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Court Upholds EIR for a Wind Energy Project Despite the Conceptual Nature of the Project Description

Tuesday, February 21st, 2012

In an unpublished decision, Bedford v. Santa Barbara County, 2012 Cal.App.Unpub.LEXIS 886, the Second Appellate District upheld a trial court’s ruling denying a petition challenging the adequacy of an environmental impact report for a wind farm project in Santa Barbara County. First, the Court upheld the trial court’s determination that the Petitioners failed to exhaust their administrative remedies relating to the adequacy of the environmental baseline and propriety of deferring certain mitigation measures. The Court explained that objections must be sufficiently specific so that the lead agency has an opportunity to evaluate and respond to them. Here, Petitioners failed to meet this burden.

Second, the Court rejected Petitioners’ challenges to the project description concluding that while the project description was conceptual, it was sufficient for the purposes of CEQA review. In reaching its holding, the Court stated that “[i]t is true the precise location of the [wind turbine generators] is unknown. But the EIR’s analysis of visual impacts is based on the maximum potential impact that the project could have. In fact, it analyzes the maximum visual impact from [] public places…” The Court also rejected Petitioners’ argument that the project description must disclose the exact type of turbines the project would use. The Court found that by disclosing the maximum height and noise allowed, the project description was not required to disclose the type of generator that would be utilized.

Third, the Court held that the four alternatives included in the EIR constituted a reasonable range of alternatives and that the EIR was not required to analyze alternatives to components of the Project. The Court also explained that the EIR properly rejected certain alternative sites as infeasible “based on sound objective criteria such as the time necessary to develop alternative sites, and the inability of alternative configurations of the WTGs on the proposed site to generate sufficient electricity.”

Fourth, the Court found the noise analysis was supported by substantial evidence because it was based on the worst case scenario. Therefore, while exact noise levels are not known, the EIR properly evaluated the potential for the project to result in significant noise impacts.

Finally, the Court rejected Petitioners’ challenges relating to the Project’s consistency with local land use policies because the policies either were not mandatory or that mitigation included in the EIR ensured compliance.

Key Points:

CEQA requires that an EIR is commenced early in the planning process. Therefore, complete and final project details are not always known during preparation of an EIR. Here, the Court held that because the project description and impact analyses in an EIR for a wind energy project provided sufficient detail to consider the worst case scenario, the EIR complied with CEQA.

Written By: Tina Thomas and Chris Butcher

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.