~ 0' - The City Project · City Attorney 2 HEATHER S. BAKR ... the Public and Adopts an Emergency...

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1 CAROL A. SCHWAB (SBN 120183)City Attorney

2 HEATHER S. BAKR (SBN 193058)Assistant City Attorney

3 CITY OF CULVER CITY9770 Culver Blvd

4 Culver City, Californa 90232Telephone: 310.253.5660

5 Fax: 310.253.5664

DAVID E. CRASTON (SBN 122558)DCranston~GreenbergGlusker.comGARTT L. HANKEN (SBN 057213)GHanen~GreenbergGlusker.comSEDINA L. BANKS (SBN 229193)SBans~GreenbergGlusker.comGREENBERG GLUSKER FIELDS CLAMAN &MACHTINGER LLP1900 Avenue of the Stars, 21 st FloorLos Angeles, California 90067-4590Telephone: 310.553.3610

Fax: 310.553.0687

Attorneys for PetitionerCITY OF CULVER CITY

(LIST OF COUNSEL CONTINUED ON NEXTPAGE)

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES CENTRAL DISTRICT

COMMUNITY HEALTH COUNCILS, INC.et ai.

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Petitioner,

v.

COUNTY OF LOS ANGELES, and DOES 1 -22 30, Inclusive,

23 Respondents,24 PLAINS EXPLORATION AND

PRODUCTION COMPANY, a Delaware25 corporation et aI.,

26 Real Parties in Interest.27 AND CONSOLIDATED CASES

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14314-00017/1712188.1

Lead Case No. BS118018(Consolidated with BS118023, BS118039,BS118056)

Assigned To: Hon. James C. Chalfant

PETITIONERS' OPENING BRIEF

Hearing Date: February 25,2010Time: 9:30 a.m.Place: Department 85

Action filing dates: Nov. 25, Nov. 26 &Dec. 1,2008Trial date: February 25,2010


1 KENNETH L. KUTCHER (SBN 110804)CHRISTOPHER M. HARDING (SBN 76681)

2 HAING LARORE MULLEN JAKEKUTCHER & KOZAL, LLP

3 1250 6TH Street, Suite 300Santa Monica, CA 90401-1602

4 Telephone: 310.393.1007

5 DAVID PETTIT (SBN 67128)JOEL REYNOLDS (SBN 85276)

6 DAMON NAGAMI (SBN 217089)NATURAL RESOURCES DEFENSE COUNCIL

7 1314 Second StreetSanta Monica, CA 90401

8 Telephone: 310.434.2300

9 Attorneys for PetitionersCOMMUITY HEALTH COUNCILS, INC.,

10 NATURAL RESOURCES DEFENSE COUNCILz & MA SALKI~ 11~ TODD T. CARIFF (SBN 221851).. "0U 00\ 12 LAW OFFICES OF TODD T. CARIFFOonrz ~ ¡, "i

121 Broadway, Suite 358~ ....t-.... ~:g 13 San Diego, CA 92101~~NOji v...0"

Telephone. 619.546-5123 ~~ ~ i:~ 0tñ"§ 14 Fax: 619.546.5133~z OJcB~t.s:.rz ~.. i:

15 Attorney for Petitioner~ ou..u g,, CITIZEN'S COALITION FOR A SAFE0~ 5~o .. OI 16 COMMUITY~~~~~ 0'"i: 0\ 0 17 ROBERT GARCIA (SBN 84898)z ....~ RGarcia~cityproj ectca.org~ 18~ ELISE MEERK TZ (SBN 250580)0 EMeerkatz~cityproj ectca.org

19 ZOE RAWSON (SBN 255137)ZRawson~cityproj ectca. org

20 THE CITY PROJECT1055 Wilshire Boulevard, Suite 1660

21 Los Angeles, CA 90017Telephone: 213.977.1035

22Attorneys for Petitioner

23 CONCERNED CITIZENS OF SOUTH CENTRALLOS ANGELES

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TABLE OF CONTENTS

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I. INTRODUCTION .............................................................................................................. 1

II. STATEMENT OF FACTS ................................................................................................. 4

A. The Oil Field......... .................. ..... .................... .................................. ................. .... 4

B. Impacts From Oil Drilling Cause Major Public Health and Safety Concerns ........ 6

C. The County Determines that Oil Field Regulations are Needed to Protectthe Public and Adopts an Emergency Ordinance to Prohibit FurterDrilling ....................................................................................................................7

D. The County Releases the DEIR Only Days Before the Expiration of theEmergency Ordinance.. ................................................ ... ........ ... ..... ............ ..... ....... 9

E. The DEIR Reviews a CSD Completely Different from the One UltimatelyAdopted.................................................................................................................10

F. The County Amends the CSD After the Board Certifies the ErR...... .............. ..... 10

III. STANDAR OF REVIEW ..............................................................................................12

IV. THE ErR DOES NOT COMPLY WITH AND IS IN VIOLATION OF CEQA .............13

A. The EIR Has An Inadequate Project Description .................................................13

1. The EIR Failed to Describe the Project Adequately Because it

Described the Project as a Regulatory Scheme Rather than as theFurher Development and Expansion of the Oil Field ......................... ..... 14

2. The ErR Failed To Study The County's Proposed CSD And InsteadStudied A "Strawman" CSD Written By PXP, The Par To WhomThe Regulations Are Directed.... ............................ ......... ............... ........... 18

B. The EIR Lacks an Adequate Consideration and Discussion oftheSignificant Environmental Impacts to Air Quality, Human Health Risk,Risk of Upset, Noise and Vibration, GHGs and Environmental Justice............... 21

1. Air Quality ................................................................................................ 21

2. Public Health Risk .................................................................................... 29

3. Risk of Upset From Oil Spills................................................................... 34

4. Noise .........................................................................................................37

5. The ErR Lacks a Discussion of Significant Impacts from GHGs....... ...... 41

6. The EIR Lacks an Adequate Analysis ofthe Social, Economic andEnvironmental Justice Effects and Physical Changes Caused by theProject .......................................................................................................43


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TABLE OF CONTENTS(continued)

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7. The CSD Failed To Mandate Removal of The Existing Gas PlantFlare Despite the Specification of such a Mitigation Measure in theEIR............................................................................................................46

C. The EIR Lacks an Adequate Consideration and Discussion of MitigationMeasures with Respect to the Environmental Impacts of the Project.................. 47

D. When Adopting The CSD, The County Failed To Impose EnforceableMitigation Measures Identified In The EIR And Instead UnlawfllyDeferred Those Mitigation Measures By Promising To AdoptImplementation Plans In the Futue ...................................................................... 50

E. Neither the EIR Nor the Statement of Overriding Considerations Containsan Adequate Analysis of Signficant Irreversible Environmental Changes.......... 52

F. The ErR Failed To Consider A Reasonable Range Of Project Alternatives,Including Any Alternative That Does Not Foster Expansion Of The OilField ...................................................................................................................... 53

1. The EIR Considered Only a Limited Range of Project Alternatives........ 53

2. The EIR Should Have Considered Other Alternatives As SuggestedDuring Public Comment........................ .............. ..... .................. ..... ......... 54

THE COUNTY IMPROPERLY FAILED TO RECIRCULATE THE ErR..................... 58

IN ITS RUSH TO ADOPT THE CSD, THE COUNTY FAILED TO REFERSUPERVISOR BURK'S AMENDMENTS BACK TO THE PLANINGCOMMISSION FOR REVIEW AND RECOMMENDATION AS REQUIREDBY COUNTY CODE........................................................................................................ 59

CONCLUSION ................................................................................................................. 60

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T ABLE OF AUTHORITIES

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CALIFORNIA CASES

Anderson First CoaL. v. City of Anderson,130 Cal.App.4th 1173 (2005)..................................................................................................43

Bakersfield Citizens for Local Control v. City of Bakersfield,124 CaI.App.4th 1184 (2004).................................................................................................. 43

Benton v. Board of Supervisors,226 CaI.App.3d 1467 (1991)................................................................................................... 23

Berkeley Keep Jets Over The Bay Comm. v. Board of Port Comm 'rs,91 CaI.App.4th 1344 (2001).............................................................................................. 42, 44

Beverly Oil Co. v. City of Los Angeles,40 CaI.2d 552 (1953) .............................................................................................. 3, 48,55,56

Christward Ministry v. Superior Court,184 CaI.App.3d 180 (1986).....................................................................................................43

Citizens Ass'nfor Sensible Dev. v. County of In yo,172 CaI.App.3d 151 (1985).....................................................................................................15

Citizens to Preserve the Ojai v. County of Ventura,176 CaI.App.3d 421 (1985)............................................................................................... 12, 13

City of Carmel- By- The-Sea v. Board of Supervisors,183 CaI.App.3d 229 (1986)................................................................................... 14, 15,24,57

Communities for a Better Env 't v. California Resources Agency,103 CaI.App.4th 98 (2002)...................................................................................................... 35

County of Amador v. El Dorado County Water Agency,76 CaI.App.4th 931 (1999)...................................................................................................... 21

County of Inyo v. City of Los Angeles,71 CaI.App.3d 185 (1977).................................................................................................18,20

Environmental Prot. Info. Ctr. v. California Dep 't of Forestry & Fire Prot.("EP ie'), 44 Cal.4th 459 (2008) ................................................................ ...................... 31, 32

Environmental Prot. Info. Ctr. v. Johnson,170 CaI.App.3d 604 (1985).....................................................................................................30

Fairview Neighbors v. County of Ventura,70 CaI.App.4th 23 8 (1999)...................................................................................................... 23

Federation of Hilside & Canyon Ass 'ns v. City of Los Angeles,83 CaI.App.4th 1252 (2000)........................................................................................37,50,59

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TABLE OF AUTHORITIES(continued)

Page

Gray v. County of Madera,167 CaI.App.4th 1099 (2008)...................................................................................... 32,38,40

Kings County Farm Bureau v. City of Hanford,221 CaI.App.3d 692 (1990).............................................................................................. passim

Laurel Heights Improvement Ass 'n of San Francisco v. Regents of the Univ. of California,6 CaI.4th 1112 (1993) ............................................................................................................. 58

Laurel Heights Improvement Ass 'n v. Regents of Univ. of California,47 CaI.3d 376 (1988) .................................................................................................. 12, 13,34

Los Angeles Unifed School Dist. v. City of Los Angeles,58 CaI.App.4th 1019 (1997) ("LA USD") .... ............. .................................... ...... .............. passim

McQueen v. Board of Dirs.,202 CaI.App.3d 1136 (1988)................................................................................................... 14

Mira Monte Homeowners Ass 'n v. County of Ventura,165 CaI.App.3d 357 (1985)..................................................................................................... 13

Mountain Lion Found v. Fish & Game Comm 'n,16 CaL 4th 105 (1997) ............................................................................................................. 13

Oro Fino Gold Mining Corp. v. County of El Dorado,225 CaI.App.3d 872 (1990)..................................................................................................... 51

Preservation Action Council v. City of Jan Jose,141 CaI.App.4th 1336 (2006)............................................................................................ 53,54

Protect the Historic Amador Waterways v. Amador Water Agency,116 CaI.App.4th 1099 (2004).................................................................................... 3, 4, 13,38

Rio Vista Farm Bureau Ctr. v. County of Solano,5 CaI.App.4th 351 (1992)...................................................................................... 14, 15, 17,52

Sacramento Old City Ass 'n v. City Council,229 CaI.App.3d 1011 (1991)...................................................................................................52

San Franciscans for Reasonable Growth v. City & County of San Francisco,193 CaI.App.3d 1544 (1987)...................................................................................................34

San Joaquin Raptor Rescue Center v. County of Merced,149 CaI.App.4th 645 (2007)........................................................................................ 20,21,25

Save Our Peninsula Comm. v. Monterey County Bd of Supervisors,87 CaI.App.4th 99 (2001)..................,.............................................................................. passim

Schoen v. Department of Forestry & Fire Prot.,58 CaI.App.4th 556 .................................................................................................................52

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3 Stevens v. City of Glendale,125 CaI.App.3d 986 (1981)............................................................................................... 36, 37

4Sundstrom v. County of Mendocino,

5 202 CaI.App.3d 296 (1988).....................................................................................................51

6 Vilage of Arlington Heights v. Metropolitan Housing Dev. Corp.,429 U.S. 252 (1977)................................................................................................................ 46

7Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova,

8 40 CaI.4th 412 (2007) ....................................................................................................... 12,21

9 Western States Petroleum Ass'n v, Superior Court,

9 CaI.4th 559 (1995) ............................................................................................................... 1410

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Woodward Park Homeowners Ass 'n v. City of Fresno,150 CaI.App.4th 683 (2007)................................................................................. ............ passim

FEDERAL CASES

Chapman v. Nicholson,579 F.Supp. 1504 (1984).........................................................................................................46

Committee Concerning Cmty. Improvement v. City of Modesto,583 F.3d 690 (9th Cir. 2009)................................................................................................... 46

Darensburg v. Metropolitan Transp. Comm 'n,No. C-05-01597 EDL, 2008 U.S. Dist. LEXIS 63991 (N:D. CaL Aug. 21, 2008)................. 45

Fairview Township v. EPA,773 F.2d 517 (1985)..........................................................................................................46,47

20 Guardians Ass 'n v. Civil Service Comm 'n,463 U.S. 582 (1983) ................................................................................................................ 44

21Larry P. v. Riles,

22 793 F.2d 969 (9th Cir. 1984)................................................................................................... 45

23 Rosemere Neighborhood Ass 'n v. United States Envtl. Prot. Agency,581 F.3d 1169 (9th Cir. 2009)................................................................................................. 45

24Sierra Club v. Morton,

25 405 U.S. 727 (1972)................................................................................................................ 46

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CALIFORNIA STATUTES

ClY. PROC. CODE § 1021.5 ............................................................................................................60

Global Waring Solutions Act of 2006 ....................................................................................... 41

GOy'T CODE § 11135 .................................................................................................................... 45

GOy'T CODE § 65040.12 ...............................................................................................................45

GOy'T CODE § 65857 ....................................................................................................................59

GOy'T CODE § 65858 .................................................................................................................. 8, 9

PUB. REs. CODE § 3203 ........................................................................................................... ......24

PUB. REs. CODE § 21002 ...............................................................................................................42

PUB. REs. CODE § 21002.1 ................................................................................................28,47,50

PUB. REs. CODE § 21080.........................................................................................................14, 16

PUB. REs. CODE § 21081.........................................................................................................50,53

PUB. REs. CODE § 21081.6...................................................................................................... 42,50

PUB. REs. CODE § 21082.2(a)........................................................................................................41

PUB. REs. CODE § 21092.1 .......... ................ ........... .......... ..................... ............. ........................... 58

PUB. REs. CODE § 21100...................................................................................................13,41,47

PUB. REs. CODE § 21167 ...............................................................................................................12

PUB. REs. CODE § 21168.5 ............................................................................................................12

PUB. REs. CODE § 21168.9 ............................................................................................................ 18

PUB. REs. CODE § 32555 ............................................................................................................... 56

PUB. REs. CODE § 32565.5 ............................................................................................................56

CALIFORNIA CODE OF REGULATIONS

CAL. CODE REGs. tit. 22 § 98101(i) (2007)................................................................................... 45

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3 CEQA GUIDELINES (CALIFORNIA CODE OF REGULATIONS, TITLE 14, §§ 15000 ET. SEQ)

4 GUIDELINES § 15021 .....................................................................................................................42

5 GUlDELINES § 15064 .....................................................................................................................29

6 GUlDELINES § 15064.7 ..................................................................................................................29

7 GUlDELINES § 15088.5 ............................................................................................................58,59

8 GUlDELINES § 15091 ............................................................................................................... 42,50

9 GUlDELINS § 15093 .....................................................................................................................53

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GUIDELINES § 15105 .................................................................................................................9, 11

GUlDELINES § 15112 .....................................................................................................................12

GUlDELINES § 15121 ...............................................................................................................44,47

GUIDELINES § 15125 ...................................................................................................21,22,23,27

GUlDELINES § 15126 ..................................................................................................................... 42

GUIDELINES § 15126.2 ....................................................................................21, 22, 23, 42,52,53

GUlDELINES § 15126.4 ................................................................................................ 36,37,47,50

GUlDELINES § 15126.6 ..................................................................................................................53

GUlDELINES § 15131 ..................................................................................................................... 43

19 GUlDELINES § 15143 ..................................................................................................................... 35

20 GUlDELINES § 15147 ..................................................................................................................... 34

21 GUlDELINES § 15148 ..................................................................................................................... 33

22 GUlDELINES § 15151 ............................................................................................................... 35, 44

23 GUlDELINES § 15268 ............................................... ....................... ......................... ...................... 16

24 GUlDELINES § 15355 .....................................................................................................................31

25 GUIDELINES § 15378 ......................................................................................................... 14, 17,57

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27 FEDERAL STATUTES

28 Title VI of the Civil Rights Act of 1964 ................................................................................. 44,45

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FEDERA REGULATIONS

49 C.F.R. § 194.105 ...................................................................................................................... 36

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I. INTRODUCTION

Petitioners, the City of Culver City ("Culver City"), Communty Health Councils, Inc.,

Natual Resources Defense Council and Mark Salkin, Concerned Citizens of South Central Los

Angeles, and Citizens Coalitions for a Safe Community (collectively "Petitioners"), challenge the

legal adequacy of the Final Environmental Impact Report (the "EIR") for the regulation of new

oil well drilling and other operations in the Inglewood Oil Field (the "Oil Field") by a new zoning

overlay district known as the Baldwin Hils Communty Standards District (the "CSD"). Spured

by the 2006 damaging release of noxious gases caused by oil drillng impacting surounding

neighborhoods, the Respondent County of Los Angeles ("County") legislated the CSD. The

County recognized that expanded operations in a 900 acre oil field operating in the middle of a

highly urbanzed environment with over a million people required the modernzation of

anachronistic zoning regulations. The CSD was supposed to "ensure that oil field operations are

conducted in harmony with adjacent land uses, to minimize the potential adverse impacts of such

operations so they are compatible with surounding land uses...to protect the comfort, health,

safety and general welfare of people living, working and recreating in the surounding areas."

Unfortately, due in large part to significant political and legal pressure by Real Par in

Interest, Plains Exploration & Production Company ("PXP") (see BH003157), the CSD missed

its mark in manifold ways.

