells. 

Second, the contention that MM 4.17-5 went beyond CEQA’s requirements by 

attempting to address a socioeconomic impact also misapplies the principles established 

by CEQA and the Guidelines for addressing social and economic effects. The proper 
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characterization of MM 4.17-5 is that it attempted to reduce the significance of the 

cumulative impact to which the project will contribute. An attempt to reduce the 

significance of an environmental impact by reducing the social or economic effects 

caused by the environmental impact is distinguishable under CEQA from attempting to 

reduce social or economic impacts that are not caused by the project’s effects on the 

environment. This distinction is overlooked, rather than acknowledged, by the County’s 

arguments.

Third, the County’s references to the record do not establish that its 

decisionmaker, the Board, actually found or concluded there was no feasible way to 

access impacts to a particular socioeconomic group. More importantly, this contention 

(like the first two reasons for removing MM 4.17-5) is based on a skewed view of 

CEQA’s principles for addressing social and economic effects in determining the 

significance of the lowering of groundwater levels in wells. This legal error undermines 

any purported finding of infeasibility.

Consequently, the County’s rationale for removing MM 4.17-5 do not comply 

with CEQA and, therefore, constitutes an abuse of discretion for purposes of section 

21168.5. 

2. Fee Payment Program

Under section 21081, subdivision (a)(2), a lead agency is not required to undertake 

mitigation measures if the agency finds that the measures “are within the responsibility 

and jurisdiction of another public agency and have been, or can and should be, adopted 

by that other agency.” A finding disclaiming the responsibility to mitigate significant 

“environmental effects is permissible only when the other agency said to have 

responsibility has exclusive responsibility.” (City of Marina v. Board of Trustees of 

California State University (2006) 39 Cal.4th 341, 366 (Marina); see Guidelines, 

§ 15091, subd. (c).) 
84.

Here, the County contends CEQA does not require it to impose a fair-share fee on 

permit applicants because the GSA’s have exclusive responsibility for mitigating the 

environmental effects of declining groundwater levels. To support this contention, the 

County cites Water Code sections 10723.8, subdivision (d) and 10730.2. Under these 

provisions, the County asserts that “there is no question that the GSAs have independent 

authority to pursue a fair-share fee if one is deemed necessary to implement SGMA.” As 

explained below, we agree GSA’s have the authority to impose fair-share fees, but 

conclude that authority is not an exclusive responsibility.

Our analysis of the Water Code provisions and whether GSA’s have exclusive 

responsibility for purposes of section 21081, subdivision (a)(2), begins with the definition 

of a GSA because that definition mentions fees. Water Code section 10721, subdivision 

(j) states: 

“ ‘Groundwater sustainability agency’ means one or more local agencies 

that implement the provisions of this part. For purposes of imposing fees

pursuant to Chapter 8 (commencing with Section 10730) or taking action to 

enforce a groundwater sustainability plan, “groundwater sustainability 

agency” also means each local agency comprising the groundwater 

sustainability agency if the plan authorizes separate agency action.” (Italics 

added.) 

Water Code section 10723.8, subdivision (a) provides that when a local agency or 

combination of local agencies decide to form a GSA, it shall notify the DWR “of its 

decision and its intent to undertake sustainable groundwater management.” Subdivision 

(d) of that section provides that “after the decision to be a groundwater sustainability 

agency takes effect, the groundwater sustainability agency shall be presumed to be the 

exclusive sustainability agency within the area ... described in the notice.” (Wat. Code, 

§ 10723.8, subd. (d), italics added.) This provision identifies the entity that is the one and 

only GSA for a particular area, but it does not identify what actions are exclusively the 

responsibility of a GSA. 
85.

The powers and authorities of a GSA are set forth in a Water Code chapter 

containing sections 10725 through 10726.9. The County has not cited any of these 

sections in support of its argument that GSA’s have exclusive authority over the 

imposition of fair-share fees. We have located nothing within those sections stating that 

fair-share fees are the exclusive province of GSA’s or, alternatively, that other 

governmental entities are precluded from requiring a fair-share fee to be paid to the GSA. 

We note that Water Code section 10726.8, subdivision (f) provides: “Nothing in this 

chapter or a groundwater sustainability plan shall be interpreted as superseding the land 

use authority of cities and counties, including the city or county general plan, within the 

overlying basin.” This provision does not support the view that SGMA placed exclusive 

responsibility for imposing fair-share fees on the GSA and took any such authority away 

from counties. Therefore, we conclude Water Code sections 10725 through 10726.9 do 

not grant GSA’s exclusive authority for fair-share fees related to groundwater use.

Next, we consider the provision in SGMA that addresses the authority of a GSA to 

impose fees. Water Code section 10730, subdivision (a) states that a GSA “may impose 

fees, including, but not limited to, permit fees and fees on groundwater extraction or 

other regulated activity, to fund the costs of a groundwater sustainability program ....” 

Water Code section 15 states that “ ‘may’ is permissive.” Therefore, we conclude the 

authority granted to a GSA to impose fees is discretionary. The wording in Water Code 

section 10730 does not support the inference that this discretionary authority also is an 

exclusive responsibility. Furthermore, the County has cited no case addressing the issue 

of exclusive responsibility for imposing fees and no legislative history. Consequently, 

we conclude the County’s responsibility to adopt mitigation measures in compliance with 

CEQA includes the authority to impose a fair-share fee. In other words, the Water Code 

did not take that authority away from counties and vest it entirely with GSA’s. 

