Superior Court of Santa Benito County, No. CU-10-00220 Hon. Robert A. O’Farrell
Counsel for Plaintiffs/Appellants: Save Panoche Valley, Santa Clara Valley Audubon Society, Sierra Club Law Offices of Rose M. Zoia Rose M. Zoia.
Counsel for Defendant/Respondent: San Benito County County Counsel, Matthew W. Granger Barbara J. Thompson Assistant County Counsel.
Counsel for Real Parties in Interest/Respondents: PV2 Energy, LLC et al. Lombardo & Gilles Jason S. Retterer.
Appellants Save Panoche Valley, Santa Clara Valley Audubon Society, and Sierra Club (collectively Save Panoche Valley) appeal from a trial court’s order denying their petition for writ of mandate. Save Panoche Valley challenged respondent San Benito County’s (hereafter County) certification of an environmental impact report (EIR) regarding a proposed solar power development in the area and the County’s cancellations of Williamson Act contracts. Respondents and real parties in interest Solargen Energy, Inc., Solargen Energy DE, PV2 Energy, LLC, PF2 Energy Holdings, LLC, and Nevo Energy, Inc. (collectively Solargen), are the developers of the proposed solar project.
For reasons set forth below, we find no error with the County’s certification of the EIR or its cancellation of the Williamson Act contracts. We affirm the judgment.
Factual and Procedural Background
Panoche Valley and the Proposed Project Site
The proposed site of the Panoche Valley Solar Farm (PVSF) Project is located approximately 0.75 miles north of Panoche Road and Little Panoche Road in San Benito County. The site is approximately two miles southwest of the Fresno County line and the Panoche Hills, and 15 miles west of Interstate 5 and the San Joaquin Valley. The land where the project would be set is primarily used for cattle grazing, and encompasses 4, 885 acres. The draft environmental impact report (DEIR) noted that according to the County Farm Service Agency, the land in the project site is able to support approximately one head of cattle per 25 acres. The area surrounding the project site is also mostly used for cattle grazing, though some farms use the land for agricultural purposes. Most of the farms close to the proposed project site rely on rotational grazing and dry farming. Agricultural operations nearby include Heirloom Organics, a farm that produces organic field crops on approximately 50 acres, and the Claravale Farm, a raw milk dairy and pistachio orchard. Both Heirloom Organics and Claravale Farm are more than 1, 000 feet from the initially proposed project boundary.
Cattle grazing has been the primary use of the proposed project site for the past 100 years. Previously, the area supported more agricultural field crops than it does in the present day. In the 1960s and the 1970s, farmers planted irrigated crops such as watermelons, potatoes, turnips, and cotton in the area. However, as the project’s DEIR noted, in recent years, landowners stated there was a significant increase in economic barriers to growing irrigated crops in Panoche Valley. Specifically, landowners faced issues with regards to water supply and quality in the area. The DEIR concluded that after some groundwater pumping tests, water levels may be adequate for “some” crop production, but noted that local groundwater quality would restrict production.
The proposed project site and surrounding area have been identified as an important area for conservation of certain animal and plant species, including the San Joaquin kit fox, giant kangaroo rat, and blunt-nosed leopard lizard. The National Audubon Society has identified the Panoche Valley as a globally significant “important bird area.” The Panoche Valley is known for high concentrations of wintering raptors, large sparrow flocks, burrowing owls, and other birds. At the time the final environmental impact report (FEIR) was drafted, the San Joaquin kit fox, giant kangaroo rat, and blunt-nosed leopard lizard were considered endangered and at a significant risk of extinction. The blunt-nosed leopard lizard is listed as endangered in both the federal and state level.
The Solar Project (PVSF)
Solargen submitted an application to the County for a conditional use permit to construct a 420 megawatt photovoltaic solar power plant on the proposed site on October 16, 2009. A DEIR was prepared, contemplating the environmental impacts of the proposed construction. The initial project proposal called for the construction of approximately three to four million solar arrays, a substation including an operation and maintenance building and transmission interconnection towers, onsite access roads, and a buried electrical collection conduit. The proposed solar project would transmit the generated electricity through the state’s existing electrical grid through two PG&E transmission lines. The solar project would operate for at least 30 years, with the possibility that the project would be repowered. Regardless of the eventual lifespan of the project, under the initial proposal, Solargen would remain responsible for removing, recycling, and disposing of all the solar rays, inverters, transformers, and any other structures on the project site after its completion.