The CSD was intended so that future oil operations, including hundreds of new wells, and

even the future development of so-called mitigation, would be insulated from future review under

CEQA. Thus, as a practical matter, the EIR purports to be the final discretionary review for all

new driling and other operations at the Oil Field over the next twenty years. Given the long-

range impacts ofPXP's planed massive driling and oil extraction operations, the ErR's

inadequacy, as well as the inadequacy of the CSD's purorted mitigation measures, are of

substantial regional importance for dozens of communties and the tens of thousands of families

who live and work in them.

While the CSD may be an improvement over the County's prior minimal regulation over

the Oil Field, the EIR supporting it has major flaws that undermine its adequacy both as an

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informational document and as a means to develop the important feasible mitigation measures

necessar to protect against anticipated environmental har. As so many of the defects have

undermined the County's ability to identify and mitigate the impacts from the Oil Field

operations, the EIR's defects wil have real-life impacts on surounding communties. Petitioners

have endeavored to focus on those defects which, if corrected after issuance of the writ, should

result in meanngful changes to the EIR and the CSD - changes that wil benefit the surounding

communities and environment. Among those are the following:

. The EIR Failed to Describe or Consider the Right Project. The "Project"

described and considered by the EIR was PXP's own strawman version of the CSD, not the very

different CSD adopted by the County. Under the circumstances, the Project should have been

described as PXP's future development of the Oil Field through the drilling of hundreds of new

wells and related activities over the next 20 years rather than as the legislation approved by the

County. In fact, the EIR considered neither. Instead, the project described and considered by the

EIR was the PXP version of the CSD, which looks nothing like the County version ultimately

considered for approvaL This defect occured because the County completed the DEIR before

even drafting its CSD. These fudamental flaws are fatal to the EIR and undermine its entire

purose and meaning.

. The EIR Improperly Included Emissions from Prior Driling Projects in its

Air Quality Baseline. Without CEQA review, PXP undertook in 2006 more separately permitted

drillng projects than almost any other year in the Oil Field's history. By including emissions

from 2006's increased driling in its air quality baseline, the ErR conceals significant air quality

impacts from future driling.

. The EIR Failed to Properly Assess Public Health Impacts. The EIR used a 10

in one million cancer risk significance threshold while the record itself indicates that 1 in one

million should have been used. Moreover, the ErR failed to consider (i) the cumulative health

impacts of prior exposure to Oil Field toxic emissions in assessing the health impact of future

toxic emissions, and (ii) the risk of acute exposure that may occur as a result of catastrophic

releases similar to those that have already occured.14314-00017/1712188.1 2


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. The EIR Failed to Adequately Consider the Risk of Major Oil Spils Like the

One That Had Occurred Only Months Before the EIR was Issued. In doing so, the ErR

failed to adopt adequate mitigation, and failed to consider the significant environmental impacts

that its mitigation would cause. And even the mitigation that it did recommend was not

incorporated into the CSD - without any findings to support its omission.

. In "Mitigating" the Noise Impacts of Driling, the EIR Allows a 5dBA

Increase in Residential Areas Already Subjected to Excessive Noise. Without substatial

evidence, the EIR determined that a 5dBA increase was "insignficant." In addition, the ErR

failed to consider the cumulative impacts of such noise on nearby residents who already live with

noise that is in excess of that permitted by the County in its County Code.

. The EIR Entirely Abdicated the Obligation to Consider the Significance of

Greenhouse Gas Emissions (GHGs). Whle the EIR acknowledges over 167,000 tons of new

GHGs would be emitted from the Oil Field, it refused to even consider the cumulative

signficance of the GHGs or how such GHGs could be mitigated. This error fles in the face of

recent legislation emphasizing the importance of studying GHG impacts.

. The EIR Failed to Include Feasible Mitigation Measures that Would Help

Protect Surrounding Residents. Consolidation of wells, electrification of drill rigs and the

closure of idle wells as new ones are driled were all measures that could significantly mitigate

the impacts of new driling projects, yet the EIR gave no meaningful consideration to them.

. The CSD Unlawfully Deferred the Implementation of Enforceable Mitigation.

The CSD calls for the development of numerous future plans to consider and develop mitigation

rather than adopting the EIR recommended mitigation.

. The Final EIR Should Have Been Recirculated. After adding substantial new

information, including information about the January 2006 noxious gas release, and the March

2008 oil spil, the Final EIR should have been recirculated.

For anyone ofthese reasons, and the many more described in this brief, the Court should

issue the writ and instruct the County to correct the EIR's many significant flaws in order that oil

production can be caried out in the Oil Field in a safe and environmentally protective maner.14314-00017/1712188.1 3


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This is a classic case where people of color are being forced to accept a noxious industrial use

without full mitiJation. Such an outcome would not be tried in other communities.

II. STATEMENT OF FACTS

A. The Oil Field

The Oil Field, which encompasses approximately 1,000 acres, is located in the hear of

one ofthe nation's largest and most populous metropolitan areas. BH000084 ("FEIR")-00031.1

Located primarly within the unncorporated Baldwin Hils and parially within Culver City, the

Oil Field is surounded by the communities of Culver Crest, Ladera Heights, Blair Hils, Baldwin

Hills, Baldwin Vista, View Park, Culver City Creekside, and Windsor Hils and the West Los

Angeles Community College campus.2 FEIR-00509-510. Various parks/recreation areas also

suround the Oil Field, including Kenneth Hah State Recreation Area, the Ladera Ball Fields, the

Baldwin Hills Scenic Overlook, and Culver City Park. FEIR-00579. The Oil Field also includes

portions of the seismically-active Newport-Inglewood Fault, which is capable of generating up to

a 7.4 earhquake. FEIR-00354,359.

When the Oil Field's operations began in 1924, the area was primarly rural land. FEIR-

00506. Over time, however, the land converted to residential suburbs (Id), populated primarily

by African Americans:

The Baldwin Hils area of Los Angeles has long been ageographical focus for African Americans. The African Americanmovement towards the Baldwin Hills area is rooted in a number offactors, including racial segregation that existed thoughout the LosAngeles area in the 1950s . . . As segregation began to fall in the1960s, middle and upper class African Americansdisproportionately moved westward from South Central LosAngeles. White flight from advancing blacks opened upopportunties to rent or buy housing. Hundreds of houses andapartment complexes were built in Baldwin Hills in the 1950sproviding larger more comfortable houses that were desirable to themore affuent African Americans that moved to the area. . .. By

1 The Final EIR is located in the Administrative Record at BH000084-00001 through BH000084-

06718. For ease of reference, each citation to the Final EIR from the administrative record willbe referred to as "FEIR-#####," with the pre-fix "BH000084" being substituted with "FEIR."2 The number of schools and preschools within a two-mile radius is high (there are 45).

BH007927-00841-842. Other schools in the immediate vicinity include Windsor HilsElementary, Baldwin Hils Elementary, Hillcrest Elementary and the Ohr Eliyahu Academy (atthe former Linda Vista Elementar School site). FEIR-00330.

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the late-1950s and early-1960s Baldwin Hils became the hear ofaffluent African American cultue in Los Angeles. FEIR-00601.

Thus, historically, the Baldwin Hills has been an epicenter of excellence for African

Americans across the nation, and yet they are stil saddled with the impact ofthe Oil Field in the

midst of the communty, an inadequate EIR and CSD, and a process that denied full and fair

communty paricipation. Today, a disproportionate percentage of people of color (70%) live in

the Baldwin Hils area compared to the County as a whole (51.3%). FEIR-00667. Fifty percent

of the residents in the area are African American, compared to only ten percent in the County.

BH000771,772. Economically, over 18% live in poverty. BH007927-00063.

Over 1,600 wells have been drilled (an average ofless than 20 per year) at the Oil Field

since 1924. FEIR-00031. PXP curently operates the entire Oil Field, which has 436 active

producing wells, 207 active water injection wells, 177 idled wells (i.e., not curently producing,

but also not closed or "abandoned" in accordance with State regulatory requirements), and 643

abandoned (i.e., closed) wells. FEIR-00128. Although operations continue today, oil and gas are

no longer as readily recovered as they once were. BH007927-00996. The field's oil production

quickly peaked in 1925, when 176 new wells were drilled. FEIR-00033. Gas production peaked

in the 1960s and then declined throughout the 1980s. FEIR-00124. In the late 1980s and early

1990s, an average ofless than 4 new wells were drilled per year. FEIR-00I06, 124, 125.3

As a result of the past 85 years of drillng, PXP must now use "enhanced recovery

techniques," which involve injecting high pressure water into the earh to extract the oil and gas

from reservoirs located generally between 1,000 and 10,000 feet beneath the surface. FEIR-

00125-26. In late 2006, PXP pursued deeper drilling (more than 6,000 feet below the surface),

leading to increased risk and the noxious gas releases described below. FEIR-05710, 5731, 5966;

BH009613-14. Enhanced recovery extracts a mixture of water (97%), gas and oil, which PXP

then processes at a central plant on-site to remove the crude oil from the water and remove

hydrogen sulfide, carbon dioxide, ethane, propane, butane, etc. from the natural gas. FEIR-

00123, 126. Current daily production volumes are approximately 300,000 barels of water, 8,700

3 Each new well is drilled on a 24-hour basis for up to 30 days. FEIR-OOI72.

14314-00017/1712188.1 5PETITIONERS' OPENING BRIEF

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barels of oil, and 5,700 thousand cubic feet of natual gas. FEIR-00033. The oil and gas are

pumped off-site through pipelines. FEIR-00120, 123.

B. Impacts From Oil Driling Cause Major Public Health and Safety Concerns

Beginnng at around midnight on January 10,2006, PXP's oil operations led to the release

of noxious gases (the "Januar 2006 Noxious Gas Release"), which permeated throughout the

adjacent 500-home Culver Crest neighborhood. BH007927-00533,563-565. Many residents

evacuated out of fear for their health and safety, with one resident stating "the smell was strong

enough that she didn't want either her or her two children to breathe the air outside." BH007927-

00533, FEIR-00271. Culver City received at least 60 complaints. BH007374. Representatives

from the South Coast Air Quality Management District ("SCAQMD"), the Culver City Fire

Deparment, the Los Angeles County Fire Deparment, and the Los Angeles County Health &

Hazardous Materials Deparment were dispatched. BH007927-00553. According to SCAQMD,

PXP's operations were directly to blame:

(O)n Januar 10th at 21:30hrs, (PXP's) crew had encountered a largemethane gas pocket (trap) during the drilling activities at a depth of8850ft. The build up of methane gas immediately occured during thedrillng operation in which a large amount of driling spoils and othercontaminated base material sprayed out from the well head during the shutdown process which occured until nearly 1 :30hrs on Janua 11th.BH007927-00554.

SCAQMD also verified that an "unown quantity of methane and hydrogen sulfide (was)

released." FEIR-00270; see also FEIR-05874.

On Februar 6 through the 7, 2006, a similar incident occurred. This time, in addition to

Culver Crest residents, West Los Angeles College and its students also complained. BH007927-

00529-32,537-39,541,551. As a result, SCAQMD issued a Notice of Violation to PXP because

"( d)ischarge from oil well driling operation caused nuisance to a considerable number of

people." BH007927-00527,556. However, despite community and SCAQMD concerns, PXP

stated that there was "really nothing (they) could do to prevent it -- it was routine, daytime

operations." BH025007.

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C. The County Determines that Oil Field Regulations are Needed to Protect thePublic and Adopts an Emergency Ordinance to Prohibit Further Driling

Although operations had been ongoing since 1924, at the time of the Januar 2006

Noxious Gas Release there were limited County zoning regulations controlling Oil Field

operations and none controlling expansion. FEIR-00675; BH009463-85. Until the CSD's

adoption, permitting of PXP's operations was entirely ministerial as to the County and therefore

did not trigger any CEQA review within the County. BH027675; FEIR-00674. Meanwhile, the

Division of Oil Gas and Geothermal Resources ("DOGGR"), the state agency with oversight of

oil and gas operations, was not conducting any CEQA review because DOGGR "had assumed

that the County is the lead agency ... and thus made the environmental determination."

BH027675; see also BH007199-7229, 7244-45. Thus, neither Los Angeles County nor DOGGR

was performing any meaningful environmental review ofPXP's expansion of its oil operations in

the midst of this dense urban environment.4 Eventually, DOGGR did assume lead agency status

under CEQA in approving a final batch of new well permits once it leared that the County was

not conducting CEQA review. BH007927-00423.

In response to community health and safety concern over the January and Februar 2006

Noxious Gas Releases, on June 27, 2006, the County Board of Supervisors ("Board") adopted a

45-day Urgency Ordinance (the "Emergency Ordinance") (BH009281-89):

to impose additional temporary restrictions on the drillng of new wells andthe deepening of existing wells in the Baldwin Hils Zoned District andinitiate a zoning study to consider potential additional permanentregulations of these historical oil and gas production operations in thatarea, including a determination of the appropriate environmental review tobe required. BH009278.

In August 2006, the County extended the Emergency Ordinance to June 26, 2007.

BH009300-309. The County's November 2006, Baldwin Hills Oil Field Operation Zoning Study

("Zoning Study") found that the existing County Zoning Code needed to be revised to address

4 Because a portion of the Oil Field is also parially located within Culver City, Culver City hasseparate jurisdiction over the operations occurring within Culver City. FEIR-05900, 5901, 5913.As acknowledged by the County "The preparers agree that Culver City would need to make itsown independent evaluation to determine if the City can use the environmental document or if theCity needs to undertake its own evaluation to determine what impacts could occur from driling inits jurisdiction." FEIR-0590 1.14314-00017/1712188.1 7


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residents' serious concerns for their health and safety and to protect against more incidents like

the Noxious Gas Releases. The "draft" Zoning Study (which was never scheduled for a public

hearng) recommended creating a zoning overlay district, aka the CSD, to "provide a

discretionar review of the oil and gas field operations, which would require that an

environmental document be prepared under CEQA reporting requirements" and to give PXP "the

benefit of a one-time discretionar process where the impacts and issues are addressed and all

futue operations are considered and conceptually approved." BH027676. Thus, the County

concluded that an "environmental impact report (EIR) would be prepared for the CSD and the

impacts of the oil field activities would be thoroughly evaluated." BH009621; see also

BH022168.

On March 6, 2007 (nine months after the initial adoption of the Emergency Ordinance),

PXP submitted its CSD application to the County. BH004052-53. But PXP's application did not

include the draft CSD. BH009928-40,45. On May 29, 2007, the Board extended the Emergency

Ordinance for a final year (see GOy'T CODE § 65858) and imposed a total ban on new driling

until the CSD's completion effective June 27, 2007. BH003456-3552. According to the

accompanying staff report, the County was drafting its own CSD concurrent with the EIR process

"to establish permanent land use regulations, procedures and development standards to assure that

futue oil field operations are compatible with the health and safety of surounding residential

neighborhoods." BH003534-35.

It was not until June 28, 2007 (exactly one year after initially adopting the Emergency

Ordinance) and shortly after the County baned all new drilling, that the County finally issued the

Notice of Preparation ("NOP") for the EIR. BH011976. Although the County received

numerous NOP comment letters (BHOI2020-100), the Draft EIR ("DEIR") failed to address the

vast majority of the NOP comments and concerns, including the importance of an accurate project

description, the County's failure to draft its own CSD for the EIR to study, and suggested project

alternatives.

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D. The County Releases the DEIR Only Days Before the Expiration of theEmergency Ordinance

The County did not release the DEIR until June 19,2008 - a mere 7 days before the

expiration ofthe third Emergency Ordinance. BH018847. On July 1,2008, PXP sent a letter to

the County offering not to initiate any new drilling applications through October 21,2008, based

on the County's "commitment. . . to move expeditiously through the public comment period and

public hearing process." BH023096-97.5 Thus, because the Emergency Ordinance had expired

on June 26, 2008 and could not be renewed (GOY'T CODE § 65858), from the moment the County

released the DEIR, the County was rushing to end the public comment period, prepare responses

to comments, issue the Final EIR, and adopt the CSD. See BH006810. Despite numerous

requests from public agencies and the general public to lengthen the DEIR comment period due to

"unusual circumstances" pursuant to Guidelines § 15105(a), the County refused to extend the

deadline for public comments. FEIR-05567, 5664, 5707, 5708. The County circulated the

controversial and highly techncal 1,400-page DEIR for public comment for only sixty (60) days.

BH018848.

Overlapping with the County's rush to complete the EIR, the County Plannng

Commission held six public hearings on the EIR and CSD, beginnng on August 2, 2008 and

following in rapid succession on August 14, August 27, September 10, October 1, and October 8,

2008. FEIR-00028; BH003998, 4199,5469, 7928, 8466-67, 8864. As discussed below, the

County's CSD continued to change throughout this compressed timeline. Members of the public,

including representatives of Petitioners, attended, testified and submitted written comments at

these hearings. See, e,g. BH004002, BH005346, BH008364, BH008803, BH009186. Numerous

and substantial comments on the DEIR were also submitted to the County, including from

Petitioners. FEIR-05652-56. The County issued the EIR shortly before the final Planng

Commission hearing in October 2008. FEIR-OOOOI. At their last hearing, the Planing

Commission adopted a resolution recommending that the Board certify the EIR and adopt the

CSD. BH002066-74.

5 Supervisor Burke was also vacating her seat after the November 2008 general election.


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E. The DEIR Reviews a CSD Completely Different from the One UltimatelyAdopted

The CSD the County ultimately adopted ("County CSD") was substantially different from

the CSD studied in the DEIR. Although the County intended to prepare its own CSD all along

(BH003534-35), the DEIR studied only the CSD submitted by PXP, and none of those drafted by

the County. FEIR-00145. Moreover, PXP declined to include in its draft CSD many provisions

the County suggested. BH004234-38.6 The County did not release its own draft CSD until

August 13th - almost two months after the County released the DEIR. BH024158. The County

then issued a series of revised drafts of the County CSD in rapid succession prior to its adoption

on October 28,2008. BH005474-539; 7971-8046; 8619-90; 8878-953; 2076-148; 1893-988.

Ultimately, the County revised the CSD at least six separate times from the original CSD

proposed by PXP and studied in the EIR including key substantive revisions to the CSD after the

County Board certified the EIR (discussed below). The Planing Commission Chairman

requested several more months to study the CSD (BH006809), but his request was ignored.