Therefore, like the Supreme Court in Marina, we conclude that if the County cannot 

adequately mitigate the project’s contribution to declining groundwater levels, then 
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requiring permit applicants to pay a fair-share fee to the relevant GSA “may well 

represent a feasible mitigation.” (Marina, supra, 39 Cal.4th at p. 367.) 

The County argues that CEQA does not require the payment of fees to other 

agencies, such as GSA’s, if such fees will not result in actual mitigation. It contends 

there is substantial evidence in the SREIR that the effectiveness, technological feasibility, 

and cost of implementing GSP’s in the project area is uncertain and there is no substantial 

evidence that GSP’s will result in any predictable amount of mitigation as they are 

adaptively managed over the coming decades. The problem with these arguments about 

substantial evidence is that they do not reference findings by the Board about the 

infeasibility of funding that the evidence supports. Section 21081 and Guidelines section 

15091 require findings, with a brief explanation of the underlying rationale, and the 

absences of such findings and explanation are not rendered harmless by determinations in 

the SREIR’s supported by substantial evidence. 

Accordingly, we will remand the issue of mitigation in the form of a fair-share fee 

paid to the local GSA or to the County for further consideration along with findings and 

the explanation of those findings in accordance with Guidelines section 15091. The 

County’s further consideration must take into account that Water Code section 10727.2, 

subdivision (d)(3) provides that a GSA shall include a component relating to the 

mitigation of the basin’s overdraft and the implication of a finding by the Board of 

infeasibility—that is, it is infeasible for GSA’s to fulfill their mitigation responsibility. 

Stated another way, if the Board makes an infeasibility finding on remand, that finding 

must be “for reasons other than those we have rejected.” (Marina, supra, 39 Cal.4th at p. 

369.) 

The County suggests the imposition of a fair-share fee would be inappropriate 

because of the possibility that a GSA might also impose a fee and, as a result, the permit 

applicant would be required to pay twice. This possibility does not establish a fair-share 

fee is infeasible because the County’s mitigation measure could be drafted to require 
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payment of the fee only if the GSA had not adopted one. The County also asserts that a 

fee may become inappropriate in the future if produced water becomes acceptable for

uses in agricultural and, as a result, the oil and gas industry become a net supplier of 

water. If that situation arises and the oil and gas activity authorized by the Revised 

Ordinance is no longer contributing to an adverse impact on water supplies, the County 

could amend the Revised Ordinance to eliminate the fee. 

VI. TEMBLOR LEGLESS LIZARD*

A. Background

1. 2015 EIR

Section 4.4 of the July 2015 draft EIR addressed the project’s impacts on 

biological resources and mitigation measures for those impacts. The biological resources 

included special status wildlife species,22 three of which were the silvery legless lizard 

(Anniella pulchra pulchra), the Bakersfield legless lizard (Annielle grinnelli), and the 

Temblor legless lizard (Anniella alexanderae). Legless lizards can be mistaken for 

snakes because of their elongated body and absence of limbs. Unlike snakes, they have 

movable eyelids and lack external ear openings. From snout to vent, the species’ length 

is 3.5 to 6.7 inches; with tail, their total length is around 8 inches. 

The EIR explained that in September 2013, the Anniella species was split into five 

species, the four newly described species had not had their status determined, and the 

silvery legless lizard had been a California species of special concern. The EIR 

addressed the unresolved status of the newly described species by treating them as special 

* See footnote, ante, page 1.

22 The 2015 EIR defined special status wildlife species as those listed as threatened 

or endangered by the United States Fish and Wildlife Service (USFWS) or the California 

Department of Fish and Wildlife (CDFW); designated as a species of special concern by 

CDFW; fully protected under state law; or that meet the definition of rare or endangered 

under Guidelines section 15380, subdivisions (b) and (d). 
88.

status. The EIR stated three species of legless lizards were expected to occur in the 

project area and discussed them together because information about the distribution of the 

new described species was limited. The habitat for the legless lizards was described as 

“[b]urrows in sandy or loose loamy soil and leaf litter of high moisture content under 

sparse vegetation, particularly in coastal dune and oak woodland habitats.” 

The EIR stated the Temblor legless lizard was differentiated from the other species 

by its ventral coloring and was known from two sites in areas of sandy soil at the 

southeast base of the Temblor Range. The two sites were separated by continuous habitat 

west of Highway 33. Notwithstanding the two known sites, the EIR listed the Temblor 

legless lizard as a Category 2 species23 and potential impacts were evaluated based on the 

potential occurrence in each project area tier and subarea. 

Habitat suitability models were used to evaluate the project’s potential impacts on 

legless lizards and other wildlife species. The results from the models address the 

potential impacts to habitat for the various species. The EIR stated that by modeling 

habitat impacts, the project’s effects could be quantified without knowing the actual 

occurrence of a species at a particular place. An advantage of this methodology is that 

habitat importance is based on relative quality instead of occupation levels, which 

fluctuate over time. The modeling predicted annual levels of disturbance to 0.40 percent 

of the legless lizard’s high quality habitat and 0.25 percent of its poor to moderate quality 

habitat. The EIR also estimated 25-year impacts to 9.9 percent of the legless lizard’s 

high quality habitat and 6.2 percent to its poor to moderate quality habitat. The EIR 

concluded: “These impacts would be significant without mitigation.” More generally, 

23 The 2015 EIR defines a Category 2 species as one “known or likely to occur in the 

Project Area for which modeling data was not available to quantify and analyze potential 

Project impacts.” In comparison, a Category 1 species (like the silvery legless lizard) is 

one “for which one of four types of habitat suitability modeling data was available and 

used to quantify and analyze potential Project impacts.” 
89.

the EIR concluded “potential impacts to special status plants and wildlife would be 

significant without mitigation.” 