Administrative Proceedings and the CEQA Process
Solargen’s proposed project in the Panoche Valley is set to be undertaken on acres of land designated as “Agricultural Rangeland, ” including some parcels that were under the Williamson Act contracts. In order to proceed with the development, Solargen requested that the County make a finding that the project was compatible with the Williamson Act, a request that was denied by the County’s Agricultural Preserve Advisory Committee (APAC) on November 5, 2009. This denial was later affirmed by the San Benito County Board of Supervisors (Board). Solargen then requested a cancellation of the Williamson Act contracts, which totaled approximately 6, 953 acres of land, of which 4, 563 were within the proposed project’s boundaries.
The County circulated the DEIR for an agency and public review and comment period on June 28, 2010. The DEIR concluded that the proposed project would have significant and unmitigable visual impacts to the landscape of Panoche Valley because of the presence of solar panels and other structures that would thereafter dominate the majority of the landscape. The DEIR also provided an overview of the potential biological impacts with respect to the populations of blunt-nosed leopard lizards, giant kangaroo rats, and San Joaquin kit foxes, explaining that Solargen and the County agreed to meet with stakeholders, agency representatives, and experts on each of the affected species, to identify appropriate mitigation lands that would reduce impact and sufficiently conserve habitats.
The DEIR also analyzed several alternatives. Alternative A would avoid the highest density of giant kangaroo rats, and would be located on a reduced area of 3, 927 acres. The Westlands CREZ was also suggested as an alternative site. Located in Kings and Fresno Counties, the Westlands CREZ is located on fallow agricultural lands leased by the Westlands Water District from Westside Holdings for the specific purpose of developing a 5, 000 megawatt solar power plant on approximately 30, 000 acres.
The County’s APAC considered Solargen’s Williamson Act cancellation requests on September 2, 2010, and ultimately recommended a denial of the request. APAC stated that it believed public concerns did not substantially outweigh the objectives of the Williamson Act, and that “while the State’s or applicant’s interest in renewable energy or the county’s interest in short term jobs are vital and legitimate, the project’s costs are not worth the limited gains to the County.” Furthermore, APAC reasoned that it believed “[t]here is proximate noncontracted land which is both available and suitable for the proposed use on the contracted land, ” in reference to the Westlands CREZ.
During the public comment period, the California Department of Fish and Game (DFG) issued a comment letter in July 2010, where it analyzed and offered recommendations on avoiding an unlawful “take” of certain special species of concern, including the blunt-nosed leopard lizard, on the proposed project site in the Panoche Valley. DFG asserted that the original proposal to fence in locations where blunt-nosed leopard lizards were found would actually result in a “take” in the form of a capture. DFG offered several recommendations to ensure the project would not result in a “take, ” and to safeguard the persistence and recovery of the blunt-nosed leopard lizard population in the Panoche Valley. DFG recommended completing a survey of the proposed site for the blunt-nosed leopard lizard according to DFG’s blunt-nosed leopard lizard survey protocol prior to completing CEQA review, and submitting proper permit applications pursuant to the California Endangered Species Act (CESA). DFG also recommended implementing a minimum 395-acre avoidance buffer, and avoiding all washes in the project site.
The FEIR was released on September 30, 2010. One proposed alternative, titled Alternative A Revised, incorporated changes meant to avoid areas with the highest concentration of giant kangaroo rat and blunt-nosed leopard lizard populations. The proposal included a biological conservation easement on 1, 683 acres of the project site. Panel heights would be reduced from 25 feet in the original proposal to 12.5 feet. The project would be located on approximately 3, 202 acres of land, for a total of 53 1-megawatt power blocks and 172 2-megawatt power blocks, which would generate 399 megawatts of power. The FEIR stated that the alternative would “meet most project objectives, ” and would “eliminate five of the significant and unmitigable impacts on biological and visual resources that would result from construction” of the solar project. Notably, the project proposed in Alternative A is 34 percent smaller than the initial project proposal, with a “reduced footprint..., impacts to noise, agriculture, cultural resources, biological resources, and water resources....”
The FEIR outlined several mitigation measures to avoid impact with biological species such as the blunt-nosed leopard lizard, including completion of a preconstruction survey of the project site in accordance with DFG protocols and implementing a 22-acre buffer zone for each individual blunt-nosed leopard lizard. The FEIR explained that the 22-acre buffer zone was calculated as being the largest home range size of a blunt-nosed leopard lizard as compiled by a biological study. The FEIR further provided a mitigation measure that if a blunt-nosed leopard lizard is found in the construction site, all construction will cease and the United States Fish and Wildlife Service (USFWS) and the DFG will be contacted. Furthermore, in the event that a blunt-nosed leopard lizard is killed or harmed during the course of construction, all construction will cease and the USFWS and the DFG will be contacted. Work will not restart on the site until both the DFG and the USFWS respond and all recommended mitigation measures are taken.