F. The County Amends the CSD After the Board Certifes the EIR

The Board held the last two hearings on the CSD on October 21 and October 28,2008.

BHOOI886,2260. At the end of the first hearng, Supervisor Burke made a motion to certify the

EIR, adopt the Statement of Overriding Considerations ("SOC"), and amend the County's draft

CSD in certain important respects, most of which were objectionable to the community.

BH022167-76. Among other things, Supervisor Burke's last minute amendments included:

. Allowing up to 600 new wells to be drilled by ministerial permits without regard

to whether any existing wells have been abandoned (BH002028) - even though the EIR studied a

net gain of only 453 wells (FEIR-OOI72, 179)/

. Adding a new "modification" procedure that would allow variances to be granted

by County staff from the requirements of the CSD on an administrative basis;

6 A coalition of community groups, known as the Greater Baldwin Hils Allance ("GBHA"), also

prepared and submitted a draft CSD to the County, but the County did not study the GBHA CSDin the EIR. BH007927-00739-783.7 This was the first time the County quantified the number of wells the CSD would authorize by

ministerial permit.14314-00017/1712188.1 10


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. Requiring County staff to develop an "implementation plan" after adoption of the

County CSD, instead of incorporating mitigation measures recommended by the EIR into the

CSD (see Brief § IVD infa);

. Allowing the troublesome existing gas plant flare to remain on-site;

. Deleting the requirement for a periodic 5-year audit of the condition and

operations of the Oil Field to assess the CSD's effectiveness; and

. Eliminating requirements that would otherwise ban unsightly equipment storage.

BH002024-33.

Supervisor Burke's proposed amendments were passed, and County staff was directed to

prepare them. BHOOI891,2024. None of these amendments, which are potentially harmful to

the surounding communities and natural environment, was previously considered or discussed by

the Planing Commission, nor were they addressed in the EIR.

On October 24, 2008, Petitioners made a written request that the amendments be referred

back to the Planng Commission for consideration before adoption of the amended CSD.

BH027720-27. Petitioners further insisted that the County revise the CSD to accurately reflect

the project studied in the EIR. Id. Specifically, the EIR studied a net increase of only 453 wells,

but as a result of the untimely amendments, the CSD allows an increase of up to 600 non-

discretionar wells without regard to whether any existing wells are abandoned.8 BH027722.

Moreover, the EIR did not clearly inform the public that the County had no intention of

conducting any fuher environmental review of future drilling permits.9

Ignoring these requests, the Board adopted the revised CSD on October 28,2008.

BHOOI890. Supervisor Yaroslovsky felt it would be a "riverboat gamble" were the Board to

ignore PXP's threat to immediately pursue new driling applications ifthe CSD was not adopted

8 Based on PXP's input, the EIR studied a net increase of 453 wells within the CSD over the next

20 years. After significant public outcry, PXP published and mailed to area residents a brochureexplaining PXP's official positions on the CSD, the EIR, the Oil Field, and PXP's intentions. Inthis brochure, PXP assured the public: "PXP estimates on average: 15-20 new wells operatingeach year (with 7-8 (existing) wells closing each year)." BH025011.9 The ErR states: "When and if PXP applies to the County or other regulatory authorities, these

permit applications will have to be reviewed and could be subject to additional environmentalreview under CEQA if the permits involve a discretionary action." FErR-00I09-110.

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in October. BH003157. The County Planing Director offered a similar warng, "(W)e are at

risk here. We are now at the mercy of the operators (i.e., PXP) . . . with respect to what they can

or canot do." BH006814. On October 29,2008, the County posted its Notice of Determination.

BH020251. Four lawsuits were timely filed challenging the EIR and CSD, which the Cour later

consolidated. PUB. REs. CODE § 21167; see also GUIDELINES § 15112.

III. STANDARD OF REVIEW

The EIR is "the hear of CEQA" and an "environmental 'alar bell' whose purpose it is to

alert the public and its responsible officials to environmental changes before they have reached

ecological points of no return." Laurel Heights Improvement Ass 'n v. Regents of Univ, of

California, 47 CaI.3d 376,392 (1988). It serves to ensure that agencies "take all action necessary

to protect, rehabilitate, and enhance the environmental quality of the state," and "to demonstrate

to an apprehensive citizenr that the agency has, in fact, analyzed and considered the ecological

implications of its action." Id

In reviewing an EIR, the court must determine whether the agency committed a

prejudicial abuse of discretion either by failing to proceed in a manner required by law or by

reaching a decision that was not supported by substantial evidence. PUB. REs. CODE § 21168.5;

Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova, 40 CaI.4th 412,426

(2007). Whether the agency failed to proceed in a manner required by law is a question of law

that the court determines de novo. Vineyard, 40 CaI.4th at 435. The failure to provide

information required by CEQA is a failure to proceed in a maner required by law. Save Our

Peninsula Comm. v. Monterey County Bd of Supervisors, 87 CaI.Appo4th 99, 118 (2001); Kings

County Farm Bureau v, City of Hanford, 221 CaI.App.3d 692, 712 (1990) ("A prejudicial abuse

of discretion occurs if the failure to include relevant information precludes informed decision

makng and informed public participation"). Similarly, "( c )ertification of an EIR which is legally

deficient because it fails to adequately address an issue constitutes a prejudicial abuse of

discretion ..." Citizens to Preserve the Ojai v. County of Ventura, 176 CaI.App.3d 421, 428

(1985).

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Under the substantial evidence standard, the court does not determine whether the

agency's factual determinations were correct, but only whether they were supported by

substantial evidence. Laurel Heights, 47 CaI.3d at 392-393. Nevertheless, the agency "bears the

burden of affirmatively demonstrating that, notwithstanding (the) project's impact on the

environment, the agency's approval of the proposed project follow(s) meanngful consideration of

alternatives and mitigation measures." Mountain Lion Found. v. Fish & Game Comm 'n, 16

CaI.4th 105, 134 (1997). CEQA also requires that an EIR contain a statement "indicating the

reasons for determining that various effects on the environment of a project are not significant

and consequently have not been discussed in detail in the environmental impact report." PUB.

REs. CODE § 21100. A "bare conclusion" does not satisfy this requirement because "(m)ere

conclusions simply provide no vehicle for judicial review." Protect the Historic Amador

Waterways v. Amador Water Agency, 116 CaI.Appo4th 1099, 1112 (2004) (citations omitted).

CEQA's requirements must be strictly enforced. "Only by requiring the (agency) to fully

comply with the letter of the law can a subversion of the important public puroses of CEQA be

avoided." Mira Monte Homeowners Ass 'n v. County of Ventura, 165 CaI.App.3d 357, 366

(1985). Finally, the certification of a legally deficient EIR must be set aside regardless of

whether compliance with CEQA would have resulted in a different outcome. Citizens to Preserve

the Ojai, 176 CaI.App.3d at 428.

iv. THE EIR DOES NOT COMPLY WITH AND is IN VIOLATION OF CEQA

A. The EIR Has An Inadequate Project Description

The importance of accurately describing the "project" has been stressed in the case law.

A curailed or distorted project description may stultify the objectives ofthe reporting process. Only through an accurate view of the project mayaffected outsiders and public decision-makers balance the proposal'sbenefit against its environmental cost, consider mitigation measures,assess the advantage ofterminating the proposal (i.e., the "no project"alternative) and weigh other alternatives in the balance. An accurate,stable and finite project description is the sine qua non of an informativeand legally suffcient EIR. County of Inyo v, City of Los Angeles, 71

CaI.App.3d 185, 192-93 (1977).

We reiterate -- an accurate, stable and finite project description is the sine quanon of an informative and legally sufficient EIR. The defined project and notsome different project must be the EIR's bona fide subject. Id. at 199.

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. An accurate project description is necessar for an intelligent evaluation ofthe potential

environmental effects of a proposed activity. McQueen v, Board of Dirs" 202 CaI.App.3d 1136,

1143 (1988) (disapproved on other grounds in Western States Petroleum Ass'n v. Superior Court,

9 CaI.4th 559 (1995)). The EIR in this case fails to satisfy the requirements for an adequate

project description for two independent reasons.

1. The EIR Failed to Describe the Project Adequately Because it Described the

Project as a Regulatory Scheme Rather than as the Furher Development andExpansion of the Oil Field

The "project" in this case is described in the EIR as a "Communty Standards District,"

which the County described as "a set of development standards." FEIR-00027. The EIR

characterizes the Project's purpose as being, "to reduce the environmental impacts of future

development at the Inglewood Oil Field though the establishment of permanent development

standards, operating requirements and procedures."!d. The EIR acknowledges that this

approach is atypical: "A typical EIR would evaluate the environmental impact of the proposed

project... in this case the CSD by itself would not result in any physical change of the

environment." Id.

CEQA is undeniably triggered for proposed new land use regulations. PUB. REs. CODE §

21080(a); see GUIDELINS § 15378.10 Thus, in some instaces it is entirely appropriate to prepare

an EIR on a proposed zoning ordinance, specific plan, or regulation. See e.g., Rio Vista Farm

Bureau Ctr. v. County of Solano, 5 CaI.App.4th 351 (1992) (hazardous waste management plan);

City of Carmel- By- The-Sea v. Board of Supervisors, 183 CaI.App.3d 229 (1986) (rezoning). But

when the zoning or other regulation encompasses a development project, the "project" described

in the EIR must be the development project, not the regulation.

Where the lead agency could describe the project as either the adoption ofa paricular regulation. .. or as a development proposal which wil besubject to several governental approvals. .., the lead agency shalldescribe the project as the development proposal for the purpose ofenvironmental analysis. Guidelines § 153 78( d) (emphasis added).

11

10 The CEQA Guidelines ("GUIDELINES") are located at California Code of Regulation, Title 14,

15000 et. seq.llGUIDELINES § 15378(a) provides in pertinent par: '''Project' means the whole of an action,

which has a potential for resulting in either a direct physical change in the environment, or areasonably foreseeable indirect physical change in the environment, and that is any of the14314-00017/1712188.1 14


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1 Simply put, if a proposed zoning ordinance or land use regulation covers numerous

2 unrelated projects, then it is appropriate for the "project" to be described as the regulation. See,

3 e.g., Rio Vista, 5 CaI.Appo4th 351 (approving regulations for siting hazardous waste facilities).

4 But if the zoning ordinance is the first step in approval of a development proj ect, then the

5 "project" must be described as the development project itself and not the regulation. Citizens

6 Ass'nfor Sensible Dev. v, County of In yo, 172 CaI.App.3d 151, 165 (1985); see also City of

7 . Carmel-By-The-Sea, 183 CaI.App.3d at 242, 244 (zoning change should analyze the development

8 project).

9 In this case, the actual project is PXP's intended future development and expansion in the

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CSD area over the next 20 years. As the EIR reports, PXP plans to drill an average of

approximately 53 wells a year. This translates to an additional 1065 wells that would be driled

over the next 20 years.12 Up to 3 driling rigs could operate at a time. Such drilling occurs 24

hours a day for up to 30 days per well. Wells could be up to 10,000 feet deep. Substantial

supporting infrastructure would also be built. FEIR-00163, 172, 173.

As required by Guidelines § 15378(d), the EIR should have described the "project" as

PXP's planed future development in the CSD area. The failure to properly identify the Project

as PXP's planed future drillng and related infrastructue, had a profound impact on public and

agency review ofthe EIR and constituted an abuse of discretion under CEQA. See FEIR-06353.

19 First, this flawed project description facilitated PXP's strategy to use the CSD as a device

20 to avoid CEQA review of its development project. Prior to the CSD, neither the County nor

21 DOGGR was undertaking any meaningful environmental review of PXP' s driling in the

22 County's jurisdiction. See Brief § IIC infra. Thereafter, according to the County Zoning Study,

23 the CSD was to provide PXP with "the benefit of a one-time discretionary process where the

24 impacts and issues are addressed and all future operations are considered and conceptually

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following: (1) An activity directly undertaken by any public agency including. . . enactment. . .of zoning ordinances, and ... (3) An activity involving the issuance to a person of a lease,

t:ermit, license, certificate, or other entitlement for use by one or more public agencies."2 The County approved version of the CSD contemplated a maximum of 600 additional wells

without seeking a CUP, but would permit a higher number of additional well if approved under aCUP procedure. BHOO 1960-61.


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approved." BH027676 (emphasis added). Therefore, the County contemplated no further

meanngful environmental review for at least the next 20 years. In tu, DOGGR would rely

upon the EIR to assume that sufficient environmental review had been done on permits in the

CSD area. PXP has even attempted to use the EIR to constrain DOGGR's and Culver City's

review of drlling applications outside of the County's CSD area.13

In fact, it appears that under the CSD, the County intends to conduct only a ministerial

review, and does not claim any discretion to deny new drillng applications that comply with the

CSD. See FEIR-00163; BH001959. Under the CSD as adopted, almost all futue permits and

proceedings will qualify for Director's Review under a ministerial process not subject to any

fuher CEQA review. PUB. REs. CODE 21080(a); see also GUIDELINS § 15268; FEIR-00163. If

PXP is successful, then CEQA review ofPXP's 20 year development project and the many

mitigation plans the CSD left for later formulation wil never occur.

Second, improperly identifying the CSD as the "project" has had a dramatic effect on the

discussion of the project and alternatives. The ErR fails to ask the fudamental question of

whether the County should permit futue drlling of 600-1 000 oil wells in this urban environment.

The EIR treats ongoing and increased drilling as afait accompli and merely evaluates proposed

measures to regulate future driling. The EIR states the "purose of the CSD is to reduce

environmental impacts of futue development," rather than admitting the true fact that the purose

of the CSD is to entitle futue development. FEIR-00027. In doing so, the EIR discouraged

public comments on the fundamental questions of whether new drillng should be permitted at all,

and if so, how much. See e,g., FEIR-05944-45. Thus, the alternatives analyzed in the EIR were

short-circuited. See Brief § IVF infa. None of the alternatives focuses on whether there should

be additional drilling, or the amount of drilling; they instead consider just the County's procedure

for approving the futue expanded development that the County treats as inevitable. Thus the "no

project" alternative was miscast as "no regulation" rather than the "no fuher development"

13 For example, in the Related Action, LASC Case No. BS 122799, pending before this Court,

PXP has claimed that Culver City and DOGGR are bound by the County EIR.14314-00017/1712188.1 16


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alternative that it should have been, and a "no fuher development" alternative was entirely

omitted from the EIR.

Rio Vista Farm Bureau Center is an instructive contrast to this case. 5 CaLApp.4th 351

First, in Rio Vista, the plan encompassed the entire County, not a limited area controlled by a

single developer. Here, PXP was the applicant for the CSD and was the only developer to which

it applied. Id. at 371. Second, in Rio Vista, there was actually an alternative that included "no

facilities" within the County. Id at 378. Thus, regardless of whether the "no facilities"

alternative was deemed the "no project alternative," the public had the opportty to compare the

impacts of a no physical project alternative. Id. at 366. Here, in contrast, a "no further

development" alternative was never analyzed or considered in any form. Third, and most

importantly, the ErR in Rio Vista was intended to serve as a programatic EIR that would form

the basis for a future tiered EIR. Id. at 371. Solana County committed to preparing project level

EIRs once facilities were proposed for specific locations within the county -- a fact repeatedly

emphasized by the Cour. Id. at 367,371,372,373,375. Because of the county's commitment to

further CEQA review, the Rio Vista court specifically found, "The Plan is not a project

development proposal which contemplates additional development. . . without fuher

consideration of environmental consequences or upon issuance of a negative declaration." Id at

372. The Cour found, "The County has not impermissibly approved a project which envisions

future action without future environmental review." Id. at 373. In contrast, the EIR on the CSD

is not intended to be a programatic or tiering ErR. FEIR-00I09. The County does not intend to

perform any more CEQA review when the plans required by the CSD are submitted or when

driling permit applications are filed. See id. The CSD purports to allow the driling of 600 new

wells without any further CEQA review.

The ErR cannot be considered a programatic or tiering EIR, but should be considered a

project level ErR with a fundamentally flawed project description. GUIDELINS § 15378(d). The

County has impermissibly granted the final discretionary approval to a development project

authorizing massive future development in the CSD area without an EIR that properly focused on

that development project and without providing for any further meaningful environmental14314-00017/1712188.1 17


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review. The County abused its discretion and the certification of the EIR and the adoption of the

CSD should be rescinded. PUB. REs. CODE § 21168.9.

2. The EIR Failed To Study The County's Proposed CSD And Instead Studied A

"Strawman" CSD Written By PXP, The Party To Whom The Regulations AreDirected

Even as a'purported program EIR, the EIR did not study the County CSD and instead

studied the PXP CSD, which was self-drafted by the pary to be regulated. See FEIR-06073.

Indeed, the County CSD, the regulation actually being considered by the County, was not

released until shortly before the end of the DEIR public comment period. Moreover, there were

substantial differences between the 22-page PXP CSD and the 96-page County CSD. See id.;

BH027725-26. This includes the fact that the County CSD allows a net increase of 600 new

wells to be established by ministerial permits while the EIR only studied a net increase of 453

wells. Compare BH002028 with FEIR-00172, 179. Furhermore, the County CSD changed

throughout the public hearing process, and these changes were difficult for the public and

decision-makers to follow, making the proposed project a moving target. Finally, the County

refused to revise and recirculate the EIR after the County CSD increased by nearly one third the

intensity of development authorized by the CSD. See BH027721.

a. The EIR studied the wrong CSD

Although the NOP stated that the County would draft its own CSD (BHOI1973), the EIR

only studied PXP's proposed 22-page "strawman" CSD (BHOOOI68-90). See County of Inyo, 71

CaI.App.3d at 199 ("The defined project and not some different project must be the EIR's bona

fide subject") (emphasis added). Despite the County's intention to write the CSD and not adopt

PXP's draft, the EIRnever studied the County's CSD.14

b. There are substantial differences between the PXP CSD and the County CSD

Some of the important differences between the PXP CSD and the County CSD include:

. Intensity. Based on PXP's application, the EIR assumed a maximum net increase of 453

additional wells over the next 20 years. But the County's CSD authorizes 600 new wells by

14 The County's Planning Director admitted, "The draft that we have is substantially different. I

think it is clearly put on the record. This is the County's draft. This is certainly not theApplicant's draft." BH006806.14314-00017/1712188.1 l8


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ministerial permits over the next 20 years without regard to any of the well abandonments

assumed in the EIR. Compare FEIR-00172 & 00179 with BHOOI960.