The draft EIR set forth 20 mitigation measures for impacts to biological resources. 

MM 4.4-1 required special status wildlife surveys to be completed by a qualified 

biologist within 30 days before new ground disturbing construction activity began. MM 

4.4-3 provided for the use of exclusion barriers or buffers where they were deemed 

feasible by the qualified biologist. MM 4.4-14 required the development and 

implementation of a worker environmental awareness program for all personnel that 

could access a site prior to commencing disturbance activities. Personnel were required 

to sign a statement verifying completion of the awareness program and the permit 

applicants were required to keep training records for at least five years. The EIR 

concluded that, after mitigation, the impacts to special status species would be less than 

significant. 

2. Comment to Draft SREIR and the County’s Response

Sierra Club’s September 2020 comment letter to the draft SREIR (1) stated the 

2015 EIR did not fully evaluate impacts to the Bakersfield and Temblor legless lizards 

because the EIR claimed habitat modeling was unavailable and (2) asserted a recent study 

added new information about the species that allowed for habitat modeling. The study 

cited was commissioned by the California Department of Fish and Wildlife. (Parham, et 

al, Conservation Assessment of the California Legless Lizard (Aug. 16, 2019) (2019 

Parham Study).) The comment letter asserted the Temblor legless lizard “may be at 

particular risk due to its limited habitat, and the fact that the vast majority of its habitat is 

privately owned land.” The comment letter stated the draft SREIR must be updated to 

evaluate the potential harms to each species of legless lizard separately and to consider 

feasible mitigation measures, such as avoidance of legless lizard habitat. 
90.

County’s response No. 0009-112 noted the comment had cited the 2019 Parham 

Study and had asserted the study provided new information about the newly identified 

species of legless lizards and provided modeling for their habitat. The response rejected 

the comment’s claim that the SREIR must be updated to provide an additional discussion 

of the legless lizards. First, the response stated the defects that the 2020 opinion required 

to be corrected did not include any issues involving legless lizards. Second, the response 

concluded the comment did “not raise either substantial changes in circumstances or new

information requiring supplemental analysis under CEQA.” 

The response summarized the 2015 EIR’s approach to stating it (1) found the 

silvery, Bakersfield and Temblor legless lizards had the potential to occur within the 

project area; (2) little was known about the Bakersfield and Temblor legless lizards and 

they were conservatively assumed to be species of special status like the silvery legless 

lizard; (3) potential impacts to the three species were evaluated based on their potential 

occurrence in each tier and subarea of the project area; and (4) all three species were 

discussed together due to the limited distribution information available. 

The response acknowledged the 2019 Parham Study had expanded the ranges of 

the Temblor legless lizard and two other new species and noted the study did not indicate 

that habitat for any species within Kern County was outside the subareas or tiers 

identified in the 2015 EIR. The response disagreed with the comment’s assertion that 

some species of legless lizards may be disproportionately harmed due to the proximity of 

their habitat to oil and gas activity. The response concluded that, “[g]iven the limited 

information and need for further study identified in [the 2019 Parham Study], it remains 

appropriate to treat the legless lizard species together. 

The response also described the conservative assumption made in the 2015 EIR’s 

analysis of the three species of legless lizards. It noted the Bakersfield and Temblor 

legless lizards were classified as Category 2 species—that is, species “ ‘known or likely 

to occur in the Project Area for which modeling data is not available to quantify and 
91.

analyses potential Project impacts.’ ” Potential impacts on Category 2 (i.e., nonmodeled) 

species such as the Temblor legless lizard were conservatively assumed to occur “even in 

areas where there is an extremely low likelihood of species impact.” 

With respect to the mitigation measures, the response stated MM 4.4-3 has been 

clarified to state that the 30-foot buffer zone applied to all legless lizard species. The 

earlier version had referred to the silvery legless lizard. The response also described 

other mitigation measures that would benefit all legless lizards in the project area. 

B. Legal Principles Governing Additional CEQA Review

Sierra Club contends the County did not revise the SREIR’s discussion of impacts 

to the Temblor legless lizard and, as a result, violated CEQA’s requirements for 

subsequent or supplemental review contained in section 21166 and Guidelines section 

15162, subdivision (a). In response, the County contends it complied with CEQA 

because the requirement for additional environmental review does not apply to the facts 

of this case. Based on the way the parties have framed their arguments, we assume for 

purposes of this appeal that the question presented is properly framed as whether the 

County erred when it determined section 21166 and Guidelines section 15162, 

subdivision (a) did not require a more extensive environmental review of the impacts to 

the Temblor legless lizard.

