On July 25, 2014, the Court of Appeal for the Fifth District granted a request to publish a portion of the recent case Citizens Opposing a Dangerous Environment v. County of Kern, 2014 Cal. App. LEXIS 679. In the decision, the appellate court affirmed Kern County’s approval of a wind farm near a private airport and found that mitigation measures in the environmental impact report (EIR) were legally feasible.
The court published all of the opinion except for parts IV, V, and VI of the Discussion, which addressed the County’s response to late comments on the EIR, the adequacy of the evidence supporting the mitigation measures in the EIR, and the County’s obligation to consider alternatives in addition to the ones already considered in the EIR.
A complete summary of the case (including both the unpublished and published portions) is available here: http://www.thomaslaw.com/blog/court-grounds-lawsuits-challenging-wind-farms-impacts-airport-kern-county/.
The FAA is the federal agency created to ensure safe and efficient use of the nation’s airspace. Therefore, a lead agency may properly mitigate potential aviation hazards by requiring a future determination by FAA’s Obstruction Evaluation Service as to whether the proposed project may present an aviation hazard along with a commitment by the lead agency, pursuant to its police power, to prohibit construction until such a no hazard determination is made.