. Fire/sound-prooímg. The PXP CSD required all drllng conducted within 500' of

residences to be fully enclosed with fire-resistat and soundproofing material; the County CSD

does not, without EIR consideration of the environmental effects of the change. Compare FEIR-

00154 with BH001904 & 001919.

. Re-abandonment. The PXP CSD required that upon conversion of any portion of the Oil

Field to a different use, all wells on the parcel would be abandoned or re-abandoned to curent

State standards; the County CSD contains no such requirement, again without EIR consideration

ofthe environmental effects of the change. Compare FEIR-00162 with BHOOI947.

. Emitted gases. The PXP CSD prohibited intentionally buring gas emission by open

flame in lieu of venting; but the County CSD takes the opposite approach and mandates the

burning of such gases when released, yet again without EIR consideration of the environmental

effects of this change. Compare FEIR-00159 with BHOOI907-1908.

. Submission of Future Plans. The PXP CSD did not contemplate deferral of mitigation.

But the County CSD contemplates PXP's futue preparation and submission of some 25 plans for

the Oil Field, the approval of which will be left up to the County Planng Director without

fuher environmental review. is Compare BH001903-1947 with BHOOI971-1985.

. Purpose. The PXP CSD states the purose of the CSD is "to permit continued economic

recovery of oil, (g)as and other hydrocarbon substances." The County CSD contains no such

statement of purose and states the purose ofthe CSD is "to protect the comfort, health, safety,

is Under the CSD Ordinance, such plans include a community alert notification system,

emergency response plan, odor minimization plan, air monitoring plan, meteorological stationdesign, fugitive dust control plan, amortization and abandonment schedule for wells locatedwithin the new setback area, accelerometer installation design, erosion control plan, accumulatedground movement study program, ground movement monitoring plan, driling quiet mode plan,special status species and habitat protection plan, biological resources emergency response plan,construction treatment plan as to cultual/historic resources, landscaping/visual screening/irrigation plan, recycling plan, water management plan, ground water monitoring plan,unused/abandoned equipment removal plan, hazardous material business plan, anualdrilling/redriling/well abandonment/well pad restoration plans, tan leak program, environmentalquality assurance program, and safety inspection/maintenance/quality assurance program.

14314-00017/1712188.1 19


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1 and general welfare of people living, working, and recreating in the surrounding areas." Compare

2 FEIR-00145 with BHOOI894.

3 The proposed CSD changed throughout the hearing processc.

4 Throughout the EIR process, the proposed CSD was constantly changing, including at

5 least six different versions by the County. 16 Meanwhile, PXP issued a brochure in the midst of

6 the EIR comment period, promising an average of only 15-20 new wells per year instead of the

7 average of 53 new wells per year studied in the EIR. BH025008-11. These constant changes

8 made it impossible to evaluat~ the proposed project. See County of In yo, 71 CaI.App.3d at 197

9 ("The incessant shifts among different project descriptions do vitiate the . . . EIR process as a

10 vehicle for intellgent public paricipation").

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d. The County refused to revise and recirculate the EIR after expanding theallowable intensity of development in excess of the project studied in the EIR

The impacts of allowing by ministerial permit up to 600 new wells without regard to

abandonment of existing wells was not considered in the EIR. See San Joaquin Raptor Rescue

Center v. County of Merced, 149 CaI.App.4th 645, 655 (2007) (the EIR project description

unawflly understated the increases sought in mine production). Potentially significant adverse

impacts of increased intensity of development include: (a) increased risk of subsidence; 17 (b)

increased water usage for additional well injections; (c) additional noise from the operation of

19 more wells, including well repairs, maintenance, and workovers; (d) increased risk of spillage

20 and leakage, (e) need for more storage tans, (f) possible need for additional flaring, including the

21 continued use ofthe existing antiquated and problematic flare, (g) heightened hazard of

22 earthquakes, (h) need for additional security and lighting, (i) increased greenhouse gases,

23 G) further reduction of nomenewable oil and gas resources, and (k) decreased possibility of park

24 expansion.

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16 There were four different versions presented to the Planing Commission and two presented to

the Board. BH005474-539, 7971-8046, 8619-90, 8878-953,2076-148, 1893-988.17 The Planing Commission Chairman stated: "I think there is a very strong nexus between the

amount of oil produced and the potential for subsidence." BH006807.14314-000171712188.1 20


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1 The EIR Lacks an Adequate Consideration and Discussion of the SignificantEnvironmental Impacts to Air Quality, Human Health Risk, Risk of Upset,Noise and Vibration, GHGs and Environmental Justice

B.

2

3 "The fudamental purpose of an EIR is 'to provide public agencies and the puhlic in

4 general with detailed information about the effect which a proposed project is likely to have on

5 the environment.'" Vineyard Area Citizens, 40 CaI.4th at 428 (citations omitted). As discussed

6 below, the EIR utterly failed to satisfy this purose in the impact analyses for air quality, human

7 health risk, risk of upset, noise and vibration, greenhouse gases and environmental justice.

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1. Air Quality

The EIR improperly and arbitrarly includes the effects of drillng operations in 2006 in

the baseline for the air quality impact analysis, while properly excluding those driling operations

from the baseline for "noise, vibration, human health risk, risk of upset, geology, water resources,

biological resources, cultural resources, fire protection/emergency response, and

transportation/circulation" in order "to capture the full impacts of new well driling and well

redrils." FEIR-00190. By including 2006 driling operations in the baseline for the air quality

impact analysis, the EIR overstated the baseline emissions and thus dramatically understated the

projected air quality impacts. Additionally, the EIR failed to adequately assess the potential air

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quality impacts to nearby residences (i.e., the localized impacts) by, inter alia, using the

overstated baseline and failing to assess impacts to residents who wil be within 200 meters of

19 future driling.

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a. The EIR Should Have Excluded 2006 Driling Operations From the Baselinefor Air Quality Impacts

22 Without an adequate baseline description, "analysis of impacts, mitigation measures and

23 project alternatives becomes impossible." County of Amador v. El Dorado County Water Agency,

24 76 CaI.Appo4th 931,953 (1999); see also GUIDELINES §§ 15125(a) & 15126.2(a). The EIR

25 inappropriately included as par of the baseline for air quality impacts drilling operations that

26 occured in 2006. FEIR-00269.18 Not only was this decision not supported by substantial

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2818 Additionally, the EIR's baseline discussion is internally inconsistent and incomprehensible.

See FEIR-05763. For example, it uses the conditions in existence in April and May 2007 (when14314-00017/1712188.1 21


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evidence, it actually conficted with statements made in the EIR and in response to comments

regarding the need to exclude such operations from the baseline for other impacts because "not

all impacts would be captured had driling been part of the baseline" and "less mitigation

measures would have been developed to mitigate driling impact." FEIR-005916-l7

(emphasis added). The EIR acknowledged that had drilling been included in the baseline "there

would have been limited changes to the existing physical conditions associated with futue

drillng activities" and "the removal of driling from the baseline (e.g., the physical conditions)

for a number of issue areas allowed the analysis of potential future oil field development to

captue the full impacts of new well driling and well redrils." FEIR-00190. Despite the

acknowledgment that past drilling canot be included in a valid baseline (id.), the County

arbitrarily failed to exclude 2006 driling operations from the air quality baseline. Id. The

County cherry-picked an earlier time to minimize the impacts of new drillng.

When confronted with criticism regarding drillng emissions in the baseline (FEIR-06123-

25), the County responded that the 2006 driling operations needed to be included because "the

existing environmental conditions would clearly include PXP's operations." FEIR-06181. The

EIR itself demonstrably rebukes the County's position. The EIR acknowledged that drillng must

be excluded from the baseline for "noise, vibration, human health risk, risk of upset, geology,

water resources, biological resources, cultural resources, fire protection/emergency response, and

no driling was occuring nearby) as the baseline for noise (FEIR-00541) on the grounds that itrepresents the "existing noise levels at the time of the NOP" (FEIR-06201), without reconcilinghow both 2006 and 2007 can be considered the existing physical environmental conditions at thetime the NOP was issued. With respect to the baseline discussion for air quality impacts, theinformation contained in the text and tables conflict. For example, EIR § 4.0.1 states that for "theair quality analysis the baseline emissions from the oil field were taken as the 2006 emissionsreportea to the SCAQMD" (FEIR-00262); however, the EIR used as the baseline for "FixedFacility Emissions" the 2005-2006 reporting period. FEIR-00269. Footnote 4 to Table 4.204states that the baseline for well pad grading was based on the actual fuel use number for 2006(Id.); however, the text states that emissions "for well pad grading related to well driling arebased on the actual emissions estimated from fuel use for 2007 on a per well basis." Id. EIR §

4.0.1 states that the baseline for well workovers was "assumed to be the average from years 2006and 2007" (FEIR-00190); however, EIR § 4.1.1 states that "(e)missions from 2006 were used asthe baseline emissions for drillng and workover." FEIR-00269. These discrepancies render theEIR incomprehensible to determine what baseline period the County actually used. "Thedecisionmakers and general public should not be forced to sift through obscure minutiae orappendices in order to ferret out the fundamental baseline assumptions that are being used forpurposes of the environmental analysis." San Joaquin Raptor Rescue Ctr.,149 CaI.Appo4th at

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transporttion/circulation" (Id.) in order "to capture the full impacts of new well driling and well

redrills" (FEIR-00190 (emphasis added)) as is required by CEQA. The EIR gives no rational

explanation as to why it completely reverses position and includes driling in the baseline for air

quality. Thus, instead of assessing the "full impacts of new well drilling" for air quality, the EIR

ends up hiding those impacts.

When the NOP was issued in June 2007, all of the 2006 well drillng operations had long

since been completed and there are no continuing or future emissions from these operations.

These are not continuing operations, they are completed short-term discrete projects. Moreover,

the inclusion of earlier completed driling operations from 2006 does not represent the "existing

environmental conditions" when the NOP was issued as required in setting a baseline. Save Our

Peninsula Comm" 87 CaI.App.4th at 126; see also GUIDELINES §§ 15125(a) and 15126.2(a). The

conditions in existence in 2006 (FEIR-00190), were much different than when the NOP was

issued. BHOI1976-12005; id. At the time the NOP was issued, "drilling had stopped as a result

of the Emergency Interim Ordinance." FEIR-00190; see also BH003533-37. But even if wells

were still being completed in June 2007 (which they were not), their emissions could not be

included in the baseline, just as past, completed, construction projects would not be included as

par of the baseline for new development. See FEIR-06123.

Each new well is a discretely permitted short-term project. The future drilling of hundreds

of new wells over the next 20 years was not a vested entitlement already possessed by PXP.

Unlike cases in which the applicant has a legal right to conduct ongoing operations based on a

previously granted permit, at the time of the NOP, PXP had not been granted any permit to dril

any new wells. 19 See e.g., Fairview Neighbors v, County of Ventura, 70 CaI.App.4th 238,240-41

(1999); Benton v. Board of Supervisors, 226 CaI.App.3d 1467, 1477 (1991). The drillng of each

19 In the cases in which cours have allowed previously permitted activities to be considered aspar of the baseline, the project had already undergone environmental review. See FairviewNeighbors, 70 CaI.Appo4th at 240-41 (the maximum level of operations authorized by the existingpermit should be treated as the baseline for purposes of the EIR expanding the previouslypermitted project); Benton, 226 CaI.App.3d at 1477 (baseline could include that which theapplicant had the legal right to build under permits which had already been issued and on whichconstruction had already begun). Here, PXP's driling of future oil wells has not been permittednor previously subjected to CEQA review. See e,g., BH002026.14314-00017/1712188.1 23


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new well is construction that requires a separate permit from DOGGR. See e.g., PUB. REs. CODE

§ 3203. In the absence of the CSD, CEQA would have required DOGGR, as the lead agency, to

conduct environmental review each time DOGGR issued a new permit to drilI.20 County

Counsel, Elaine Lemke, confirmed durng the October 21, 2008 Board meeting that DOGGR

would be required to conduct CEQA review absent the CSD. BH003217. Indeed, late in 2006,

DOGGR finally stepped up to its responsibility and took lead agency status in approving a very

limited number of new well permits after it leared that the County was not conducting CEQA

review. BH007927-00423.

Even assuming arguendo, as the County asserts, that "PXP's operations are an existing,

legal use" under the prior zoning law (FEIR -06181), which is incorrect as to the drillng of new

wells, the County was stil required to compare the Project's impacts to a baseline that did not

include drilling. Woodward Park Homeowners Ass 'n v, City of Fresno, 150 CaI.App.4th 683

(2007). Under similar facts, the court in Woodward Park held that an air quality impact analysis

was inadequate because the lead agency was required, under a "two-baseline" approach, to

compare the project's impacts both to existing environmental conditions and to potential future

development allowed under the existing zoning law. !d. at 707-10. In City of Carmel- by- the-Sea,

the court held that an agency must consider impacts of rezoning on the existing physical

environment, rather than with a comparison of a project possible under old zoning. 183

CaI.App.3d at 246. Here, the existing physical environment is one without drillng because each

new well wil be drilled in a location where a well has not previously been driled.

Finally, the County's rationale for including driling and workovers as part of the baseline

because "of the continuous duration of operations" (FEIR-05913) is belied by the fact that there

have been historically several years in which no wells have been drilled. FEIR-00123, 125?1 In

20 The drilling of a vast majority ofPXP's new wells in 2006 and earlier escaped CEQA review

by DOGGR because DOGGR had assumed that the County was doing the environmental review.BH027675; see also BH007199-7229, 7244-45.21 The EIR also improperly used hypothetical conditions in establishing the baseline emissions for

assessing air quality impacts in violation of the requirement that the "impacts of the project mustbe measured against the 'real conditions on the ground.'" Save Our Peninsula Comm., 87CaI.Appo4th at 121; see also Woodward Park, 150 CaI.Appo4th at 707-08. For example, the dailyoperational baseline emissions for assessing air quality impacts (Table 4.204) was "based onestimates of peak equipment use," including the assumption that the "flare operates for the entire14314-000171712188.1 24


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1 any event, the County's choice of2006 as the baseline year certainly does not represent

2 "established levels of a particular use" (see San Joaquin Raptor Rescue Ctr., 149 CaI.Appo4th at

3 658) because the County chose as its baseline year, a year in which it admits there "was higher

4 than historical drillng." FEIR-06006. As commented by the SCAQMD, "(c)onsidering

5 historical driling activity at the Inglewood Oil Field the estimated baseline emissions in the Draft

6 EIR for the proposed project may not represent typical activity at the project site and likely

7 overestimates baseline emissions." FEIR-005996 (emphasis added).22 Indeed, over the last forty

8 years, the second highest number of wells (58 wells) was driled in 2006. FEIR-00125, 128. In

9 contrast, between 2000 and 2007 on average only 36 new wells were driled each year. FEIR-

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00123. Likewise, well workover rigs were used 325 days in 2006 - more than twice as many

days as workover rigs were used in 2005. FEIR-00128. As the County failed to support its

baseline decision by substantial evidence, the EIR is inadequate. San Joaquin Raptor Rescue

Ctr" 149 CaI.App.4th at 659.

b. The County Presented an Arbitrarily High Air Quality Baseline to Understate

the Project's True Impacts

As a result of using an improper baseline, the EIR concealed in the baseline substantial

impacts from drilling, and used that improperly elevated baseline as support for its finding that

the air quality impacts would not be significant because the Project's impacts would not exceed

the aberrant "baseline." Only in this way could the EIR find that air quality impacts from driling

hundreds of new wells over the next 20 years would not result in significant impacts. FEIR-

00287; see FEIR-05754. The EIR assumed (FEIR-05921) that "(t)he same number of drillng

rigs would operate on the peak day (three rigs) as in 2006" and that "peak day emissions from

day." FEIR-00268, 06148 (emphasis added). The EIR also used hypothetical emissions for theoffsite emissions baseline by calculating the baseline "based on the number of employees andcontractors and the number oftruck trips estimated in the Project Description, Section 2.0."FEIR-00268 (emphasis added). Because the baseline is based on the conditions projected tooccur under the Project, any analysis of the impacts from the Project compared to the baseline isilusory.22 In response to comments on this issue (FEIR-005748), the County asserted that it used thistimeframe because there can be "fluctuation in production, maintenance and driling activities."FEIR-005916-17. However, this "unsubstantiated opinion or narative does not constitutesubstantial evidence" as to why 2006 is the most representative data for the oil field. See SaveOur Peninsula Comm., 87 CaI.App.4th at 122, citing GUIDELINES § 15384(a).


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drilling would remain the same as in the baseline." FEIR-00286,06006. Having established a

deceptively high baseline, the EIR unsurprisingly did not find any increase between the peak day

baseline drilling emissions (FEIR-00269) and the potential drilling emissions under the Project

(FEIR-00270). Compare FEIR-00269 with FEIR-00287. However, the comparison should have

been between a day without driling and a peak day with three drillng rigs because drilling

operations should not have been included as part of the baseline. See FEIR-06123-25.

The ramifications ofthe EIR's failure to fully quantify the air quality impacts from

drilling operations is fuher exemplified by comparing the peak daily emissions increase for

drllng had these operations not been improperly included in the baseline, to SCAQMD regional

significance criteria for NOx. The EIR estimates that the peak daily emissions for drilling alone

is 3 i 7 Ibs/day of NO x if mitigated. FEIR-00290. This is over five times greater than SCAQMD

significance criterion for NOx of 551bs/day. FEIR-00287. However, because the ErR improperly

used a baseline for drillng emissions of 348 Ibs/day (FEIR-00269) the "net change" in emissions

over the baseline for NOx was not greater than the threshold.23 By including prior driling

operations in the impact analysis, the EIR failed to consider the full impacts to the public and the

environment and avoided consideration of necessar feasible mitigation. See e,g., Kings County,

221 CaI.App.3d 692.

c. The EIR Failed to Adequately Assess the Potential Localized Air Quality

Impacts of Criteria Pollutants from the Project

The EIR failed to adequately assess the significance of localized air quality impacts

because the EIR only considered the localized increased emissions contrbution of the Project

compared to a Project-wide baseline which improperly included 2006 driling project emissions.