24

 

Section 21166 provides in part:

“When an environmental impact report has been prepared for a project 

pursuant to [CEQA], no subsequent or supplemental environmental impact 

report shall be required by the lead agency ... unless one or more of the 

24 We note, however, that this case is not the typical situation where new information 

is learned by the lead agency after it has “certif[ied] the completion of” an EIR (§ 21100, 

subd. (a)) and that certification is in effect when the claim for additional review is 

presented to the lead agency. Here, the Board’s certification of the 2015 EIR was 

vacated before the 2019 Parham Study was presented to the County. Also, that new 

information was discussed in the SREIR and made available to the Board before it 

certified the SREIR as complete.
92.

following events occurs: [¶] ... [¶] (c) New information, which was not 

known and could not have been known at the time the environmental 

impact report was certified as complete, becomes available.”

Guidelines section 15162 explains when changes or new information trigger the 

need for additional environmental review by stating in part: 

“(a) When an EIR has been certified ..., no subsequent EIR shall be 

prepared for that project unless the lead agency determines, on the basis of 

substantial evidence in the light of the whole record, one or more of the 

following: [¶] ...[¶] 

“(2) Substantial changes occur with respect to the circumstances 

under which the project is undertaken which will require major revisions of 

the previous EIR ... due to the involvement of new significant 

environmental effects or a substantial increase in the severity of previously 

identified significant effects; or

“(3) New information of substantial importance, which was not 

known and could not have been known with the exercise of reasonable 

diligence at the time the previous EIR was certified as complete or the 

negative declaration was adopted, shows any of the following:

“(A) The project will have one or more significant effects not 

discussed in the previous EIR or negative declaration;

“(B) Significant effects previously examined will be substantially 

more severe than shown in the previous EIR.”

For practical purposes, the foregoing provisions create “a presumption against 

further environmental review after a project has been previously subjected to 

environmental review.” (Save Our Heritage Organisation v. City of San Diego (2018) 28 

Cal.App.5th 656, 666.) “[S]ection 21166 comes into play precisely because in-depth 

review has already occurred, the time for challenging the sufficiency of the original EIR 

has long since expired [citation], and the question is whether circumstances have changed 

enough to justify repeating a substantial portion of the process.” (Id. at pp. 666–667.) 

The County’s determination that, for purposes of section 21166, there was no new 

information of substantial importance and no substantial change in circumstances is 

reviewed for substantial evidence. (Citizens’ Committee to Complete the Refuge v. City 
93.

of Newark (2021) 74 Cal.App.5th 460, 470.) Sierra Club, as the party challenging the 

County’s determination, has the burden of demonstrating that the County’s decision is 

not supported by substantial evidence and, therefore, violates CEQA. (Ibid.) In applying 

the substantial evidence standard, our task is not to weigh conflicting evidence and 

determine who has the better argument. (Banning Ranch Conservancy v. City of Newport 

Beach (2017) 2 Cal.5th 918, 935.) 

Another principle of judicial review applicable to this appeal is that our review for 

substantial evidence is limited to the administrative record. Stated another way, we 

decide “only whether the administrative record as a whole demonstrates substantial 

evidence to support the determination that the changes in the project or its circumstances 

were not so substantial as to require major modifications of the EIR.” (Sierra Club v. 

County of Sonoma (1992) 6 Cal.App.4th 1307, 1318.) Guidelines section 15162, 

subdivision (a) refers to “substantial evidence in the light of the whole record” and this 

reference to the whole record means the administrative record before the lead agency 

when it made the decision that additional environmental review was not required. 

Accordingly, to the extent that the amicus curiae brief addressing the Temblor legless 

lizard refers to documents outside the administrative record, we have not considered 

those documents. 

C. Application of the Substantial Evidence Standard

Our analysis of whether new information or changed circumstances requires 

additional environmental review begins by identifying the new information relied upon 

by Sierra Club. Most of that information is contained in the 2019 Parham Study and the 

October 2020 petition to list the Temblor legless lizard as a threatened or endangered 

species under the federal Endangered Species Act (ESA; 16 U.S.C. § 1531 et seq.). Both 

of these documents are part of the administrative record. The claim of changed 
94.

circumstances overlaps with the new information because the changed circumstances are 

described by the new information about the Temblor legless lizard’s range and rarity. 

1. 2019 Parham Study

The 2019 Parham Study was generated to report the results of a four-year project 

whose main objective was to establish species range boundaries and evolutionary 

lineages for the newly described species of legless lizards. The project consisted of 

surveys and genetic and ecological analyses addressing the distribution of legless lizards 

and testing the validity of the newly described species. The field surveys were focused 

on new sites between the samples or known ranges described in a 2013 study. The 

project resulted in specimens for six species of legless lizards being collected from new 

localities and, thus, new range estimates were made for those six species. 

Appendix B to the 2019 Parham Study listed the survey sites checked for the 

presence of legless lizards and the collections, if any, from the site. Kern County 

contained 32 of the survey sites and seven of those sites resulted in 13 collections. Table 

2 reported that for all the sites included in the study, 27 specimens of Temblor legless 

lizards were obtained from seven unique locations. 

