Fifth District Court of Appeal Validates Mitigation Requiring “No Hazard” Determination from the Federal Aviation Administration

Aviation Alert (August 2014)

On June 30, 2014, in a partially published decision, the Fifth District Court of Appeal issued its decision in Citizens Opposing a Dangerous Environment v. County of Kern (2014) __ Cal.App.4th __, 174 Cal.Rptr.3d 683, 2014 WL 3696543.  At issue was whether the County of Kern violated the California Environmental Quality Act (CEQA) by adopting a mitigation measure requiring project applicants to obtain a “no hazard” determination from the Federal Aviation Administration (FAA) for a proposed wind farm near a private airport in Kern County.  The Court of Appeal upheld the adequacy of the mitigation measure. 

By way of background, the project applicants filed a conditional use permit (CUP) application for a 339-megawatt, 116 wind turbine generator wind farm in the Tehachapi Wind Resource Area to be located near a private airport in Kern County.  The County required preparation of an environmental impact report (EIR).  The draft EIR found that the project may result in a significant environmental impact to aviation safety because the wind turbines posed a hazard to small planes and gliders using the nearby private airport.     

To mitigate the safety hazard, the EIR identified a mitigation measure (MM 4.8-8), which required project applicants to obtain a “Determination of No Hazard to Air Navigation” from the FAA for each wind turbine prior to issuance of building permits.  Thereafter, the County circulated the draft EIR for public comment and prepared a final EIR responding to comments.  The Kern County Board of Supervisors (Board) concluded that MM 4.8-8 minimized the wind turbines’ potential adverse aviation safety effects, certified the final EIR, and approved the CUP.

Subsequently, a citizens group — Citizens Opposing a Dangerous Environment (CODE) — filed suit alleging a number of EIR inadequacies.  The trial court rejected CODE’s claims and an appeal followed.  On appeal, CODE contended that MM 4.8-8 was ineffective mitigation and that the County failed to comply with CEQA’s mitigation requirements.  (Id. at p. 687.)  Specifically, CODE claimed that the mitigation was infeasible and constituted an abdication of the County’s statutory duty under CEQA to identify a feasible mitigation measure to reduce the project’s aviation safety impacts. (Id. at pp. 700-701.)  

Although the Court of Appeal opinion addresses several issues, the only issue certified for publication is the Court’s decision on the purported invalidity of the FAA mitigation measure.  As to that issue, CODE contended the EIR failed to describe mitigation that would avoid or minimize significant impacts to aviation safety.  (Id. at p. 701.)  The Court of Appeal disagreed, stating that the mitigation required the applicants to submit a “Notice of Proposed Construction or Alteration” to the FAA, and obtain from the FAA a “Determination of No Hazard to Air Navigation” for each wind turbine.  (Id.)  If the FAA found any adverse effects on aeronautical operations resulting from the wind turbines, then the applicants, in consultation with the FAA, were required to remedy those effects before they could obtain building permits from the County.  (Id.)  If no such effects were found, the applicants were still obligated to observe FAA rules and regulations, in order to maintain the “no hazard” determination and submit proof of compliance to the County.  In rejecting CODE’s contention, the Court of Appeal pointed to other CEQA case law upholding mitigation measures that require compliance with regulations, stating that such measures are “common and reasonable” under CEQA.   

CODE also contended the County “hid behind” non-existent federal preemption and failed to exercise its own independent power to mitigate significant impacts.  (Id.)  Rejecting the contention, the Court held that the impact at issue concerned aviation safety and that federal law occupies the entire field of aviation safety, granting the FAA sole discretion to regulate air safety.  (Id.)  The Court also rejected CODE’s claim that the mitigation measure was inadequate because the FAA has no authority to enforce a hazard determination by requiring the project applicants to remove the hazard.  The Court held that while the FAA could not halt construction even if it deemed the turbines were hazardous to aviation safety, under the challenged mitigation, the County was bound to do so through the exercise of its police power.  (Id.)  Therefore, the mitigation measure adopted to protect aviation safety was feasible and enforceable.  

In the unpublished portion of the opinion, the Court of Appeal considered and rejected CODE’s remaining arguments, noting the County was not required to respond to late comments, as a matter of law; finding that substantial evidence supported the Board’s determination that the mitigation sufficiently reduced significant impacts on aviation safety; and, finding that the Board was not required to adopt CODE’s proffered mitigation or the EIR’s “environmentally superior alternative.”

If you have any questions or need additional information regarding the above, please do not hesitate to contact Gatzke Dillon & Ballance LLP at 760.431.9501. Importantly, the above discussion is only a summary of the opinion. Therefore, application of this opinion's primary holdings to other matters should be subject to careful and thorough evaluation. By Danielle Morone and Matt Dillon for Gatzke Dillon & Ballance LLP.  [The information contained in this transmission does not constitute a legal opinion and should not be relied upon as legal advice.]