Moreover, the EIR did not follow SCAQMD methodology in assessing the localized impacts and

failed to consider localized impacts from driling operations. SCAQMD has developed as par of

23 "NOx is one of the main contributors to ground-level ozone, one of the most health-damaging

components of smog." BHOOI884-0065. N02, a component of NO x, can cause "respiratoryirritation and constriction ofthe airways, making breathing more difficult." FErR-00262."(S)tudies have found associations between N02 exposures and cardiopulmonar mortality,decreased lung fuction, respiratory symptoms and emergency room asthma visits." BH002701.14314-00017/1712188.1 26


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its environmental justice program a "localized" significance threshold methodology to "evaluate

the potential localized impacts of criteria pollutants from construction and operational activities."

FEIR-00278; see BHOOI885-02271. The localized significance thresholds represent the

maximum allowable concentrations of pollutants that will not cause or significantly contribute to

an exceedance of ambient air quality standards at the nearest sensitive receptor location. FEIR-

00278. Assessing a project's localized air quality impacts is central to determination ofthe true

impact to residents, and other sensitive receptors, located in the vicinity of the Oil Field. This is

especially important from an environmental justice perspective because residents living in the

Baldwin Hills area already have over twice the rate of chronic respiratory conditions compared to

the County as a whole. BH021243-45.

The Project's localized impacts should have been evaluated based solely on the specific

emission potential of new Oil Field sources and the distance to nearby residences. See

BHOOI885-02288-90; GUIDELINS § 15125(a); see FEIR-05754. This is because any new

construction or driling in a locality results in an increase in emissions at that location. The

baseline emissions for the entire Oil Field used by the EIR fails to provide any data regarding

exposure to a specific location caused by nearby driling and construction. Also, the EIR

considered only the delta between the Oil Field baseline and localized emissions, which masks

the fact that PXP's operations are already causing exceedances of the ambient standards (FEIR-

00290), that localized emissions will exacerbate the exceedances, and lead to the improper

conclusion that the Project's impacts are less than significant. Kings County, 221 CaI.App.3d at

718 (must consider cumulative impacts especially when there are exceedances).

Here, because the County used a baseline that included PXP's preexisting drilling-related

emissions, the EIR erroneously found that there were no localized significant impacts after

mitigation. FEIR-00290; see FEIR-05754. For example, the LST for NOx is 88 Ibs/day. FEIR-

00290. The EIR determined that after mitigation there wil still be 843 Ibs/day ofNOx. Id. This

means that even after mitigation the Project's operations emissions wil exceed the LST for NOx

by 755 lbs/day, which would be considered a localized significant impact. !d. However, because

the EIR used an erroneously infated baseline of788 Ibs/day for NOx the EIR determined that14314-00017/1712188.1 27


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because the "net change in emissions at the oil field" was only 55 Ibs/day, which is less than the

LST of 88 Ibs/day, there was no localized signficant impact. !d. When 2006 driling emissions

of 348 Ibs/day are subtracted from the baseline, the LST is exceeded manfold.

When confronted with the impropriety of comparng the Project's projected emissions to

preexisting conditions in assessing localized impacts, the County responded that it did not use a

baseline in comparng construction impacts to the LSTs. FEIR-05920. However, the County

provided no justification for why it included preexisting driling-related emissions (including pad

grading) from 2006 in the operational emissions analysis. FErR-05919-20. This is also

inconsistent with the public health risk analysis, in which the County concluded that "regardless

of the curent baseline, any estimated health risk indices that exceed the SCAQMD Rule 1401

thresholds will be considered significant." FEIR-00335. The EIR also used the incorrect receptor

distance (e.g., distance between the emission sources and residences) in determining the localized

impacts. BHOOI885-02289-90. The EIR only analyzed the impacts to residents from driling

operations located 200 meters away (FEIR-00287) when, under the CSD, such drilling could

occur within approximately 121 meters (BHOOI911). FEIR-00093; see FEIR-05755, 5763.

According to SCAQMD guidance for assessing localized impacts cited in the ErR. (FEIR-00278,

317), "( c ) are should be taken when estimating these distances since allowable emissions increase

rapidly with increasing downwind distance." BHOOI885-02290. By using the incorrect distance

between the operations and residences, the EIR found that there were no localized impacts, when

in fact there will be. 24 Thus, the EIR failed to serve one of its basic functions -- to identify

significant environmental impacts. PUB. REs. CODE § 21002.1(a).

24 For example, for PM 10, the ErR used the allowable emissions threshold of 14 Ibs/day for

projects occurring 200 meters away in assessing the localized impacts. FEIR-00280, 287.However, the threshold for projects occuring 100 meters away, as the CSD allows, is only 7Ibs/day. FEIR-00280. Had the EIR used the correct receptor distance of 100 meters, it wouldhave found a significant localized impact from PM 10, because the ErR determined that the "netchange" in PMI0 emissions after mitigation was 10 Ibs/day - 3 Ibs/day over the significancethreshold. FEIR-00290. "PM 10 may have adverse health impacts because these microscopicparticles are able to penetrate into the respiratory system. In some cases, the pariculatesthemselves may cause actual damage to the alveoli of the lungs or they may contain adsorbedsubstances that are injurious." FErR-00264.14314-00017/1712188.1 28


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2. Public Health Risk

The EIR's public health risk analysis was inadequate because the EIR failed to consider

the cumulative health risk from past exposure to toxic air pollutants as a result of living near the

Oil Field and did not consider the health risk from short-term exposure to high levels of air toxics,

such as hydrogen sulfide, as a result of releases similar to what occured in Januar and Februar

of2006. Additionally, the EIR used a cancer risk signficance threshold based on the assumption

that PXP will be required to use the best available control technology for toxics, even though

there is no evidence in the record that such technology will either be required or used. Finally,

the County failed to provide the underlying technical information necessary to determine the

accuracy of the public health risk assessment.

a. The Cancer Risk Signifcance Threshold Is Not Supported by Substantial

Evidence

The EIR relied on SCAQMD Rule 1401 to establish a significance threshold often in one

million for "maximum individual cancer risk" ("MICR"). FEIR-00335. The EIR fails to justify

the use of Rule 1401 as a surogate for the County makng a significance determination. FEIR-

00335; see, e,g. GUIDELINES §15064, 15064.7. SCAQMD Rule 1401 pertains to the permitting of

stationary sources and provides that sources which do not meet best available control technology

for toxics ("TBACT") cannot be permitted ifthe MICR is greater than one in one milion but if

TBACT is used then the MICR can be up to ten in one millon. BHOOI884-05738; SCAQMD

Rule 1401(d). There is no evidence that TBACT will be used paricularly with respect to mobile

equipment like drillng rig diesel engines, which the EIR identified as the greatest source of

increased risk. 25 FEIR-00320; see FEIR-05762. As there is no evidence that TBACT is either

required or wil be used, the correct significance threshold for cancer is no greater that one in one

milion even if Rule 1401 sets the correct stadard. FEIR-00335. Therefore, the County's

25 As the EIR indicates that drillng rigs will not be permitted as stationary sources, but ratherthrough the State's statewide permit for mobile equipment (see FEIR-00338), the drilling rigs andother mobile sources, such as construction equipment, wil not even be subject to Rule 1401 andnot regulated by SCAQMD. See FEIR-05912. While the EIR response to comments asserts thatmobile equipment will use TBACT, there is no evidence that mitigation of mobile sources wilmeet TBACT criteria. See SCAQMD Rule 140 1 (c)(2). The EIR implicitly concedes thatoperational sources do not meet TBACT requirements (but asserts, without support, that theMICR from such sources is less than mobile sources). FEIR-05912.14314-00017/1712188.1 29


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findings of insignficance are not supported by substantial evidence, because even after mitigation

the Oil Field will exceed that threshold by a factor of7.5. FEIR-00342.26

b. The EIR Failed to Adequately Consider the Cumulative Impact from Chronic

Exposure to Air Toxics

The EIR failed to consider the cumulative exposure of toxic emissions to nearby residents

caused by the Oil Field over the last several decades in assessing the impacts of futue toxic

emissions.27,28 FEIR-05741; see also FEIR-05728. The County's failure to consider the

cumulative health impacts from past as well as futue toxic emissions renders the EIR inadequate.

See e.g., Kings County, 221 CaI.App.3d at 718-721; Environmental Prot. Info. Ctr. v. Johnson,

170 CaI.App.3d 604 (1985) (prejudicial abuse of discretion not to consider cumulative impact of

past logging activities combined with proposed logging activities).

The County's response to comments on this point reflects its basic misunderstanding of

the obligation to consider cumulative impacts: the "scope of the health risk assessments involve

only current operations and the impacts of proposed future operations. Numerous factors could

contribute to past health effects in the basin, including dirtier mobile emissions from on-highway

trucks and vehicles, pre-SCAQMD emissions from industry in the basin, etc." FEIR-05903. In

conducting the impact analysis, the relevant inquiry is whether any additional amount of air

toxics should be considered signficant in light of the existing exposure. See Kings County, 221

CaI.App.3d at 718, 720. The "cumulative impact from several projects is the change in the

26 Also the FEIR found that the potential risk of cancer without mitigation is three times higher

than found in the DEIR and that the mitigated risk was almost twice the risk found in the DEIR(Compare FEIR-00332 with BHOI7708-00302). As discussed in Section V below, this warantsrecirculation of the EIR.27 Culver City commented that the EIR failed "to include past and future risk to long-term area

residents based on the historic air toxic emissions when there would have been significantly loweremission control requirements and significantly higher emitting equipment," including addressingthe health risks associated from past exposure to toxic air contaminants from the oil operationsthat have been ongoing for the past 85 years before there were any regulations. FEIR-05741; seealso FEIR-05728. Culver City's DEIR comments were supported by not only the expertise ofcity staff, but also a qualified environmental consulting firm retained by Culver City to assist withreview and comment on the DEIR. See FEIR-05741.28 A toxic air contaminant is "an air pollutant that may cause or contribute to an increase in

mortality or in serious illness, or that may pose a hazard to human health." FEIR-00321.According to the EIR, "toxic pollutant impacts are typically more localized than criteria pollutantimpacts." !d.14314-00017/1712188.1 30


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environment which results from the incremental impact of the project when added to other closely

related past, present, and reasonably foreseeable future projects." GUIDELINES § 15355. As held

by the Californa Supreme Cour, the "statutory injunction to assess 'the incremental effects of

past projects, the effects of other current projects, and the effects of probable future projects'

signifies an obligation to consider the present project in the context of a realistic historical

account of relevant prior activities that have had significant environmental impacts."

Environmental Prot. Info, Ctr. v, California Dep 't of Forestry & Fire Prot. ("EP ie'), 44 CaI.4th

459,524 (2008) (emphasis in original), citing PUB. REs. CODE § 21083(b)(2).

Individuals have lived in the vicinity of the Oil Field since as long as oil operations have

been conducted. BHOO 1884-1 0240-41. Long-time residents expressed concern regarding the

health impacts, including the cancer risk, from having lived near the Oil Field for so long. FEIR-

06304,06333,06366. Indeed, the morbidity/mortality rate is already higher as to breast cancer,

colorectal cancer, lung cancer and prostate cancer in the community within 1'l miles of the Oil

Field than in the County as a whole. BH021238-39.29 Studies have shown that chronic exposure

to low levels of ambient hydrogen sulfide from oil and gas operations can lead to health impacts

including "persistent physiological and neurological disturbances." BH007136. "(C)hronic

exposure to low level concentrations of hydrogen sulfide is associated with neurological

symptoms that include fatigue, loss of appetite, irritability, impaired memory, altered moods,

headaches and dizziness." BH007105. "Because people live near oil and gas sites, emissions of

H2S may be routinely compromising human health." BH007136.

While the EIR analyzed the health risk from future oil operations occuring over the next

70 years, it failed to consider the cumulative health risk from chronic exposure to historic

operations. FEIR-00340; see FEIR-05761. The EIR failed to consider the significance of the

additional futue toxic exposure taken cumulatively with decades of prior exposure. Kings

County, 221 CaI.App.3d at 718; see also BH001884-03797 (long term exposure to some

compounds "will result in an increased body burden relative to the typical toxicology

29 African Americans also suffer disproportionately from higher disease and mortality rates.

BH021237-58.14314-00017/1712188.1 3 I


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experimental design and in a potential lowering of the acute exposure needed to produce an

adverse effect"). Is the additional incremental exposure one which may provide the "tipping

point" that triggers cancer or other har? See Gray v. County of Madera, 167 CaI.Appo4th 1099,

1123 (2008). For example, according to the EIR, unitigated oil field operations would cause a

cancer risk of 30.2 in one milion - over three times greater than the threshold value of 10 cancers

in one millon. FEIR-00340. The acute risk would exceed the threshold value by over 10 times.

Id. As Oil Field operations have gone unmitigated for the past 85 years, these figures would, at a

minimum,30 be comparable to the health risks that residents have been exposed to over the past 85

years. However, in the cumulative impact analysis, the EIR does not even mention the

cumulative risk from the Project's impacts combined with past operations in violation ofCEQA.

FEIR-00346. An EIR "must reasonably include information about past projects to the extent such

information is relevant to the understanding of the environmental impacts of the project

considered cumulatively with other pending and possible futue projects." EPIC, 44 CaI.4th at

526. The EIR should have concluded the Project's cumulative health risks are significant.

c. The EIR Failed to Adequately Consider the Health Impact from Acute

Exposure to Relatively High Levels of Air Toxics

The health risk analysis also failed to adequately consider acute health impacts from

periodic releases of air toxics, including hydrogen sulfide. FEIR-00270; see FEIR-5730;

BH002477. Short-term exposure to relatively high levels of hydrogen sulfide can occur during an

accidental release. BH007100. "(W)ell blowouts, line releases, extinguished flares, collection of

sour gas in low-lying areas, line leakage, and leakage from idle or abandoned wells are sources of

documented accidental releases (of hydrogen sulfide) that have impacted the public, not just

workers at oil and gas extraction sites." BH007094. According to the EIR, "(d)urng driling,

pockets of gas can be encountered. This gas can be picked up by the circulating muds and

brought to the surface and released through the muds processing system." FEIR-00272. Such

events occurred in Januar and February 2006 (FEIR-00272; see Brief § IIB infra) when,

30 The cancer risk from the past operations occurrng over the last 85 years was likely greater than

shown in Table 4.3.6 because of historically relaxed or absent environmental regulations.14314-00017/1712188.1 32


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1 according to a SCAQMD investigation, "hydrogen sulfide was released into the atmosphere."

2 FEIR-00270,05874. "Hydrogen sulfide, even in small quantities, can be hazardous to the

3 health." BH023890. It is a "toxic gas that can cause injuries or fatalities if released to the

4 atmosphere and inhaled by persons." FEIR-00195. Research conducted at the University of

5 Southern California "has established central nervous system damage from the neurotoxin effects

6 of hydrogen sulfide even at levels as low as 1 ppm." BH023890. According to the EIR,

7 "(p )roduced gas as it emerges from the wellheads at the field has historically contained some

8 hydrogen sulfide in levels ranging from 0 to 10 ppm." FEIR-00196.

9 Although the EIR analyzed the impact of such releases from an odor perspective (FEIR-

10 00272), the EIR failed to analyze the acute health impacts from these types of occurences as par

of the Public Health Risk analysis. See BH002477. In response to comments regarding this

deficiency (FEIR-05730), the County stated, without citing any support, that "(h)istorically wells

have been 'sweet' at the field, meaning minimal hydrogen sulfide at levels that could cause injury

or fatalities. Therefore, acute exposure was not considered to be a risk." FEIR-05904. The only

substantial evidence in the record shows that the Oil Field produces "sour" oiL 31

Finally, the EIR contradicts the County's claim in response to comments that "(t)here is

no data to support the claim that hydrogen sulfide was release (sic) durng the driling event in

Januar 2006." As set forth in Table 4.2.5 of the EIR, "AQMD verified" that in January

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2006, "( d)rilling influx of natural gas with unown quantity of methane and hydrogen sulfide

(was) released." FEIR-00270; see also FEIR-05874. As raised in comments, the 2006 incident

31 The administrative record demonstrates that the County's statement regarding sweet v. sour oil

is not correct. The EIR defines "sour" crude as having a total "sulfide level in the oil is? 1 %"

(FEIR-00024) and "sweet" crude as containing "less than 0.5% sulfur." FEIR-00025. The EIRapparently relies only on unsupported and unspecified "PXP data" that sulfur content is less 1 %.FEIR-00196; See GUIDELINES § 15148. Unsupported statements provided by the project applicantare not "substantial evidence." On the other hand, a 2006 report entitled, "California Crude OilProduction and Imports," which the EIR expressly relied upon in the Air Quality Impact analysis(FEIR-00316, 02205), found that the Oil Field has a sulfur content of 1.8%. BHOO 1884-02211.This means that under the EIR's definitions of "sweet" and "sour" crude, the oil within the OilField would be classified as sour, not sweet. According to the EIR, "hydrogen sulfideconcentrations can reach 100 parts per million (ppm) in 'sour' crudes." FEIR-00195. Otherstudies have confrmed this characterization in identifying the Los Angeles Basin as being amajor hydrogen sulfide prone area. BH007927-00272.14314-00017/1712188.1 33


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that released hydrogen sulfide (according to SCAQMD) occurred while driling in the nodular

shale, a deep oil producing zone that had not seen much historical activity which the EIR did not

assess.32 The EIR also failed to address the health complaints that arose as a result of the 2006

releases. FErR-00271,272. Because the EIR's failure to consider the impacts from short term

exposure to high levels of toxic air pollutants was not supported by substantial evidence, the EIR

is inadequate.

d. The EIR Failed to Include the Information Necessary to Verify theCalculations Used in the Health Risk Assessment

CEQA "requires the EIR to include underlying techncal detail so that the conclusions of

the report can be evaluated by its reading audience." San Franciscans for Reasonable Growth v.

City & County of San Francisco, 193 CaI.App.3d 1544, 1549 (1987); see also GUIDELINS §

15147. Culver City specifically requested that the County provide the "air quality dispersion

input and output files, performed for air quality and public health risk sections." FEIR-05752.

