In Sunflower Alliance v. California Department of Conservation, the Supreme Court yesterday didn’t decide whether a particular oil and gas well conversion was exempt from California Environmental Quality Act requirements, but it did tell the Court of Appeal how to make that call on remand.
The court’s six-justice opinion by Chief Justice Guerrero (Justice Kruger separately concurred) interpreted CEQA Guidelines that provide an exemption for “minor alteration[s] of existing . . . facilities . . . involving negligible or no expansion of existing or former use.” Applying the Guideline requires a focus on “an expansion or change in the nature or degree of a structure or facility’s use, not the risk of environmental harm caused by such an expansion or change in use,” the court concluded.
When the court granted review, it limited the issues to two. (See here.) In its opinion, however, the court resolved only the second issue. The first — “May an agency claim a categorical exemption from environmental review under CEQA while also adopting conditions of approval relating to potential environmental effects?” — was undecided (rule 8.516(b)(3) [“The court need not decide every issue the parties raise or the court specifies”]) because it is moot if the Court of Appeal decides the exemption is inapplicable or it is for the Court of Appeal in the first instance if the exemption does apply.
Justice Kruger’s concurrence stressed the complexity of determining “whether a proposed expansion of use is ‘negligible’ or not.” She wrote the Court of Appeal’s task on remand “will be to measure the expansion — i.e., converting a long-dormant oil extraction well into a well dedicated to daily injecting some 12,600 gallons of treated wastewater into an underground aquifer — not only by referring to CEQA’s ultimate purpose of protecting the environment, but also by giving careful consideration to the manner in which CEQA demands that environmental concerns be aired and assessed.”
The court reverses the First District, Division Five, published opinion, which had upheld the exemption based on the conclusion “the environmental risks of [the new use] are negligible,” a standard the Supreme Court now said is incorrect.