The 2019 Parham Study stated: “The most significant range extension involved 

[the Temblor legless lizard], which was previously known from one area east of the 

Temblor Mountains. We have extended its range as far north as Coalinga.” It also stated 

that most specimens of the Temblor legless lizard were found in alkali desert scrub or 

annual grasslands. The total range of the Temblor legless lizard was estimated at 

1,719.54 square kilometers (approximately 664 square miles) with only about 5.5 percent 

of this land being federal land or protected by the CDFW. The 2019 Parham Study 

describes the range as “narrow” and stated the predictive range maps generated by 

Ecological Niche Modeling had overpredicted the Temblor legless lizard range into areas 

that had been developed, which “may indicate potential extirpation from recent human 
95.

development.” In other words, development might or might not be the reason Temblor 

legless lizards were not found further east in the San Joaquin Valley. The study stated 

the occurrence of Temblor legless lizards further west into the Coast Range could be 

tested with further sampling, but all known samples from that area were confirmed to be 

silvery legless lizards. 

The 2019 Parham Study concluded with seven recommendations. The third 

recommendation stated that more protection for the Temblor legless lizard may be 

warranted and suggested applying for federal or state listing. It also stated the discovery 

of new sites for the Temblor legless lizard “provide additional hope for its conservation, 

but currently all but one known site for this species is on private land.” The sixth 

recommendation stated:

“Additional field surveys for Anniella are needed to discover new sites and 

samples for each species. Given the potentially imperiled status of [the 

Temblor legless lizard], identifying additional sites for this species should 

be a top priority. In the Coast Ranges Transverse Ranges and Southern 

Sierra Nevada, there are also areas where it is unclear what species may 

occur. By further sampling these areas we can identify areas of sympatry, 

better understand their geographic ranges, and better understand the factors 

that shape their distribution. With this information we can make more 

informed statements about their conservation status.” 

2. Conflicting Inferences

The parties have presented different views of the information in the 2019 Parham 

Study. The County takes the view that the information was far from complete, yet 

provided good news that the range of the Temblor legless lizard was more extensive than 

shown in the 2013 study. In contrast, Sierra Club and an amicus curiae believe the new 

information shows the impact on the Temblor legless lizard will be more severe than 

described in the 2015 EIR. 

In our view, the different views of the 2019 Parham Study are the result of the

parties drawing different inferences from the information provided. Our analysis of these 
96.

different views is governed by the principle of law stating how a reviewing court applies 

the deferential substantial evidence standard to the parties’ conflicting inferences. In an 

earlier CEQA case involving the County, we described that principle of law by stating:

“We recognize conflicting inferences could be drawn from the evidence 

presented, but the substantial evidence standard only requires sufficient 

evidence from which any reasonable trier of fact could find the fact in 

question. (See California Native Plant Society v. City of Rancho Cordova[, 

supra,] (2009) 172 Cal.App.4th 603, 639 [under substantial evidence 

standard, plaintiffs have burden of showing lead agency could not have 

reasonably made the factual determination challenged].)” (Association of 

Irritated Residents v. Kern County Bd. of Supervisors (2017) 17 

Cal.App.5th 708, 745.)

The principle that a court of review must accept reasonable inferences drawn by 

the lead agency in a CEQA case is consistent with how the substantial evidence standard 

of review is applied to trial court decisions. In that context, “[t]he trier of fact is the sole 

arbiter of all conflicts in the evidence, conflicting interpretations thereof, and conflicting 

inferences which reasonably may be drawn therefrom.” (Horn v. Oh (1983) 147 

Cal.App.3d 1094, 1099.)

We note that the appellate briefing of Sierra Club and the amicus curiae have not 

acknowledged the principle about conflicting inferences. Although the County’s briefing 

does not address conflicting inferences, it quotes the definition of substantial evidence 

that mentions “reasonable inferences.” (Guidelines, § 15384, subd. (a).) 

Applying the principle about conflicting inferences to the facts of this case, we 

conclude the County did not draw an unreasonable inference when it determined that the 

information about the expanded range of the Temblor legless lizard was positive news 

and, thus, did not warrant inferring the impacts on the Temblor legless lizard would be 

more severe than the significant impact (without mitigation) identified in the 2015 EIR. 

Also, the statements in the 2019 Parham Study’s recommendation for additional surveys

and the study’s many uses of the word “may” support the County’s inference that the new 
97.

information is not definitive. Consequently, under the deferential substantial evidence 

standard, we uphold the County’s determination that there was no new information of 

substantial importance and no substantial change in circumstances warranting additional 

environmental review. (§ 21166; Guidelines, § 15162, subd. (a).) 

Besides failing to address the principle about conflicting inferences, Sierra Club’s 

arguments are unconvincing because they are based on a misinterpretation of the 2015 

EIR. For example, Sierra Club asserts: “The 2015 EIR told the public and 

decisionmakers that the Temblor legless lizard was present throughout nearly all of Kern 

County, with only a small percentage of its habitat affected by the Ordinance. (AR1122-

23, 1231.)” This assertion is objectively unreasonable because the 2015 EIR states: “The 

Temblor legless lizard is known from two sites separated by continuous habitat west of 

Highway 33. The known sites are in areas of sandy soil at the southeast base of the 

Temblor Range between McKittrick and Taft on the west side of the southern San 

Joaquin Valley in Kern County, California.” These sentences do not tell the reader that 

the Temblor legless lizard is present throughout nearly all of Kern County. Thus, part of 

Sierra Club’s argument about the 2019 Parham Study containing significant new 

information is based on a mischaracterization of the old information presented in the 

2015 EIR.

VII. SPANISH TRANSLATION*

A. Background

Sierra Club’s May 29, 2020 letter to the County asserted the County must make its 

CEQA process accessible to the many Spanish language speakers in Kern County. 