This input data is essential to determine the accuracy of the air dispersion modeling, which is

used in the health risk assessment to determine the pollutant concentrations in the ambient air to

estimate the potential cancer risk. BHOOI884-04883. Although the ErR provided (for the first

time) over 4,000 pages of new modeling results (Appendix D), the County only provided input

for one emission source, the steam generator, (FEIR-05919) when it modeled over a hundred

emission sources (there are 127 area sources alone used in the HRA analysis). See e,g., FEIR-

00327. Based on what was provided, it was impossible to know if the right data were used and

whether the correct conclusions were reached, rendering the EIR utterly lacking as ani

informational document. See Laurel Heights, 47 CaI.3d at 404.

3. Risk of Upset From Oil Spils

The EIR failed to properly assess significant new information that substantially increased

the potential risk of oil spills impacting the environment. As a result, the ErR failed to adopt

adequate mitigation measures to address the increased risk of spills. Furthermore, the one

mitigation measure that the County did adopt was not incorporated into the CSD, contrary to

32 The failure to address the Januar 2006 Release in the DEIR is discussed at Section V below.


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CEQA.

a. The EIR Lacked Substantial Evidence to Support Its Oil Spil Risk Analysisand Failed to Consider the Secondary Impacts from the Mitigation MeasureIt Did Adopt

In evaluating the risk of an oil spil, the DEIR concluded that a release beyond secondar

containment would only occur once every 5,200 years because "all areas of the field are

contained within secondary containment (berms) and retention basins and discharges to the

environment are controlled with closed drain valves." BH017708-00233 (emphasis added).

However, the DEIR failed to mention that such an oil spil occured in March 2008 from a

pipeline, which flowed into the storm drains leading to Ballona Creek ("2008 Spil"). FEIR-

00041. This spill demonstrated the error in the DEIR's assertion that all areas of the field are

protected by secondary containment as well as its conclusion that the risk of such a spil was very

remote. See FEIR-05720; BH002478. It also greatly undermines any assurance that the EIR has

accurately served its fuction as an informational document. Communities for a Better Env 't v,

California Resources Agency, 103 CaI.Appo4th 98, 107 (2002).

Although the EIR was forced to acknowledge that the field is not entirely protected

(FEIR-00041, 05720) and "(i)t is unkown how much of the field does not drain into a basin"

(FEIR-00252), the ErR failed to reconsider the risk analysis made in the DEIR that a spill would

only occur once every 5,200 years. Id.; see BH002476, 2478. Indeed, the ErR failed to even

discuss the circumstances that resulted in the 2008 Spil, or that those circumstances with

additional driling, construction, and production, would result in an increased risk of spills and not

just an increased volume. See, e,g. FErR-00252.33 Because the EIR failed to adequately discuss

the circ~mstances surrounding the 2008 Spil and the real risk of futue spills, the EIR failed to

provide the County, and others, with "information which enables them to make a decision which

intelligently takes account of environmental consequences." GUIDELINES § 15151; see also

GUIDELINES § 15143 ("significant effects should be discussed with emphasis in proportion to

33 The FEIR's discussion ofthe 2008 Spill is limited to one sentence: "One of the spils, occuringin March 2008, went offsite into a storm drain" (FEIR-00229) and a cryptic statement in Table2.9 that a "( s )upply line developed a leak with a spil of crude oil onto a street and into a stormdrain." FEIR-00144.14314-00017/1712188.1 35


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their severity and probability of occurrence").

Additionally, to address what the EIR even conceded was a "significant" impact (FEIR-

00253), the EIR only recommended one mitigation measure to address the risk manfested by the

2008 Spil. Measure R.2-3: "Ensure that all above ground piping containing crude oil or oily

water are protected by basins or secondar containment (berms and walls) that can contain at least

110% of the worst case spill volume." Id; see BH002498 (emphasis added). The EIR failed to

recommend any mitigation measures to reduce the risk from a spil originating from underground

pipelines, even though there was no evidence whether the 2008 Spil occured from an above-

ground or underground pipe nor that a spill similar to the 2008 Spill could not originate from an

underground pipe leak. FEIR-00249,253. Accordingly, there is no evidence supporting any

conclusion that the recommended mitigation would reduce the risk to the environment to a level

of insignificance resulting from a spil similar to the 2008 Spil. This also has environmental

justice implications because there is a significantly higher percentage of people of color living in

the Project area as compared to the County. FEIR-00671.

No Assessment of Secondary Impacts. The EIR failed to consider the secondar

impacts from requiring berms or walls around above-ground pipelines suffcient to contain 110%

of worse case spill volume. FEIR-00253; see BH002481. Given the possibility that oil could be

flowing out of the pipelines for hours, especially at night since only a maximum of four

employees work the night shift at the entire field, the worst case spil volume could be significant.

See 49 C.F.R. § 194.105 (setting forth the calculation method for onshore pipeline worst case oil

discharges); FEIR-00136. Therefore, to construct the berms or walls necessary to contain at least

110% of such volumes over the entire course of all above ground piping could require extensive

grading and construction. See BH001884-09786 (setting forth the design and construction of

dikes and berms, including grading); see also FErR-00127.

However, the ErR failed to address the impacts from such construction as required by

CEQA. Save Our Peninsula Comm., 87 CaI.App.4th at 130 ("An ErR is required to discuss the

impacts of mitigation measures."); see also GUIDELINS § 1512604(a)(I)(D); Stevens v. City of

Glendale, 125 CaI.App.3d 986 (1981).14314-00017/1712188.1 36


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b. The CSD Failed to Incorporate the Risk of Upset Mitigation MeasureAdopted by the County

Despite the Board's certification of the of the EIR's risk of upset mitigation measure

discussed above (BH002169), the measure was not incorporated in the final CSD. Compare id.

with BHOOI890-1989. The CSD only requires that above-ground piping be "protected by basins

or secondary containment measures (berms and/or walls)," without any requirement of at least

110% containment of worst case spil volumes. BHOO 1913. Where the lead agency expressly

finds that a mitigation measure should be adopted to reduce the risk of a significant impact to a

level of insignficance, the failure to incorporate the mitigation measure into the Project violates

CEQA. See Federation of Hilside & Canyon Ass 'ns v, City of Los Angeles, 83 Cal.App.4th

1252, 1261 (2000), citing PUB. REs. CODE § 21081.6(b). Accordingly, the mitigation measure

should have been incorporated in the CSD as adopted by the County.

4. Noise

The EIR identifies noise from futue drilling, redrilling and reworking as being

"significant depending on the location of the drill rig within the oil field" in relation to nearby

residences and other sensitive receptors. FEIR-00556-57. Although the EIR recommended and

the County adopted a number of mitigation measures including noise barriers, enclosures and

critical grade muffers, none of these mitigation measures was included in the CSD. FEIR-

00557-558,560,568. Other than prohibiting "tonal" noise, the only drillng noise mitigation

measure included in the CSD is that "A-weighted equivalent noise levels associated with drilling,

redriling and reworking shall not elevate existing baseline levels by more than five dBA34 at any

developed area." BHOOI919. The failure to include mitigation recommended by the EIR and

adopted by the County in its findings alone is fataL See Federation of Hilside, 83 Cal.Appo4th at

1261, citng PUB. REs. CODE § 21081.6; GUIDELINES § 15126.4(a)(2) (mitigation measures in

findings of lead agency must be incorporated into the project and must be "fully enforceable").

Moreover, although a 5dBA limit may lead to the use of other noise control measures to

comply with the limitation, such as noise barriers, the EIR's conclusion that a 5dBA increase over

34 dBA is the commonly used acronym for A-weighted decibeL


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existing baseline levels is insignificant is not supported by substantial evidence. See FEIR-

05778. In fact, the administrative record, including the County's own noise limits set forth in its

Code, demonstrate that a 5dBA increase is significant. See BHOOI884-8748, 8974. Additionally,

the ErR failed to consider the cumulative impact of a 5dBA increase when, as here, the baseline

levels already exceed the County's noise standards. See FEIR-00573. Cours have expressly

found that such a failure violates CEQA. See Gray, 167 CaI.Appo4th 1099 (failure to consider

cumulative impact of 2.1 dBA increase where baseline levels exceed those set in county general

plan); Los Angeles Unifed School Dist. v, City of Los Angeles, 58 CaI.App.4th 1019 (1997)

("LAUSD") (conclusory statement that a 2.8-3.3dBA increase is insignificant is insufficient,

particularly where existing levels exceed state guidelines).

a. The 5dBA Significance Threshold for Driling Noise is Not Supported bySubstantial Evidence

The ErR concludes, without support, that elevating existing-baseline noise levels by more

than 5dBA at neighboring properties would not be considered significant. FEIR-00552. The EIR

fails to provide any support for this threshold other than it is "derived from typical human

response to changes in noise levels" and a 5dBA increase is "readily perceptible by most people."

rn Gray, supra, the court considered a similar rationale in an EIR used to justify a 2.1dBA

increase in which the EIR stated: "(i)t is generally recognized that an increase of at least 3dBA is

usually required before most people will perceive a change in noise levels" and held this "bare

conclusion canot satisfy the requirement that the EIR serve as an informational document."

Gray, 167 Cal.Appo4th at 1124. Likewise, the same bare conclusion in the County's EIR violates

CEQA. See id.; Protect the Historic Amador Waterways, 116 CaI.App.4th at 1111-12 (bare

conclusion regarding insignificance does not satisfy CEQA).

b. The EIR Failed to Assess the Significance of Increasing Noise Levels by 5dBAabove Baseline Levels that Already Exceed County Standards

Moreover, the ErR failed to consider the impact of any increase, let alone a 5dBA

increase, over baseline noise levels which already exceed the noise standards set by Los Angeles

14314-00017/1712188.1 38


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County Code § 12.08.390. BHOOI884-08974-75; see FEIR-05737. The County has set limits of

45dBA for nighttime noise and 50dBA for daytime noise.35 Id. In establishing these standards,

the County stated that it was its express goal "to implement programs aimed at reducing noise in

those areas within the County where noise levels are above acceptable values." BHOOI884-

08969. Here, the County is implementing a program that wil increase noise levels where the

noise levels are already well above acceptable values. FEIR-00544.

As illustrated in Tables 4.9.3 and 4.9.5, the baseline levels exceed County residential

daytime external noise standards in all of the 7 locations and nighttime external noise standards in

4 ofthe 7 locations. Compare id. with FEIR-00548. As the baseline levels in the residential

neighborhoods are already as much as 14dBA above those set by the County for residential areas,

an increase of 5dBA would effectively allow noise levels to exceed the County's residential

levels by almost 20dBA. BHOOI884-08974-75; FEIR-00544. According to the EIR, "an increase

of 10 dB (sic) in sound level represents a perceived doubling ofloudness," (FEIR-00539),

therefore, a 20dBA increase in sound would be more than four times louder than levels

established under the County Code to protect public health and safety. BHOOI884-08969. There

is no evidence in the EIR or the record to support the EIR's assertion that a 5dBA increase above

already excessive levels would be "insignificant."

Indeed, the Administrative Record confirms that this the increase is significant.

According to the Federal Transportation Administration's "Transit Noise and Vibration Impact

Assessment" (the "FTA Report"), the only document the EIR references which has any evidence

on this issue, while a 5dBA increase may be acceptable where noise levels are relatively low, as

the ambient noise increases, the sensitivity to any additional increase becomes higher.

BHOOI884-08748; FEIR-00577; BHOOI884-08617, 8644, 8660, 8685, 8689, 8696, 8957, 8966,

8984. This is because "people already exposed to high levels of noise should be expected to

tolerate only a small increase in the amount of noise in their community." BHOOI884-08748.

35Contrar to the EIR's assertion, drillng operations are not exempt from the County noise limits.

FEIR-05777-78,5936-37. The County Code only exempts drilling and redriling if such work "isdone in full compliance with the conditions of permits issued under" the County Zoning Code.BHOO 1884-08981 (emphasis added). No County permits will be issued under the CSD.14314-000171112188.1 39


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For example, where existing noise exposure is 55dBA the acceptable noise increase is 3dBA; but,

at 60dBA, the acceptable increase is only 2dBA. Id. Both of these examples set forth in the FTA

Report are well below the 5dBA increase which the EIR purports to find as insignificant for

neighborhoods that already have baseline levels in the 50dBA to 60dBA range for daytime levels.

FEIR-00544. Thus, not only is the EIR's conclusion that a 5dBA increase would be insignficant

not supported by the record, the record actually shows such an increase is significant.

BHOOI884-08748. Moreover, the ErR fails entirely to consider the significance of the cumulative

impact of an increase of 5dBA above levels that already significantly exceed the County's noise

standards by as much as 14dBA. Two Californa cases considering almost identical

circumstances have found that the EIR was inadequate on this basis. See LA USD, 58 CaI.App.4th

1019; Gray, 167 CaI.App.4th 1099.36

Demonstrating the significance of 5dBA, the County itself uses the 5dBA increment to

define the difference between acceptable residential daytime noise and nighttime noise levels.

BHOOI884-08974. And 5dBA is the difference between acceptable residential daytime noise and

commercial nightime noise. Id.37 Indeed, many of the neighborhoods surounding the Oil Field

wil have to endure levels which exceed the maximum commercial daytime noise standards of 60

dBA established by the County. Id. Thus, the County is effectively subjecting Baldwin Hils

36 In LAUSD, the court considered whether an ErR which concluded that "an increase ofless than

five decibels in ambient noise level has only 'a marginal impact' on the hearer and is generallynot considered to be a major change in ambient noise" was adequate in light ofthe fact that theexisting noise levels already exceeded the Deparment of Health Guidelines. LAUSD,58Ca1.Appo4th at 1024. The court held that the EIR was inadequate because it failed to consider thesignificánce from the cumulative impact ofa 2.8 to 3.3dBA increase when the existing conditionsalready exceed the standards. Id. at 1026. Similarly, in Gray the cour found an EIR to beinadequate because it failed to "consider whether the cumulative noise impact would besignificant when increases of up to 2.1 dBA are added to existing noise level," which alreadyexceeded those set by the County. Gray, 167 CaI.App.4th at 1123. In reaching this holding, thecour noted that "even though a 2.1 dBA noise in isolation will not be noticeable, when added toan already high noise level, it could cause a tipping point of noise problems for the generalpublic." !d. Thus, the County violated CEQA in failing to analyze the significance of a 5dBAincrease over levels that already exceed County standards and there was no substantial evidenceto support a finding of insignificance.37 Moreover, the acceptable level for sound emitted for 15 minutes or more is 5dBA higher than

the long-term sound level requirements. BHOOI884-08974-75.14314-00017/1712188.1 40


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residential areas - with disproportionate minority populations - to a noise level which would not

even be acceptable in most commercial areas. 38 FEIR-00671.39

5. The EIR Lacks a Discussion of Significant Impacts from GHGs

The Californa legislature has enacted the Global Waring Solutions Act of2006 ("AB

32"), which recognized that global waring poses a serious threat to the environment and

required the state to reduce "greenhouse gas" ("GHG") emissions to 1990 levels by 2020, a

roughly 25% reduction under business as usual estimates. BH001884-02014 (CAR website);

BHOOI884-06001. Despite this demonstrated Statewide commitment to reducing GHG

emissions, the County failed to include in the EIR an adequate discussion of the impacts of

significant additional GHG emissions from the Project. The most critical omission was the EIR's

failure to determine whether the Project's GHG emissions are, in fact, significant.

The EIR determined that the Project would generate 162,747 metric tons of carbon

dioxide equivalent gases in addition to the total baseline GHG emissions of74,565 metric tons.

FEIR-00310. The EIR concluded that due to the absence of an "agreed-upon methodology," it is

too "speculative" to determine whether GHG emissions from the Project "would or would not

contribute considerably to (the) significant cumulative impact( s)" of global climate change.

FEIR-00312. This violated CEQA's requirement that an EIR discuss all signficant impacts of a

project, which necessarily requires the lead agency to make a determination as to whether the

Project may have any such significant impacts (PUB. REs. CODE §§ 21082.2(a), 21100(b)(I);

38 In response to comments that the baseline levels already exceed the County's established noise

levels (FEIR-05737), the County stated that under "Standard NO.1" of the County Code, whenthe ambient L50 noise level exceeds the noise level set forth in the County Code (i.e., 50dBAdaytime and 45dBA nighttime), the ambient L50 becomes the maximum noise leveL FEIR-05907-08. This actually proves why a 5dBA increase over baseline levels is significant. CountyCode 12.08.390 sets the levels which are acceptable to protect public health and safety. SeeBHOO 1884-08969. If ambient noise already exceeds those levels under "Standard NO.1" theambient L50 levels become the new maximum allowable noise level for purposes ofliability.However, under "Standard NO.1" any exceedance over the ambient L50 levels is a violation ofthe standard. BHOOI884-08974. Even if the ambient levels were used as the maximum noiselevel allowed, it violates the County Code to allow an additional exceedance of 5dBA over theambient levels. In any event, the EIR measured baseline levels which included noise from oilfield operations (but not drilling noise). For purposes of determining whether noise from the oilfield exceeds the standards, the oil field noise canot be considered part of the ambient noise. Id.39 This has environmental justice implications because according to the EIR the Project area "has

higher minority percentages than the County of Los Angeles." FEIR-00671.


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1 GUIDELINES §§ 15126(a), 15126.2(a)) and prevented the County from adopting feasible

2 mitigation measures. PUB. REs. CODE §§ 21002, 21081(a); GUIDELINS §§ 15021(a)(2),

3 15091(a)(1).

4 The absence of a unversally accepted methodology as to what constitutes a significant

5 impact does not relieve the County from its obligation to make a significance determination as to

6 GHG emissions. See Berkeley Keep Jets Over The Bay Comm. v. Board of Port Comm 'rs, 91

7 CaI.Appo4th 1344, 1370-71 (2001). In Berkeley Keep Jets, the cour reasoned that "(t)he fact that

8 a single methodology does not curently exist that would provide the Port with a precise, or

9 'universally accepted,' quantification of the human health risk from (toxic air contaminant)

exposure does not excuse the preparation of any health risk assessment. . ." 91 CaI.App.4th at

1370. The EIR also failed to consider the Office of Planng and Research's Techncal Advisory

instructing that lead agencies should undertake to determine the significance of GHG emission

increases in the absence of an agreed-upon methodology.40

Not only is the County's determination that the significance of the cumulative impact of

167,000 tons of additional anual GHG emissions "too speculative" not supported by the record;

the EIR provides no evidence of even a good faith attempt to make a significance determination.

