[Editor’s Note: A lawyer, a leader of the Greater Baldwin Hills Alliance and a Culver Crest resident, Mr. Kutcher dispatched the following letter to the County Planning authority last Thursday in a continuing attempt to force the County to conduct an environmental impact review of PXP’s oil-drilling plans for this year in the Baldwin Hills.]
Leon Freeman
Zoning Enforcement, Section I
County of Los Angeles
Department of Regional Planning
320 West Temple Street
Los Angeles, California, 90012
Re: PXP's 2009 Drilling Plan/CEQA
Dear Mr. Freeman:
This letter supplements my letter of April 6, 2009, concerning the 2009 Drilling, Redrilling, Well Abandonment, and Well Pad Restoration Plan Inglewood Oil Field (“2009 Drilling Plan”) dated January 2009, prepared by Arup and prepared for Plains Exploration & Production Company (“PXP”).
Specifically, this letter supplements the concern that the County, in reviewing the 2009 Drilling Plan, must comply with the California Environmental Quality Act (“CEQA”) (Pub. Res. Code §§ 21000, et seq.).
I am writing to bring the case of Natural Resources Defense Council, Inc. v. Arcata Nat'l Corp., 59 Cal. App. 3d 959, 131 Cal. Rptr. 172 (1976), to the County's attention.
A. Just As A Timber Plan Review Triggered CEQA, So Does The County's Review Of PXP's Drilling Plan.
NRDC v. Arcata, supra, involved the State Forester's review of timber harvesting plans submitted by various timber companies pursuant to the Z'berg-Nejedly Forest Practice Act of 1973 (“Forest Practice Act”) (Pub. Res. Code §§ 4511, et seq.) and the Forest Practice Rules (Cal. Admin. Code, tit. 14, §§ 911, et seq.). 59 Cal. App. 3d at 963. The Forest Practice Act “prescribes minute details concerning the procedure of reviewing and approving the timber operations plans by the state forester and/or the Board [of Forestry].” Id. at 967. The Forest Practice Act provided:
“The State Forester shall have . . . 15 days from the date of filing . . . or such longer period as may be mutually agreed upon by the State Forester and the person submitting the timber harvesting plan, to review the plan to determine if it is in conformance with the rules and regulations of the [State] board [of Forestry] and with the provisions of [the Forest Practice Act].” Id. at 968, n. 5.
The timber harvesting plans were required to include:
“the names and addresses of the timber owner and operator; a description of the land; a description of the silvicultural methods to be applied; an outline of the methods to be used to avoid excessive accelerated erosion; special provisions, if any, to protect the unique area within the area of timber operations; expected dates of commencement and completion of timber operations, and other information required by the State Board of Forestry.” Id. at 967. The Natural Resources Defense Council (“NDRC”) and others concerned with environmental protection brought suit to compel the State Forester to set aside submitted timber harvesting plans that were approved without preparation of environmental impact reports (“EIRs”). NRDC sought a declaration that the provisions of CEQA are applicable to timber harvesting plans submitted to the State Forester under the Forest Practice Act. Id. at 963-64.
The timber companies contended, among other things, that (a) the timber harvesting plans did not constitute a “project” within the purview of CEQA; (b) the review of timber harvesting plans was a “ministerial act” which does not require an EIR; (c) the time period provided in the Forest Practice Act for the review of timber harvesting plans was inconsistent with, and could not be harmonized with, the time frame set out for the preparation of EIRs; and (d) the Forest Practice Act, “which is a comprehensive, self-contained regulatory system for the protection of the environment,” was a “functional equivalent” of CEQA. Id. at 964.
The Court ruled in favor of NRDC and ordered the preparation of EIRs for the timber harvesting plans. The Court rejected the timber companies' arguments about why EIRs should not have been required.
The Court held: “[T]he timber harvesting plans constitute a 'project' within the meaning of [CEQA.” Id. at 967.
The Court also held the review of the timber harvesting plan was discretionary, not ministerial:
“[The timber companies'] next claim that the EIR requirement of CEQA is inapplicable to the instant case because under the Forest Practice Act the scope of review by the state forester of the timber harvesting plan is limited to a resolution of whether such plan is in conformity with the Rules and the provisions of the act. This function of the state forester, continue [the timber companies], constitutes a ministerial rather than a discretionary act within the meaning of the statute. We disagree.” Id. at 969 (citations omitted).
The Court pointed out that CEQA extends to “hybrid projects of a mixed ministerial-discretionary character and that doubts whether the project is ministerial or discretionary should be resolved in favor of the latter characterization.” Id. at 970 (citations omitted). The Court held:
“A perusal of the Forest Practice Act leads us to the conclusion that the review and approval of timber harvesting plans constitutes a hybrid or compound project to which the EIR requirement of CEQA is applicable. While certain aspects of the review by the state forester may be properly characterized as ministerial, the state forester is undoubtedly authorized to, and does, exercise his personal judgment in evaluating the timber operations.