Similarly, Sierra Club’s September 2020 comment letter to the draft SREIR stated the 

County must disclose information about the Revised Ordinance and its environmental 

impacts in Spanish to ensure meaningful involvement of Spanish speaking residents who 

* See footnote, ante, page 1.
98.

are disproportionately harmed by oil and gas activities. The letter asserted that at the 

August 2020 workshop, the County did not disclose any environmental information but 

merely described the draft SREIR’s structure and the decision making schedule. It also 

stated the County prohibited the public from offering oral comments at the May 2020 and 

August 2020 virtual workshops. 

The County’s response No. 0009-8 noted that CEQA and the Guidelines do not 

require translation and, even so, Spanish translation services were provided at the May 

13, 2020 virtual scoping meeting and the two virtual public workshops held in August 

and November of 2020 during the COVID-19 pandemic. The response also stated that, at 

the workshops, live translation services and closed captioning in Spanish were provided 

to facilitate participation and understanding of the SREIR. The County’s response No. 

0007-2 stated the Spanish language translation through closed captioning and live 

simultaneous interpretation via conference call for the scoping meeting and workshops 

provided “access opportunities beyond what is required by law to ensure that the 

County’s Spanish-speaking residents could participate” and the presentations given 

emphasized that written comments could be submitted in any language. Both responses 

addressed the upcoming public hearings before the planning commission and the Board, 

with response No. 0009-8 stating “Spanish translation services will be available for the 

presentation, as well as for Spanish-speakers who request to provide public comment.” 

The Board’s March 2021 written findings described (1) the closed captioning and 

live stream Spanish translation used at the May 2020 virtual scoping meeting; (2) the 

August 2020 release of the draft SREIR, (3) the August 2020 virtual public workshop 

where closed captioning and translations services were provided, (4) the second 

circulation of the draft SREIR, which incorporated public and agency comments, (5) the 

subsequent November 2020 virtual public workshop where closed captioning and 

translations services were provided, and (6) the January 2021 release of responses to all 

written comments, which preceded the Board’s public hearing. 
99.

B. Contentions

On appeal, Sierra Club contends the County’s refusal to translate notices or any 

portion of the SREIR into Spanish constitutes an abuse of discretion because it was not 

supported by substantial evidence and it undermined CEQA’s purposes of informing the 

public and promoting public participation. In particular, Sierra Club contends the limited 

accommodations did not provide Spanish-speaking residents who attended a meeting 

with access to the information disclosed in the SREIR because (1) the PowerPoint slides 

presented at two workshops were in English and did not identify specific impacts or 

project alternatives and (2) workshop attendees were directed to read for themselves 

substantive information in the SREIR, which was available only in English. 

In response, the County contends substantial evidence supports its decision not to 

translate portions of the SREIR into Spanish. In addition, the County contends Sierra 

Club’s argument is procedurally barred by res judicata and law of the case from raising 

the issue. 

C. Res Judicata

“ ‘Res judicata’ describes the preclusive effect of a final judgment on the merits. 

Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a

second suit between the same parties or parties in privity with them.” (Mycogen Corp. v. 

Monsanto Co. (2002) 28 Cal.4th 888, 896.) The elements of the doctrine of res judicata 

are: “ ‘(1) A claim or issue raised in the present action is identical to a claim or issue 

litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the 

merits; and (3) the party against whom the doctrine is being asserted was a party or in 

privity with a party to the prior proceeding.’ ” (People v. Barragan (2004) 32 Cal.4th 

236, 253.)

The doctrine of res judicata does not prevent Sierra Club from arguing notices 

relating to the SREIR and portions of the SREIR should have been translated into 

Spanish. While the third element (i.e., same parties) is satisfied, the first element is not. 
100.

When our February 2020 opinion was issued, the SREIR and related notices that are the 

subject of Sierra Club’s argument did not exist. Because the documents are different 

from those addressed previously, the issue of translation raised in this appeal is not 

“identical to a claim or issue litigated in a prior proceeding.” (People v. Barragan, 

supra, 32 Cal.4th at p. 253, italics added.) Therefore, res judicata’s primary aspect (i.e., 

claim preclusion) and secondary aspect (i.e., issue preclusion or collateral estoppel) do 

not apply to the arguments raised in this appeal. (See DKN Holdings LLC v. Faerber

(2015) 61 Cal.4th 813, 823–824 [two aspects of res judicata]; see generally, Heiser, 

California’s Confusing Collateral Estoppel (Issue Preclusion ) Doctrine (1998) 35 San 

Diego L.Rev. 509, fn. 1.) 

D. Law of the Case

California’s law of the case doctrine provides that when an appellate court decides 

an appeal and “ ‘states in its opinion a principle or rule of law necessary to the decision, 

that principle or rule becomes the law of the case and must be adhered to throughout its 

subsequent progress, both in the lower court and upon subsequent appeal ....’ ” (Kowis v. 

Howard (1992) 3 Cal.4th 888, 892–893.)

In King & Gardiner, supra, 45 Cal.App.5th 814, an unpublished portion of the 

opinion concluded that “Sierra Club has not established the County abused its discretion 

when it chose not to provide interpreters and chose not to translate notices or parts of the 

EIR into Spanish. (§ 21168.5.) Accordingly, Sierra Club has not demonstrated 

prejudicial error.” In reaching this conclusion, the opinion stated the following principles 

or rules of law. 