Thus the EIR is inadequate under CEQA. See e,g., Kings County, 221 CaI.App.3d at 71841; see

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40 "As with any environmental impact, lead agencies must determine what constitutes a

significant impact. In the absence of regulatory standards for GHG emissions or other scientificdata to clearly define what constitutes a 'significant impact,' individual lead agencies mayundertake a project by-project analysis, consistent with available guidance and current CEQApractice.... The potential effects of a project may be individually limited but cumulativelyconsiderable. Lead agencies should not dismiss a proposed project's direct and/or indirectclimate change impacts without careful consideration, supported by substantial evidence."BH002483. Moreover, the EIR failed to discuss the methodologies proposed by the CaliforniaAir Pollution Control Officers Association or the SCAQMD Working Group (proposing 6,500tons of GHG emissions as a threshold). Id41 In Kings County, the EIR concluded that the project's contributions to ozone levels in the

region was insignificant because the project would emit relatively minor amounts of ozoneprecursors compared to the total volume of precursors already emitted in Kings County. KingsCounty, 221 CaI.App.3d at 718. The court determined that the "ErR's analysis uses themagnitude of the current ozone problem in the air basin in order to trivialize the project'simpact." Id. The court concluded: "The relevant question to be addressed in the EIR is not therelative amount of precursors emitted by the project when compared with preexisting emissions,but whether any additional amount of precursor emissions should be considered significant inlight of the serious nature of the ozone problems in this air basin." Id. .

14314-00017/1712188.1 42

PETITIONERS' OPENlNG BRIEF

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also FEIR-06001 (SCAQMD stated that "(b)y not makng a significance determination (on

GHGs), the lead agency may be violating a fudamental requirement of CEQ A").

6. The EIR Lacks an Adequate Analysis of the Social, Economic and

Environmental Justice Effects and Physical Changes Caused by the Project

The EIR concedes the need to study and mitigate or avoid social, economic, and

environmental justice effects: "(t)he potential futue development could disproportionately impact

minority and/or low-income populations." FEIR-00671. The EIR nevertheless concludes: "No

mitigation recommended." FEIR-00672. People of color in the Baldwin Hils area

disproportionately bear the environmental burdens ofthe Project and future development, and are

disproportionately denied environmental benefits such as parks and economic benefits such as oil

profits. See FEIR-00666-67. The EIR does not adequately analyze the facts or the law regarding

social, economic, and environmental justice effects. See FEIR-06218.

a. Social and Economic Effects under CEQA Guidelines

Under the Guidelines, social or economic effects caused by the Project may be used to

determine the significance of physical changes. Conversely, physical changes causing social or

economic effects may constitute significant effects on the environment. See GUIDELINS § 15131;

Bakersfield Citizens for Local Control v. City of Bakersfield, 124 CaI.Appo4th 1184 (2004);

Christward Ministr v, Superior Court, 184 CaI.App.3d 180, 197 (1986) (waste management

facility next to religious center required study whether physical impacts would disturb worship in

natural environment). "When there is evidence ... that economic and social effects caused by a

project... could result in a reasonably foreseeable indirect environmental impact, such as urban

decay or deterioration, then the CEQA lead agency is obligated to assess this indirect

environmental impact." Anderson First CoaL. v, City of Anderson, 130 CaI.Appo4th 1173 (2005);

see BH002053. The EIR provides graphic textbook examples of urban decay and deterioration in

the Baldwin Hills study area. FEIR -00619- 31. No oil field looks like this in a disproportionately

white and wealthy area like Beverly Hills.

14314-00017/1712188.1 43


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The County is required to analyze social, economic and environmental justice effects

correctly. See, e.g., GUIDELINES § 15151 (EIR must provide "adequacy, completeness, and a

good faith effort at full disclosure"); Berkeley Keep Jets, 91 CaI.Appo4th at 1370 (requiring

"reasonably conscientious effort... either to collect additional data or to make fuher inquiries of

environmental or regulatory agencies having expertise in the matter;" agency must "do the

necessary work to educate itself about the different methodologies that are available");

GUIDELINES § 15121 ("An EIR is an informational document").

The EIR did not follow best practice examples of how to analyze environmental justice.

The EIR recites a laundry list of laws and policies on environmental justice, but fails to analyze

the significance of the facts under those standards. See, e.g., FEIR-00669-70. Thus, for example,

the EIR concedes that the County addresses environmental justice through the work of the

, Southern Californa Association of Governents and Title VI of the Civil Rights Act of 1964, but

fails to analyze either. See BH002648-2833. Petitioner CCSCLA provided public comments

with an appropriate environmental justice framework, which the EIR ignored. FEIR-06218-31,

6239-46; BH004443-4461; BH007572. The County failed to do the necessar work to educate

itself about the methodology for doing a proper analysis of social, economic, and environmental

justice impacts, and failed to make inquiries of agencies having expertise in the matter.

b. Environmental Justice Impacts Under Civil Rights Standards

The EIR failed to properly analyze the Project and future development under the civil

rights laws. See FEIR-06220-31, 6241-47. Recipients of public fuds including the County are

prohibited from engaging in practices that have the intent or the effect of discriminatiùg based on

race, color or national origin. Title VI of the Civil Rights of 1964 and its implementing

regulations prohibit both (1) intentional discrimination based on race, color or national origin, and

(2) unjustified discriminatory impacts for which there are less discriminatory alternatives, by

recipients of federal financial assistance. Intent to discriminate is not required under the

regulations.

To receive federal funds, a recipient must certify its programs and activities comply with

Title VI and its regulations. Guardians Ass 'n v. Civil Service Comm 'n, 463 u.s. 582, 629 (1983).


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In fuherance of this obligation, recipients must collect, maintain, and provide timely, complete,

and accurate compliance information. Cf Executive Order 12,898 on Environmental Justice, BH

000769. The federal governent emphasizes the need for recipients to comply with Title VI and

its regulations.42 Californa law prohibits both intentional discrimination and unjustified

discriminatory impacts under Governent Code section 11135 and its regulations, which are

analogous to Title VI and its regulations. GOy'T CODE § 11135; CAL. CODE REGS. tit. 22 §

98101(i) (2007); see Darensburg v. Metropolian Transp. Comm 'n, No. C-05-01597 EDL, 2008

U.S. Dist. LEXIS 63991 (N.D. CaL Aug. 21, 2008) (standing to sue publicly funded agency for

discriminatory impacts on quality of life for people of color). Californa law defines

environmental justice as "the fair treatment of people of all races, cultues, and incomes with

respect to the development, adoption, implementation, and enforcement of environmental laws,

regulations, and policies." GOy'T CODE § 65040.12.

The inquiry under the disparate impact standard is: (1) whether a practice has a

disproportionate impact based on race, national origin, or color; (2) if so, the recipient bears the

burden of proving the action is justified by business necessity; and (3) even if otherwise justified,

the action is prohibited if there are less discriminatory alternatives. See, e,g., Larry P, v, Riles,

793 F.2d 969,981-83 (9th Cir. 1984). The following is evidence of intentional discrimination:

(1) whether the action impacts more heavily on one racial or ethnc group than another; (2) a

history of discrimination; (3) departres from procedural norms in reaching a decision; (4)

deparures from substantive norms; (5) whether the decision maker knows the har its decision

42 See memo from Loretta King, Acting Assistant Attorney General for Civil Rights, to Federal

Agency Civil Rights Directors and General Counsels re: Strengthening of Enforcement of Tite VI

of the Clvil Rights Act of 1964 (July 10,2009), available athttp://ww.usdoj.gov/crt/lep/titlevi enforcement memo.pdf, citing Memo from the Assistant

Attorney General to Executive Agency Civil Rights Directors, Enforcement of Title VI of the Civil

Rights Act of 1964 in Block Grant-Type Programs (Jan. 28, 1999),http://ww.justice.gov/crtcor/Pubslblkgrnt.php; Peter R. Orszag, Director, Offce ofManagement and Budget, Memorandum re: Updated Implementing Guidancefor the AmericanRecovery and Reinvestment Act of2009, April 3, 2009, at page 2 and Guidance at page 6,available at ww.whitehouse.gov/omb/assets/memoranda fy2009/m09-15.pdf; U.S. Dep'tJustice, Civil Rights Division, Title VI Legal Manual,http://ww.justice.gov/crticor/coord/vimanuaI.php.BH 001409; Rosemere Neighborhood Ass 'n

v. United States Envtl. Prot. Agency, 581 F .3d 1169, 1175 (9th Cir. 2009) (condemning EPA'sfailure to investigate environmental justice complaints).14314-00017/1712188.1 45


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1 will cause; and (6) a pattern or practice of discrimination. See Vilage of Arlington Heights v.

2 Metropolian Housing Dev, Corp., 429 U.S. 252, 265 (1977) (superseded on other grounds by

3 Chapman v. Nicholson, 579 F.Supp. 1504 (1984)); Commitee Concerning Cmty. Improvement v,

4 City of Modesto, 583 F.3d 690 (9th Cir. 2009) (statistical disparties in providing municipal

5 services evidence of intentional discrimination under Title VI and 11135).

6 The EIR should have studied and mitigated or avoided disproportionate effects discussed

7 throughout this Brief involving: urban decay and deterioration; park access, recreation and quality

8 of life; human health; obesity; air quality; air toxics/public health; risk of upset; noise; vibration;

9 significant irreversible environmental changes; secondary impacts from mitigation measures;

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project alternatives; living, worshipping, learng and doing business in the natural environment

in the study area, and cumulative impacts on quality of life. "Aesthetic and environmental well-

being, like economic well-being, are important ingredients ofthe quality oflife in our society."

Sierra Club v. Morton, 405 U.S. 727, 734 (1972) (superseded on other grounds by Fairview

Township v, EPA, 773 F.2d 517 (1985)). Baldwin Hills residents testified about the impact of Oil

Field expansion on quality of life, including health, safety, homes, property values and

community. BH003136, BH006767, BH020380. The Baldwin Hills Conservancy "focused on

opportnities to improve the quality oflife in the area." BH019003. The EIR's failure to

adequately consider the forgoing issues, renders it inadequate.

The CSD Failed To Mandate Removal of The Existing Gas Plant FlareDespite the Specification of such a Mitigation Measure in the EIR

The County CSD unawflly failed to implement the mitigation measure requiring

7.

replacement and removal of the existing gas plant flare. See BH027725. The EIR finds that use

of the existing flare is a significant adverse impact due to significant "vibration and low-

frequency airborne noise associated with flaring large volumes of gas." FEIR-00570.43 To

43 The EIR describes the following impacts:

"A major source of vibration and low-frequency airborne noise at the oil field is the gas plantflare. Under normal operating conditions, gas from the gas plant is shipped via pipeline into a gaspipeline. .. There are times when these transmission pipelines are shut-down without prior

knowledge ofthe oil field operator. When this happens, the gas from the gas (plant) is routed tothe flare. This places a large volume of gas through the flare which produces vibration and low-frequency airborne noise that affects offsite areas, particularly in the Ladera Heights area. Thereis documented evidence that the vibration and low frequency noise has caused rattling of14314-00017/1712188.1 46


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address the impacts from the flare, EIR Mitigation Measure N.7-2 required replacement ofthe

existing flare with a new flare. Id. Consistent with implementation of this mitigation measure, in

the health risk assessment modeling analysis, the EIR assumed that only one gas plant flare would

be in use at the Oil Field.44 FEIR-06022.

In response to PXP's objections to this mitigation measure, the County stated that the

measure was required because there are "no guarantees that the noise and vibration problems with

the existing flare can be solved." !d. But in Supervisor Burke's last-minute amendments of the

CSD on October 21,2008, the County deleted the language requiring the decommissioning and

removal ofthe existing flare which would have complied with Mitigation Measure N.7-2.

BH022173. The County CSD allows PXP to retain the existing flare and add the new flare in

circumvention ofthe ErR analysis, the Mitigation Measure and the County's response to

comments. BHOOI980. Accordingly, the County has failed to satisfy its legal obligation to

mitigate or avoid the significant environmental effect of the noise and vibration risks of the

existing flare despite the feasibility of doing so. PUB. REs. CODE § 21 002.1 (b).

C. The EIR Lacks an Adequate Consideration and Discussion of MitigationMeasures with Respect to the Environmental Impacts of the Project

The ErR failed to adequately consider feasible mitigation measures that could minimize

the Project's significant adverse impacts. PUB. REs. CODE § 21100(b)(3); GUIDELINS

§§ 15121(a), 1512604(a)(l). An EIR must respond to specific suggestions for mitigation

measures uness the suggested measures are "facially infeasible." LAUSD, 58 CaI.App.4th at

1029. Although the responses need not be exhaustive, they should "evince good faith and a

reasoned analysis." !d. As discussed below, the EIR failed to adequately consider mitigation

measures that require a "no net gain" of wells, consolidation of existing wells, and electrification

of drilling rigs and heavy equipment, all of which were raised in comments to the DErR.

windows and other items in homes that border the oil field." FErR-00569-70.44 For baseline conditions, the modeling used emission from the existing flare. For potential

future conditions without mitigation, the EIR assumed the existing flare. For potential futureconditions with mitigation, the ErR assumed the new flare only. At no time did the ErR evaluateconditions with two flares (i.e., the existing flare combined with the new flare). FEIR-06022.

14314-00017/1712188.1 47

PETITIONERS' OPENING BRIF

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No Net Gain of Wells: The EIR failed to adequately consider the proper abandonment

of an existing well every time PXP drils a new well, in order to mitigate impacts such as to air

quality, visual aesthetics and noise. See FEIR-05722. The EIR's only response -- that such a

requirement could lead to additional impacts by forcing PXP to abandon wells that could be re-

drlled and thereby increase the need for PXP to drill new wells (FEIR-05898) -- was not the

"good faith" result of a "reasoned analysis." LA USD, 58 CaI.Appo4th at 1029. At a minimum,

the EIR failed to explain why PXP would not be able to identify which wells were not suitable for

re-driling in the future and abandon those wells.

Consolidation of Existing and Future Oil Wells: Consolidation could be made

possible through directional drilling, a feasible technology that would allow drilling to occur

away from residences and would lead to a substantial reduction in aesthetic, toxic, upset and noise

impacts. See FEIR-05722. The EIR suggested, without support, that directional driling actually

would result in greater impacts due to the fact that "the major reservoirs have small subzones, and

without close to vertical penetration, each well could only produce (oil) from a limited number of

the subzones, thereby increasing (the) number of wells required to get the same level of

production." FEIR-05898.

This response falls far short of an adequate response under CEQA. The EIR failed to

explain why directional driling would not be as effective at producing oil from multiple subzones

as vertical drillng. In any event, the response is largely irrelevant in that there are few, if any,

instances of multiple subzones in the deeper formations (i.e., more than 5,300 feet deep) such as

the Nodular Shale formation where toxic H2S emissions are likely to be more prevalent. See

FEIR-00120. At the very least, the EIR should have addressed whether PXP could be required to

consolidate the footprints of the wells in locations that would have the least actual or potential

environmental impact whenever techncally feasible. LAUSD, 58 CaI.Appo4th at 1029.

Electrifcation: In response to comments proposing mitigation through the use of

electrical power, instead of diesel, to run dril rigs and heavy equipment, the EIR stated without

meaningful consideration or support, that electrification would not be a feasible means to mitigate

air quality, toxics and other impacts. See FEIR-05722, 5757. Yet elsewhere in the document,14314-00017/1712188.1 48


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the EIR considered and even proposed electrification as one of several feasible means to mitigate

noise impacts. FEIR-00558 (suggesting mitigation measure N.l-l which includes the use of a

"remote power generator... with electrical cables run out to the drill sites"). 45 This not only

exemplifies the inconsistencies that permeate the EIR, but it also demonstrates the EIR's

improper, knee-jerk responses to proposed mitigation measures. Whle proposing electrification

as feasible mitigation on the one hand, the EIR rejected it on the other - apparently for no other

reason than it was being proposed by the public.

In responding to comments, the EIR addressed electrification in the context of mitigating

air quality and toxics. First, the EIR stated that electrification is not necessary because those

impacts wil be mitigated through other measures. FEIR-05898. This is an insufficient response.

As discussed infra, the EIR failed to properly assess or mitigate the impact from noise, toxics and

air quality. See Brief §§ IVB(1), (2) and (4) infra. In any event, the EIR is obligated to

meaningfully consider all feasible mitigation to allow the decisionmakers to make a reasoned

judgment. LAUSD, 58 CaI.Appo4th at 1029.

Second, the EIR stated that electrfication was not feasible because it would "require the

installation of a new electric power distribution system" that would have significant impacts "due

to the need to install new and large power poles throughout the oil field." FEIR-05898; see

LAUSD, 58 CaI.Appo4th at 1029. This bare conclusion is belied not only by the EIR's

recommended use of electrification to feasibly mitigate noise impacts, but also by the underlying

facts described by the EIR. According to the EIR, "(a)lmost all equipment at the Inglewood Oil

Field is electrically driven, including the gas compressors and well rod-pumping units (of which

there are hundreds)." FEIR-00136. To supply electricity to these locations, "a distribution

system of three main circuits including sets of poles and power lines emanates from the PXP

substation northwards towards the T -Vickers area, eastwards towards the Central Water and Gas

Plant and southwards towards the Stocker area." Id. There is no evidence in the record that the

45 This proposal was adopted by the County in its findings. BH002204 (adopting mitigation

measure N.l-1) As discussed in Section IVB(4) herein, the mitigation was not included in theCSD. There was no analysis or explanation as to why it was not required in the CSD - contrary toCEQA.14314-00017/1712188.1 49


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dril rigs' power requirements would necessitate a new or modified electrical system. According

to the EIR, there will only be a maximum ofthree drill rigs at anyone time (FEIR-00035), with

each dril rig ranging from approximately 280 hp to 3,290 hp. FEIR-00719. By comparson, the

electrically powered pumps for the Central Water Injection have combined 10,000 hp. FEIR-

00137. Electrification is a feasible alternative widely used and required by other governental

agencies, and indeed was proposed as a feasible alternative to mitigate noise. FEIR-00558. The

failure to adequately consider electrification as a measure to feasibly mitigate some of the most

significant impacts from the Oil Field renders the EIR fatally defective. LA USD, 58 CaI.App.4th

at 1029.

