[Editor’s Note: Eight days before the County Regional Planning Commission is scheduled to vote on regulations governing drilling in the Inglewood Oil Field, here is the latest 1,000-word urgent dispatch from the indefatigable citizens’ group leader Ken Kutcher to the County, which he sent this morning. Mr. Kutcher represents the Greater Baldwin Hills Alliance.]
September 23, 2008
Regional Planning Commission
County of Los Angeles
Department of Regional Planning
320 West Temple Street, Room 1350
Los Angeles, CA 90012
Re: Project No. R2007-00570 (Dr. Fricano)
Baldwin Hills Community Standards District (CSD) and EIR
SCH No. 2007061133
Environmental Case No. RENVT2007-00048
Next Hearing Date: October 1, 2008
Dear Commissioners:
I am writing on the subject of EIRs/CEQA and legislative discretion. I am writing because, on various occasions, County staff or the County's CEQA consultant have suggested that it would not be possible for the CSD to impose a 20-year limit below 1,065 new wells since their impacts are mitigable (with the exception of earthquake and traffic impacts), according to the EIR.
Putting aside the question of whether the EIR is correct, an EIR determination that the environmental effects of legislation can be largely mitigated does not mean that the legislation cannot be strengthened to protect public welfare. Public health and safety are not the exclusive standards for enacting land use regulations, although those are the primary criteria evaluated in an EIR. Public welfare — in addition to public health and safety — is a fine, acceptable, and lawful basis for legislating more stringent zoning standards.
1. EIRs Are Informational Documents, Except They Are More Than That As To Feasible Mitigation Measures And Environmentally Superior Project Alternatives.
EIRs are informational documents that public agencies must consider before approving a project. 1 Stephen L. Kostka & Michael H. Zischke, Practice Under the California Environmental Quality Act § 11.2, p. 537 (2d ed., CEB 2008).
EIRs do not limit discretion; rather, they inform decision-makers (and the public) in the exercise of discretion. See Pub. Res. Code § 21004; State CEQA Guidelines § 15040. The one exception where EIRs are more than informative is as to feasible mitigation measures and feasible project alternatives. See State CEQA Guidelines § 15040(c).
In all instances, feasible mitigation measures must be adopted and implemented. And feasible project alternatives that are environmentally superior to the proposed project must be implemented. Pub. Res. Code § 21002 ("The Legislature finds and declares that it is the policy of the state that public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects"); Pub. Res. Code § 21002.1(b) ("Each public agency shall mitigate or avoid the significant effects on the environment of projects that it carries out or approves whenever it is feasible to do so" [emphasis added]); State CEQA Guidelines § 15021(a) ("CEQA establishes a duty for public agencies to avoid or minimize environmental damage where feasible"); and State CEQA Guidelines § 15021(a)(2) ("A public agency should not approve a project as proposed if there are feasible alternatives or mitigation measures available that would substantially lessen any significant effects that the project would have on the environment").
But in all other respects, the State CEQA Guidelines provide:
"The EIR by itself does not control the way in which a project can be built or carried out." State CEQA Guidelines § 15002(h).
2. The County Has Broad Power Under The "Police Power" Doctrine Of The California Constitution To Regulate Land Use.
Legal scholars write about the breadth of local government's authority to adopt zoning and land use restrictions:
"Cities and counties have a broad array of powers that can be used to mitigate environmental impacts as well as for other purposes. The primary power of local governments is their police power, which is the inherent power to provide for the peace, order, health, morals, welfare, and safety of the citizens. Cal. Const. art. XI, § 7. [Additional citations omitted.] Cities and counties are also authorized to regulate land use by several statutes, including the local planning law (Gov't C §§65100-65763), the zoning law (Gov't C §§65800-65912), and the Subdivision Map Act (Gov't C §§66410-66499.37)." 1 Kostka, supra § 14.24, p. 710.
Courts have also written extensively about the breadth of a local agency's power to adopt and enforce land use and zoning regulations:
"The test for evaluating land use regulatory legislation has often been stated:
'A law regulating or limiting the use of real property for the public welfare does not violate [the property rights of a landowner] as long as it is reasonably related to the accomplishment of a legitimate governmental interest . . . [T]he United States Supreme Court observed that "the courts generally have emphasized the breadth of municipal power to control land use and have sustained the regulation if it is rationally related to legitimate state concerns . . ." "Thus, an ordinance restrictive of property use will be upheld, against [constitutional] attack, unless its provisions 'are clearly arbitrary and unreasonable, having no substantial relation to public health, safety, morals or general welfare.' " ' " Guinnane v. San Francisco City Planning Comm'n, 209 Cal. App. 3d 732, 740-41, 257 Cal. Rptr. 742 (1989) (citations omitted).
These deferential principles apply equally to growth control measures. See Associated Home Builders v. City of Livermore, 18 Cal. 3d 582, 600-610, 135 Cal. Rptr. 41 (1976).
3. The County Has The Power To Regulate: (a) The Number Of New Wells That Can Be Drilled Over The Next Twenty Years, (b) The Number Of New Wells That Can Be Drilled Annually, And (c) The Eventual Conversion Of This District To Parkland.
In adopting portions of CEQA, the State Legislature found and declared:
"The provisions of [CEQA] . . . are intended to be used in conjunction with discretionary powers granted to a public agency by other law." (Legislative Comment on Pub. Res. Code § 21004.)
Thus, it would be wrong to assert that the Baldwin Hills EIR in any way prevents the County from controlling the expanded drilling. More stringent drilling controls can be imposed for legitimate reasons of public welfare. This is a "policy call" that the County must resolve. This is not a determination that is dictated by the EIR.
The same can be said of legislating eventual conversion of the oil field to parkland.
Very truly yours,
Kenneth L. Kutcher
KLK:snk
cc: Supervisor Yvonne B. Burke
Supervisor Gloria Molina
Supervisor Zev Yaroslavsky
Supervisor Don Knabe
Supervisor Michael D. Antonovich
Mike Bohlke
Councilmember Bernard Parks
Senator Mark Ridley-Thomas
Speaker Karen Bass
Congresswoman Diane Watson
Mayor Scott Malsin
Bruce McClendon
Jon Sanabria
Rose Hamilton
Russell J. Fricano
Susana Franco-Rogan
Elaine Lemke
Hal Bopp, State Oil and Gas Supervisor
Steve Rusch
Charles Moore