First, the California Constitution does not require or prohibit public agencies from 

translating CEQA documents into other languages such as Spanish. (See Cal. Const., art. 

III, § 6, subds. (b), (c).) Second, CEQA and the Guidelines do not require or prohibit 

public agencies from translating CEQA documents into other languages or providing 
101.

translators during CEQA workshops, public meetings, or other administrative 

proceedings. Third, the question of whether to provide interpreters and translations of 

CEQA documents is committed to the public agency’s discretion and that discretionary 

authority is derived from CEQA’s purposes of (1) informing the public of the potentially 

significant environmental effects of proposed activities and (2) promoting public 

participation in the environmental review process.25 We also concluded that in 

exercising this discretion, an agency must evaluate the facts and circumstances of the 

case and the factual basis for the agency’s decision is reviewed under the substantial 

evidence standard. The foregoing principles (i.e., rules of law) must be applied in this 

appeal to comply with the law of the case doctrine.

To explain the scope of the foregoing principles, we note that nothing in our 2020 

opinion stated or implied that a lead agency’s decisions about providing translations and 

interpreters was committed to the agency’s absolute discretion and, thus, was beyond 

judicial review. (Cf. Heckler v. Chaney (1985) 470 U.S. 821, 831 [“agency’s decision 

not to prosecute or enforce, whether through civil or criminal process, is a decision 

generally committed to an agency’s absolute discretion”; such decisions unsuitable for 

judicial review].) Instead, our analysis demonstrated that the County’s decisions 

regarding translations and interpreters were subject to judicial review, which necessarily 

implies it is possible for situations to arise where a failure to translate documents or 

provide interpreters constitutes an abuse of discretion. 

Based on the first two principles identified above, we conclude the County’s 

decision not to translate notices or portions of the SREIR did not violate a constitutional, 

statutory, or regulatory rule of law mandating a translation when specified criteria are 

met, such as a timely request. No such rule of law exists. Instead, the County’s decision 

25 We note that the conclusion that translation is committed to an agency’s discretion 

necessarily implies that there are situations where a failure to translate constitutes an 

abuse of that discretion. 
102.

not to translate documents involves an exercise of discretionary authority that is subject 

to judicial review under the abuse of discretion standard. 

Applying the abuse of discretion standard to the County’s decision includes 

reviewing the County’s underlying findings for fact, either expressed or implied, under 

the substantial evidence standard. (See Haraguchi v. Superior Court (2008) 43 Cal.4th 

706, 711 [“abuse of discretion standard is not a unified standard”].) The 2020 opinion 

implied that the process an agency undertakes involves (1) considering the totality of the 

circumstances, (2) making findings of fact, and (3) then weighing those facts in light of 

CEQA’s purposes to reach a decision how to exercise the discretionary authority. This 

last step, unlike finding facts or making conclusions of law, is truly a matter of discretion, 

and results in error “only if arbitrary and capricious.” (Id. at p. 712.) Another way of 

stating the arbitrary and capricious test is that the decision “exceeded the bounds of 

reason, all of the circumstances ... being considered.” (In re Marriage of Connolly

(1979) 23 Cal.3d 590, 598 [abuse of discretion standard]; see Safeco Ins. Co. of America 

v. Superior Court (2009) 173 Cal.App.4th 814, 832 [decision exceeds the bounds of 

reason].)

E. The County Evaluated the Evidence

Sierra Club asserts that roughly one in six residents of Kern County speaks 

Spanish with limited or no English proficiency and the County made its decision not to 

translate documents without evaluating these facts and circumstances. It is relatively 

easy for an appellant to contend an agency or a superior court failed to consider or 

evaluate certain evidence or factors. However, it is difficult for an appellant to actually 

demonstrate the mental process used by an agency’s decision makers or a judge omitted 

or ignored evidence. (See Gonzales v. Interinsurance Exchange (1978) 84 Cal.App.3d 

58, 63 [“ ‘consider’ ” refers to the mental process of weighing of evidence].)
103.

Here, we assume without deciding that a lead agency, after receiving a timely 

request to translate CEQA documents, abuses its discretion when it decides the request 

without considering the relevant evidence. This assumption is based on case law 

concluding a trial court abuses its discretion by failing to consider relevant evidence. 

(Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1282; In re Marriage of Cheriton

(2001) 92 Cal.App.4th 269, 304 [“court does not have discretion to ignore any relevant 

circumstance enumerated in the statute”].)

Based on the administrative record, we reject the contention that, when the County

refused to translate certain CEQA documents into Spanish, it failed to consider or 

evaluate evidence about the population, demographics and poverty levels within Kern 

County generally or within the project area in particular. The County’s response No. 

0010-3 notes that the SREIR “includes updated demographic and poverty level census 

tract data in the projected locations of future oil and gas activities permitted under the 

Project.” The response discusses the percent of population identified as white and 

Hispanic in Tier 1 areas (where oil and gas activity is the primary land use) and non-Tier 

1 areas. It states that a vast majority of the wells likely to be drilled under the Revised 

Ordinance will be located in Tier 1 areas, which has a higher proportion of white 

residents and lower poverty rate than non-Tier 1 lands and Kern County as a whole. 

Thus, the SREIR rejected the assertion that oil and gas activities authorized by the project 

would disproportionately focus potential environmental impacts on Hispanic or low 

income populations. 

