Today, July 30, the Center for Biological Diversity (“CBD”) filed a complaint in Sacramento County Superior Court against the Division of Oil, Gas & Geothermal Resources (“DOGGR”). CBD claims, among other things, that DOGGR failed to comply with Senate Bill 4 (“SB 4”) by releasing its Final EIR regarding oil and gas well stimulation treatment prior to the release of a state-mandated Independent Study.

This lawsuit strikes us as more of a shout out to the Legislature and the Governor to highlight CBD’s ongoing disappointment with SB 4, more than anything else. CBD mistakenly construes SB 4 to require DOGGR to analyze and incorporate the Independent Study’s findings into its Final EIR, when no such requirement is found in the law. Indeed, by its terms, SB 4 only requires DOGGR to comply with the following requirements relating to the EIR:

  • The EIR shall be certified by the division as the lead agency, no later than July 1, 2015.
  • The EIR shall address the issue of activities that may be conducted as defined in Section 3157 and that may occur at oil wells in the state existing prior to, and after, the effective date of this section.
  • The EIR shall not conflict with an EIR conducted by a local lead agency that is certified on or before July 1, 2015.

(Pub. Resources Code, § 3161.) The Legislature, not the Sacramento County Superior Court, is the proper body to which this additional request should be made, as there is currently no law mandating it.

Additionally, CBD claims that DOGGR violated CEQA by failing to prepare a subsequent or supplemental EIR taking into account “new information” contained in the Independent Study. Under section 21166 of CEQA, once an EIR has been prepared, a subsequent or supplemental EIR may be required if there are substantial changes in the surrounding circumstances. (Pub. Resources Code, § 21166.)

Numerous courts have emphasized the importance of finality and certainty over challenges as to the sufficiency of the EIR. This is because ‘‘in-depth review has already occurred, the time for challenging the sufficiency of the original EIR has long since expired … and the question is whether circumstances have changed enough to justify repeating a substantial portion of the process’’ (Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1401.)

Courts are generally deferential to agency decisions as to whether or not to prepare a subsequent or supplemental EIR. Courts use the deferential ‘‘substantial evidence’’ test, i.e., the agency decision regarding the preparation of a subsequent or supplemental EIR is upheld if it is supported by substantial evidence in the record, even if the record also contains substantial evidence to the contrary. (See, e.g., Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1073 [deferring to agency decision not to prepare subsequent or supplemental EIR]; Security Environmental Systems Inc. v. South Coast Air Quality Management Dist. (1991) 229 Cal.App.3d 110, 126 [deferring to agency decision, over objections of applicant, to prepare subsequent or supplemental EIR].)

In its complaint CBD asked the court to throw out DOGGR’s Final EIR and issue a permanent injunction restraining DOGGR from taking any action to approve any permits, licenses or authorizations to perform well stimulation.

This lawsuit is just the latest shotgun attempt to curb oil and gas production in the nation’s third largest oil producing state.