On October 12, 2010, the Board conducted a public hearing on the FEIR, and subsequently adopted a resolution certifying the FEIR, adopting CEQA findings including a statement of overriding interests, and approving the Williamson Act cancellation requests. The County’s planning commission approved the conditional use permit on October 20, 2010. The planning commission then recommended that the Board approve Solargen’s development agreement. On November 1, 2010, several groups including Save Panoche Valley, Center for Biological Diversity, and other interested parties appealed the planning commission’s decision to the County’s Board of Supervisors. The Board nevertheless adopted a resolution denying the appeal and upholding the planning commission’s decisions, approved the development agreement, and made findings pursuant to CEQA.
The Trial Court Litigation
On November 17, 2010, Save Panoche Valley filed a petition for a writ of mandate in the trial court, challenging the County’s decision to certify the FEIR and its decision to grant Solargen’s Williamson Act cancellation requests. After a hearing, the trial court denied Save Panoche Valley’s petition on August 30, 2011. The trial court, in its order, noted that it found that the administrative record reflected the existence of substantial evidence to support the Board’s finding that “other public concerns” substantially outweighed the objectives of the Williamson Act. The trial court also found that the FEIR was sufficiently thorough, and that the Board did not err when it approved the solar project. Judgment denying the petition for writ of mandate was entered on September 29, 2011.
Save Panoche Valley filed a timely notice of appeal on November 14, 2011.
Standard of Review
“In reviewing an agency’s compliance with CEQA in the course of its legislative or quasi-legislative actions, the courts’ inquiry ‘shall extend only to whether there was a prejudicial abuse of discretion.’ (Pub. Resources Code, § 21168.5.) Such an abuse is established ‘if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.’ ” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426, fn. omitted (Vineyard Area Citizens for Responsible Growth).)
There are two types of error which may constitute an abuse of discretion under CEQA. First, an agency may fail to proceed in the manner laid out under the CEQA regulations. Second, an agency may reach factual determinations under CEQA that are not supported by substantial evidence in the record. (Pub. Resources Code, § 21168.5.) The standards of appellate review for these two types of errors differ greatly. We examine any alleged procedural defects under a de novo standard of review. (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553 (Citizens of Goleta Valley).) However, in determining whether or not the agency’s findings are supported by the requisite substantial evidence standard, we apply a substantial evidence standard of review. (California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 986-987 (California Native Plant Society).) “We apply the substantial evidence test to conclusions, findings, and determinations, and to challenges to the scope of an EIR’s analysis of a topic, the methodology used for studying an impact, and the reliability or accuracy of the data upon which the EIR relied because these types of challenges involve factual questions.” (City of Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 898.)
For CEQA, “substantial evidence” is “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. Whether a fair argument can be made... is to be determined by examining the whole record before the lead agency. Argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly erroneous or inaccurate... does not constitute substantial evidence.” (CEQA Guidelines, § 15384, subd. (a).) The agency is the finder of fact and a court must indulge all reasonable inferences from the evidence that would support the agency’s determinations and resolve all conflicts in the evidence in favor of the agency’s decision. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.) “ ‘Technical perfection is not required; the courts have looked not for an exhaustive analysis but for adequacy, completeness and a good-faith effort at full disclosure.’ ” (Concerned Citizens of South Central L.A. v. Los Angeles Unified School Dist. (1994) 24 Cal.App.4th 826, 836.)
Additionally, “[a] court’s task is not to weigh conflicting evidence and determine who has the better argument when the dispute is whether adverse effects have been mitigated or could be better mitigated. We have neither the resources nor scientific expertise to engage in such analysis, even if the statutorily prescribed standard of review permitted us to do so.” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d376, 393 (Laurel Heights).) “[T]he relevant inquiry here is not whether the record establishes compliance but whether the record contains evidence [the agency] failed to comply with the requirements of its... regulatory program. In the absence of contrary evidence, we presume regular performance of official duty. (Evid. Code, § 664.)” (City of Sacramento v. State Water Resources Control Bd. (1992) 2 Cal.App.4th 960, 976.) The project opponents bear the burden to show the EIR is legally inadequate. (Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18 Cal.App.4th 729, 740; Pub. Resources Code, § 21168.5; CEQA Guidelines, § 15151.)
With this framework in mind, we turn to the merits of Save Panoche ...