“Thus, before authorizing any such operation, he must first establish that it conforms to all provisions of the Forest Practice Act, including the broad policies and objectives laid down in [the Forest Practice Act]. The state forester must also satisfy himself that the proposed logging operations are consistent with the Rules. The Rules, in turn, permit a great degree of latitude in the review of the plans and are not subject to mechanical operation. For example, under the Rules the state forester may not approve a timber harvesting plan unless he first finds: that the silvicultural method selected by the timber operator will ensure 'where feasible' that the timberland remains 'at or near' its productive capacity; that the proposed tractor roads and skid trails are located 'so that seed trees shall not be damaged or destroyed' and damage to the other residual trees shall be 'minimized' and will not be 'so steep' as to require the use of the bulldozer for braking; that existing tractor roads shall be used in favor of new ones 'whenever possible'; that the proposed landings are kept to a 'minimum' size and number consistent with 'practicable' logging operations; that the proposed logging roads: utilize the general contours of the land 'to the full extent practicable' to avoid 'excessive' cuts, fills and road grades; have turnouts at 'reasonable' intervals; shall be 'no wider than necessary' to permit safe passage of logging trucks and equipment; shall have 'adequate' drainage structures that will 'minimize' erosion; and shall avoid 'when possible' soil with 'highly erodible characteristics' and evidence of slope instability.” Id. at 970-71 (citations omitted; emphasis in orig.).
Similarly, the CSD requires the Planning Director to ascertain compliance with the following requirements for the annual drilling plan:
“i. The maximum number of wells proposed to be drilled or redrilled;
“ii. Approximate location of all wells proposed to be drilled or redrilled;
“iii. Approximate location of all proposed new well pads, including their size and dimensions;
“iv. Estimated target depth of all proposed wells and their estimated bottom hole locations;
“v. A discussion of the steps that have been taken to maximize use of existing well pads, maximize use of redrilled wells, and maximize the consolidation of wells;
“vi. Location of all proposed well abandonments, if known, in accordance with DOGGR integrity testing program of idle wells;
“vii. Location of all well pads proposed to be abandoned and restored;
“viii. A proposed schedule and phasing of the drilling, redrilling, well abandonment, well pad abandonment, and restoration activities;
“ix. A discussion of the latest equipment and techniques that are proposed for use as part of the drilling and redrilling program to reduce environmental impacts; and “x. A topographic vertical profile showing proposed location of new wells that reflects local terrain conditions and that addresses the potential visibility of existing and proposed wells and other production facilities from residential and recreation areas.”
LA County Code Section 22.44.142E.26.c (emphasis added).
The forest harvesting plans were required to be reviewed and approved by the State Forester within 15 “and no more than 25 days” of submittal. 59 Cal. App. 3d at 971. Similarly, the CSD requires the Planning Director to “complete the review of the annual [drilling] plan (and any amendments) within 45 days of receipt.” (Section 22.44.142E.26.c.) The Court held that such timetables do not preclude compliance with CEQA. 59 Cal. App. 3d at 971-72.
The Court also rejected the argument that:
“[O]ne of the concerns of the Forest Practice Act is the protection of the environment and that it accomplishes the same objective as CEQA. On this basis [the timber companies] maintain that the Forest Practice Act is the 'functional equivalent' of CEQA, and that as a consequence the EIR requirement as applied to the timber operations would be entirely redundant, duplicative and counterproductive.” Id. at 974.
The Court rejected this argument. Among other things, the Court found, “EIRs in CEQA and the timber harvesting plans in the Forest Practice Act do not address the same issues.” Id. at 975. The Court's reasoning follows below:
“While the Forest Practice Act contains numerous provisions to protect the soil, air, fish, wildlife, water resources and establishes minimum conservation standards for forest stocking and regeneration, control of soil erosion, protection of streams, waste disposal, fire protection, etc., and the [Forest Practice] Rules promulgated pursuant to the act also entail environmental protection standards for the conduct of timber harvesting operations, there is no requirement whatever to comply with the crucial criteria laid down in section 21100 of CEQA. Especially, it is not required that the timber harvesting plan fully analyze and disclose the adverse environmental consequences of the proposed projects; that is provide reasonable alternatives to the proposed actions or that it recommend mitigation measures to minimize the impact of the proposed activities. And although the Rules provide that the state forester shall invite and consider written comments regarding the plan, and while there are also provisions for a public hearing for the adoption and revisions of the Rules, the state forester is under no obligation to respond in any manner to the suggestions coming from members of the public, much less to furnish a good faith, reasoned analysis setting forth in detail the reasons why the economic and social value of the project overcome the significant environmental objections raised by the public.” Id. at 975-76 (citations and footnote omitted).
The same can be said of the CSD.
B. Areas Of Potentially Significant Adverse Environmental Impact.
Below is a discussion of potentially significant adverse environmental impacts that should be studied and evaluated before the County can take favorable action of a revised drilling plan from PXP.
• Biology
• Noise/vibration
• Public views
• Geology/Erosion
• Well consolidation
• Environmental justice
None of these issues has been examined as to individual well locations. Are any of the 40 proposed wells sites located in sensitive habitat areas? What specific mitigation measures are required for individual sites to ensure compliance with the noise restrictions set forth in the CSD? Will any of the proposed 40 wells sites adversely impact public views? What specific mitigation measures are required to prevent erosion in these locations? Of the 24 (maximum) new or re-dilled wells, do they serve to better accomplish oil field consolidation? How does the location of the new and re-drilled well sites compare with environmental justice concerns?
CONCLUSION
For the foregoing reasons, the County is legally obligated to conduct environmental review of the 2009 Drilling Plan.
Very truly yours,
Kenneth L. Kutcher
cc: Supervisor Mark Ridley-Thomas
Elaine Lemke
Jon Sanabria
Pat Hachiya
Russell Fricano
Susana Franco-Rogan
Karly Katona
Cynthia Dunne Traxler
Regional Planning Commission