The information and analysis in the final SREIR, including the County’s response 

No. 0010-3, and the explicit statements about Spanish translations for the scoping 

meeting, workshops, and public hearings in the Board’s findings demonstrates the 

County did evaluate the facts and circumstances relevant to Sierra Club’s request for 

translation of notices and portions of the SREIR. Consequently, we reject Sierra Club’s 

claim to the contrary. 
104.

Also, to the extent that Sierra Club contends the County abused its discretion by 

refusing to acknowledge or recognize it had the discretionary authority described in our 

prior opinion, we reject this contention. The fact that the County granted the request in 

part by providing translations and closed captioning at the virtual scoping meeting and 

workshops shows the County exercised its discretion and, thus, supports the inference 

that the County was aware of its discretionary authority.

F. No Abuse of Discretion

The evidence in the administrative record relating to the translation of the notices 

and portions of the SREIR does not point to a single outcome. Some evidence supports 

translating the documents to further CEQA’s purposes of informing the public and 

promoting public participation and other evidence supports the County’s decision not to 

translate the notices and portions of the SREIR. When applying the substantial evidence 

standard to an agency’s findings, a reviewing court must not reweigh conflicting 

evidence. (Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 

816.) Applying this rule of appellate procedure, we will not reweigh the evidence. 

Instead, we conclude that implied findings of fact derived from that conflicting evidence 

are sufficient to establish that the County’s decision was not arbitrary and capricious—

that is, was not beyond the bounds of reason—and, thus, was not an abuse of discretion.

A more detailed account of the conflicting evidence is not provided here because, 

contrary to the applicable rules of appellate practice, Sierra Club’s challenge to the 

sufficiency of the evidence lacked the requisite summary of the evidence on point, 

favorable and unfavorable. (See Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 

728, 738.) Without such a summary, the challenge may be deemed waived, which is 

another way of saying the appellant failed to carry its burden of affirmatively 

demonstrating error. (In re Marriage of Fink (1979) 25 Cal.3d 877, 887 [appellant 

“cite[d] only evidence favorable to his position, ignoring all to the contrary. Such briefing 
105.

is manifestly deficient.”].) Accordingly, we do not reach the question of whether Sierra 

Club demonstrated prejudice from the asserted abuse of discretion. (See § 21005, subd. 

(b) [“there is no presumption that error is prejudicial”].)

VIII. APPELLATE RELIEF*

As in the prior appeal, we conclude the “ ‘usual remedy of setting aside a project 

approval’ ” is appropriate. (King & Gardiner, supra, 45 Cal.App.5th at p. 896.) We 

have considered the County’s arguments for a limited remedy that allows the project 

approvals to remain in place while the SREIR is brought into compliance with CEQA. 

(See § 21168.9.) A suspension limited to noncompliant project activities is allowed 

“only if a court finds that (1) the portion or specific project activity or activities are 

severable, (2) severance will not prejudice complete and full compliance with [CEQA], 

and (3) the court has not found the remainder of the project to be in noncompliance with 

[CEQA].” (§ 21168.9, subd. (b).) Here, the CEQA violations relating to the assessment 

of health risks and impacts on water supply are relatively far reaching and also taint the 

adoption of the statement of overriding considerations. (See Marina, supra, 39 Cal.4th at 

p. 368 [court invalidated the statement of overriding considerations].) Therefore, in the 

circumstances presented, we cannot find the affected project activities are severable and

severance will not prejudice full compliance with CEQA. Accordingly, we will direct the 

superior court to issue a writ of mandate that implements the usual remedy. 

DISPOSITION

The second modified judgment entered on October 4, 2022, is reversed in part and 

affirmed in part and the order discharging the third writ filed on November 2, 2022 is 

reversed. The part of the second modified judgment and the third writ directing the 

respondents to suspend operation of Kern County Ordinance No. G-8992 and to refrain 

from reviewing and approving permits pursuant to that ordinance, or a modified form of 

* See footnote, ante, page 1.
106.

that ordinance, shall remain in effect pending the superior court’s issuance of a modified 

judgment and fourth peremptory writ of mandate continuing the suspension. That 

suspension shall remain in effect until the superior court discharges the fourth writ. 

On remand, the superior court is directed to enter a modified judgment and a 

fourth peremptory writ of mandate for corrective action that are not inconsistent with this 

opinion. The modified judgment and fourth peremptory writ of mandate shall direct the 

Board to (1) set aside its certification of the final SREIR and August 2022 addendum as 

complete, (2) set aside its adoption of the revised and restated findings of fact and the 

restated statement of overriding considerations, and (3) set aside the approval of the 

Revised Ordinance. The writ of mandate also shall direct the County not to present an 

ordinance streamlining the permitting of oil and gas activities to the Board for approval 

until the County has (4) prepared a revised environmental impact report that corrects the 

CEQA violations relating to (a) the rejection of agricultural conservation easements as a 

form of partial mitigation for the conversion of agricultural land, (b) the assessment of 

cancer risks associated with the drilling of multiple wells near sensitive receptors, and (c) 

the analysis of water supply impacts; (5) circulated the revised environmental impact 

report for public review and comment; and (6) prepared and published responses to the 

comments received before certifying the revised environmental impact report as complete 

and approving such an ordinance. 

Appellants shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278.)

FRANSON, Acting P. J.

WE CONCUR:

PEÑA, J.

SNAUFFER, J.