D. When Adopting The CSD, The County Failed To Impose EnforceableMitigation Measures Identified In The EIR And Instead Unlawfully DeferredThose Mitigation Measures By Promising To Adopt Implementation Plans Inthe Future

Public Resources Code § 21 002.1 (b) requires public agencies to mitigate or avoid the

significant environmental effect of projects they approve whenever it is feasible to do so. To

satisfy this legal obligation, when approving a project the lead agency must adopt each of the

mitigation measures for significant impacts identified in the EIR unless the agency finds the

measure infeasible. PUB. REs. CODE § 21081; see also GUIDELINS § 15091. These mitigation

measures must also be enforceable through conditions of approval or other legally binding means.

PUB. REs. CODE § 21081.6(b). In the case ofthe adoption of proposed regulations, the mitigation

measures must be incorporated into the legislation. PUB. REs. CODE § 21081.6(b); GUIDELINS

§ 1512604(a)(2); see also Federation of Hilside, 83 CaI.Appo4th at 1261 ("The purpose of these

requirements is to ensure that feasible mitigation measures wil actually be implemented as a

conditon of development, and not merely adopted and then neglected or disregarded' (emphasis

in original)). This concept was expressly recognized by the County, which promised that, "Any

mitigation measures identified by the EIR would be incorporated directly into the CSD as

development standards." BH002039. A project proponent's agreement to a mitigation measure,

by itself, is insufficient unless it is made to be enforceable. Woodward Park, 150 CaI.Appo4th at

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Instead of actually incorporating the mitigation measures into the CSD, the County CSD

unlawflly defers such mitigation until the preparation of approximately 25 "Mitigation Plans" to

be submitted within 90 to 180 days by PXP. Moreover, there is no requirement in the County

CSD to include the EIR's mitigation measures in such mitigation plans. The County CSD sîmply

states the plan "shall include any measures requested by the (County's Planing) director" in

complete disregard of the EIR's identification of specific components for a number of these

Mitigation Plans.46 See e,g. BHOOI905. Despite this, the Staff Report to the Board falsely

asserted, "The mitigation measures identified in the DEIR were incorporated into the proposed

CSD to provide the necessary development standards and regulations to minimize potential

adverse impacts of oil field operations." BH002041. 47

In addition, the CSD requires PXP to prepare and submit various mitigation plans within

90-180 days after the CSD's adoption, for the County Planing Directors' approvaL See, e.g.,

BHOO 1972 (Odor Minimization Plan - 90 days); BHOO 1979 (Quiet Drilling Mode Plan - 90

days); BH001980 (Habitat Protection Plan-180 days). This is exactly the kind of deferred

mitigation plan expressly disapproved in the case law. See, e,g., Sundstrom v, County of

Mendocino, 202 CaI.App.3d 296, 307 (1988). "(T)he CEQA process demands that mitigation

measures timely be set forth, that environmental information be complete and relevant, and that

environmental decisions be made in an accountable arena." Oro Fino Gold Mining Corp, v.

County of El Dorado, 225 CaI.App.3d 872, 885 (1990). Admittedly, some EIR cases have

permitted deferred mitigation plans in exceptional circumstances, but none have approved the use

46 The EIR identifies specific components for a number of the Mitigation Plans. For example: airmonitors must be installed at the edge of the dril pads and around the outer edge of the gas plantin the Air Monitoring Plan (BH000383); the Emergency Oil Spill Response Plan has fourcomponents (BH000527 to 528); the Special Status Species and Habitat Protection Plan has threecomponents (BH000516 to 517); six components for the Quiet Mode Driling Plan (BH000656 to657); six components for the Erosion Control Plan (BH000474 to 475); six components in theOdor Minimization Plan (BH000382); and 15 components should be included in the FugitiveDust Control Plan (BH000375 to 376). None of these specific components from the EIR iscodified in the CSD.47 The County CSD also fails to include a number of noise mitigation measures, including the use

of noise bariers, enclosures and "critical" grade exhaust enclosures. See BH000656. The EIRfuher finds that the use of a remote centralized power generator with cables runnng to the drillrig or powering the drill rigs directly from the electric grid would also reduce noise, but this is notrequired by the CSD either. Id.

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of deferred mitigation plans on such a grand scale. See e.g., Sacramento Old City Ass 'n v. City

Council, 229 CaI.App.3d 1011, 1029 (1991). Such deferred mitigation plans should only be used

when it is truly infeasible to prepare the mitigation plan prior to adoption ofthe project. Id at

1028-29; see also Rio Vista, 5 CaI.App.4th at 377. The tactic followed by the County effectively

denies both the public and publicly-accountable decision-makers the opportnity to comment on

and help shape the mitigation measures, a core purpose of CEQA. See Schoen v. Department of

Forestry & Fire Prot., 58 CaI.App.4th 556,573-574 (1997).

For example, in Rio Vista, the Cour cited to "the absence of a specific proposal for a

facility" and therefore "(a)ny further and more detailed statement of mitigation measures at this

formative state in the County's hazardous waste disposal plan would have been neither

reasonably feasible nor paricularly illuminating." Rio Vista, 5 CaI.App.4th at 376,377.

However, if it is feasible to develop numerous mitigation plans within 90 or 180 days after the

adoption of the CSD, it is certainly feasible to adopt such plans prior to approval of the CSD.

Furhermore, in Rio Vista, "the County (had) committed to subjecting to the EIR process if and

when a specific hazardous waste facility is proposed." Id. at 373. Here, unlike Rio Vista, the

County and PXP seek to avoid any additional CEQ A review for future well permit applications.

BH027676.

E. Neither the EIR Nor the Statement of Overriding Considerations Contains an

Adequate Analysis of Significant Irreversible Environmental Changes

The EIR failed to comply with CEQA Guidelines Section 15126.2(c), which requires an

EIR to identify significant irreversible environmental changes that would be caused by the

project. GUIDELINS §§ 15126.2(c); see BH002329. This provision requires a meaningful

discussion of the "uses of nonrenewable resources during the initial and continued phases of the

project," which "may be irreversible since a large commitment of such resources makes removal

or nonuse thereafter unlikely." GUIDELINES §§ 15126.2(c).

The expansion of oil and gas driling activities accommodated by the CSD involves the

irreversible use (i.e" extraction) of nonrenewable resources. The CSD contemplates ministerial

issuance of up to 53 new oil drilling permits every year. See FEIR-00171. Thus, the CSD win14314-00017/1712188.1 52


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1 accommodate the removal of millions of barels of oil that otherwise would not be accessible or

2 the extraction of which would be deferred. The ErR tried to downplay the significance of this

3 expansion by claiming that "the oil field would produce more non-renewable oil and gas than it

4 would consume." FEIR-00699. However, the "use of nonrenewable resources" that requires

5 analysis is the extraction of nonrenewable oil resources from the Oil Field over the next twenty

6 years, not the smaller amount of fuel needed for construction activities. To interpret Guidelines

7 Section 15126.2(c) in any other way would be to make a mockery of CEQ A's mandate that all

8 signficant impacts must be discussed and analyzed.

9 Nor does the County's Statement of Overriding Considerations ("SOC") identify the

10 extraction of non-renewable resources as an unmitigable significant adverse impact. GUIDELINES

§ 15126.2( c). When an agency approves a project despite significant, unavoidable environmental

impacts that canot be sufficiently mitigated, it must adopt a SOC which, like an EIR, must make

a good faith effort to inform the public. PUB. REs. CODE § 21081(b); GUIDELINS § 15093;

Woodward Park, 150 CaI.Appo4th at 718. The County's SOC must be revised to reflect the

finding that the extraction of non-renewable oil resources wil be a significant adverse impact of

the CSD that canot be mitigated. The CSD cannot be adopted unless this unitigable impact is

outweighed by economic, legal, social, technological or other benefits of the CSD.

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F. The EIR Failed To Consider A Reasonable Range Of Project Alternatives,Including Any Alternative That Does Not Foster Expansion Of The Oil Field

20 The EIR failed to consider a reasonable range of project alternatives on the mistaken

21 premise that the County had limited authority to consider a broader range of alternatives. As a

22 result, the EIR failed to consider any alternatives that would reduce or limit driling operations.

23 The EIR Considered Only a Limited Range of Project Alternatives1.

24 An ErR must evaluate "a reasonable range of potentially feasible alternatives," the nature

25 and scope of which is to be governed by the "rule of reason." GUIDELINS § 15126.6(a). The

26 range of alternatives examined in an ErR should also be designed to "foster informed decision-

27 making and public paricipation." Id; Preservation Action Council v, City of Jan Jose, 141

28 CaI.Appo4th 1336, 1354 (2006). Here, the ErR considered only three limited alternatives, which14314-00017/1712188.1 53


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the County wrongly contends "are the only other regulatory schemes available to the County for

regulating activities at the Inglewood Oil Field" (FEIR-06528; see FEIR-06474):

. A "No Project" Alternative consisting of reverting to the pre-Interim Zoning Ordinance

where new drillng was permitted by right with no discretionar review (FEIR-00674);

. A Site Plan Review where again the permit process would stil be ministerial and

therefore not subject to CEQA (FEIR-00676); and

. A traditional Conditional Use Permit process by which new wells would be evaluated on a

case by case basis (FEIR-00677).48

This was an inadequate range of alternatives because none of the alternatives studied in

the EIR involved less driling than proposed in the CSD, and moreover, the first two alternatives

are environmentally equivalent. Compare FEIR-00673-79 with FEIR-00084-105. The EIR only

studied zoning alternatives consistent with establishing 1,065 new wells throughout the Oil Field

(including 100 new wells in Culver City outside the boundaries of the CSD) paired with

abandonment of640 existing wells (including 128 existing wells in Culver City). FEIR-OOI72,

179. As a result of the improperly narow range of alternatives considered, the EIR determined

that the CSD was the "environmentally superior" alternative. FEIR-00678. This led to the

County's adoption of the County CSD, which allows an increase of 600 new wells by ministerial

permits, with no requirement for any well consolidation. BHOOI960.

2. The EIR Should Have Considered Other Alternatives As Suggested During

Public Comment

Despite receiving numerous suggestions priorto and during the EIR scoping process as to

different project alternatives (BHOI2169-2282, 12014-2100) including a "reduced drilling"

alternative, "no new driling" alternative and a "one big park" alternative, the County failed to

48 The EIR found that "(i)n many ways the CUP for the Inglewood Oil Field could accomplish the

same goals ofthe CSD by implementing project specific conditions to provide a means ofaddressing the unique compatibility concerns associated with operating an oil field in the midst ofurban development" with the difference being that the CSD would provide comprehensiveregulations all at once rather than piecemeal regulations imposed with each individualapplication. Id. It should be noted that the CSD Ordinance actually allows without limitadditional wells by CUP after the first 600 new wells to be driled by ministerial permit.BHOO 1960-61.

14314-00017/1712188.1 54


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consider any of these alternatives in the EIR. See FEIR-06474. Contrary to the legal

requirements of CEQ A, the EIR did not consider a single alternative version of the CSD.

A Reduced Driling Alternative: The EIR did not consider a reduced intensity

alternative that would have limited new driling to a net increase of less than 453 new wells over

the next 20 years. See FEIR-05598-99, 5738. In response to comments on this issue, the County

erroneously asserts "Reduced driling is not an alternative regulatory scheme and therefore was

not evaluated in the alternatives section of the EIR." FEIR-06529. Again, this statement is

inconsistent with PXP's counsel's CEB textbook on CEQA: "The following are examples of

types of activities considered in EIRs as project alternatives: A change in the density or intensity

of the project (e.g., . . . a larger or smaller commercial or industrial facility)." 1, Stephen L.

Kostka & Michael H. Zischke, Practice Under the California Environmental Quality Act, § 15.3,

p. 731 (CEB 2d ed. Feb. 2009 Update). This also ignores the fact that the County has the power

to limit, through the adoption ofthe County CSD, the number of wells that can be driled per

year. Indeed, as the County CSD allows 600 new wells to be drilled over the next 20 years, the

County could have reduced this number of wells. BH001960.49

The "No New Driling" Alternative: The EIR also did not consider a "No New

Driling" alternative despite that fact that more than 436 wells remain in production, 207 water

injection wells remain in use, and 177 wells are idled. FEIR-00128. In its response to comments

on this issue, the County incorrectly stated that the No New Drillng Alternative was

inappropriate because "(t)he application submitted by PXP was for a regulatory scheme and did

not involve any proposed development" (FEIR-0611O) and "(t)he County is not legally allowed to

place a permanent moratorium on the oil field without compensating PXP and the landowners."

FEIR-06528. This response, however, fails to acknowledge that the County could legally adopt

an ordinance prohibiting all new driling. See Beverly Oil Co. v. City of Los Angeles, 40 CaI.2d

552 (1953); see also FEIR-06528-29. In Beverly Oil Co., plaintiff challenged a city ordinance

49 The EIR did not even consider an alternative that assumed no abandonment of any existing

wells, although the County CSD does not require any existing wells to be abandoned (while theEIR assumed that 640 existing wells would be abandoned over the course of the next 20 years).FEIR -00179.

14314-00017/1712188.1 55


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permanently forbidding expansion of existing oil drilling operations. In upholding that ordinance

the Californa Supreme Cour stated: "It must be deemed to be well settled that the enactment of

an ordinance which limits the owner's property interest in oil bearng lands located within the city

is not of itself an uneasonable means of accomplishing a legitimate objective within the police

power of the city." 40 CaI.2d at 558; cited with approval in Hansen Bros Enters., 12 CaI.4th at

551,552 & 553.

Finally, the County asserted that the EIR did not need to consider the No Drillng

Alternative because "the EIR did identify development restrictions as mitigation measures that if

incorporated in the final CSD would serve to reduce or eliminate potentially significant

environmental impacts." FEIR-06110. However, ths response fails to account for the fact that

the EIR on its face finds that seismic risk and cumulative traffc impacts cannot be mitigated.

FEIR-00378, 379, 500; BH002226-28; BH002239-41. Furhermore, as discussed in Section IVE

herein, the EIR failed to acknowledge other unitigable significant impacts, including the

extraction of nonrenewable resources. Thus, consideration of project alternatives is necessary.

The One Big Park Alternative: The EIR should have also considered the "One Big

Park" alternative. In May 2002, the California Deparment of Parks and Recreation, in concert

with the Baldwin Hills Conservancy, published the Baldwin Hils Park Master Plan (the "Park

Master Plan") as required by Public Resources Code § 32565.5(f). See PUB. REs. CODE § 32555;

BH007927-00232. The Park Master Plan was envisioned as creating the largest new urban park

in the U.S. in the past 100 years "to serve as a guide for future natural open space and parkland

acquisition and improvements, facility development and habitat restoration within the Baldwin

Hils, and for connections to trails, parks and other public facilities." BH007927-00133. The

EIR's failure to consider the One Big Park alternative has environmental justice implications

because, as acknowledged by the EIR, the "area surounding the Baldwin Hills is one of the most

park-poor urban areas in California, with less than 1 acre of park space per 1,000 people, far

below the nationally recommended standard of6 to 10 acres per 1,000 people....Lack of parks

has a profound effect on the quality oflife of the citizens of the affected areas. Availability of

parks and recreational opportunities have a direct effect on health, youth development, education,14314-00017/1712188.1 56


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public safety, conservation values and economic values, among others, for any given

geographical area." FEIR-00580; see also BH007927-00133.

In the County's response to comments, the County argues, "one big park is not an

appropriate alternative to the proposed CSD, again since the 'project' is not a development

project." FEIR-06110. This response is both wrong (for the reasons stated in Section IV A

above )50 and misses the mark because; the One Big Park Alternative would study zoning and

regulatory measures intended to foster gradual conversion of the Oil Field to parkland. This

could include regulations that mandate greater consolidation of new wells, the rate of new drillng

(including the possibility of isolated areas of accelerated drilling if that leads to swifter

conversion to parkland), establishment of future conservation easements, the imposition of

parkland mitigation fees for new driling, rezoning of the existing land to open space, and the like.

Such measures are not "projects" but rather are legislative and regulatory in nature. Indeed,

PXP's co-counsel Zischke writes, "In the context of a land use plan... the types of alternatives

discussed in an EIR many include different uses of land on the project site. .." 1, Stephen L.

Kostka & Michael H. Zischke, Practice Under the California Environmental Quality Act, § 15.3,

p. 731 (CEB 2d ed. Feb. 2009 Update).

The County additionally asserts that this alternative is speculative "because, among other

things, a majority of the land is privately owned, and the operator has rights, at a minimum, to

continue existing operations for a substantial amount of time." FEIR-06110. This response

ignores the fact that the owners and operators have already had decades of continued, unfettered

operations to amortize their investment in the Oil Field and that the conversion to parkland is a

long-term vision that requires gradual implementation:

There is a compelling need for a comprehensive vision to unify the manypieces that make up the Baldwin Hills -- a plan that can be implementedover time so that 100 years from new the area is a vibrant, living place thatmeet the complex needs of people, wildlife and habitat. .. We recognizethe need for a new definition of 'park' -- one that moves far beyond old,common perception. .. It must be understood that it may take many yearsto pull these pieces together. BHOO 1884-06965 (emphasis added).

50 See GUIDELINS § 15378(d); City of Carmel- By- the-Sea, 183 CaI.App.3d at 244.


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The County's response assumes that the One Big Park Alternative requires immediate

conversion to a giant park, which is not what is contemplated in the Park Master Plan.

v. THE COUNTY IMPROPERLY FAILED TO RECIRCULATE THE EIR

The County should have recirculated the EIR to allow for additional public comment

because the "project" changed and signficant new information was added to the EIR. See PUB.

REs. CODE § 21092.1; GUIDELINS § 15088.5; BH002496-2500. As discussed in Section IVA

above, although the "project" the EIR analyzed was the PXP CSD (BHOI7708-00126-147), the

County CSD differed drastically from the PXP CSD. BH005407:6-13. As a result, the EIR did

not, and could not, analyze the adverse impacts from the County CSD. !d. The County also

should have recirculated the EIR to afford the public with an opportnity to comment upon the

significant information that was added to the EIR for the first time.

For example, the EIR included for the first time reference to the January 2006 Noxious

Gas Release. FEIR-00270, 271, 272, 292. Similarly, the EIR included the first reference to the

2008 Spill resulting in the release of oil to the storm drain leading to Ballona Creek. FEIR-

00041, 144,229,252-53. And, the EIR included for the first time the complete odor map

showing the significantly impacted and secondarly impacted areas that would be affected by

another release of noxious gases, such as occured in January and Februar 2006. BHOI7708-

00255. The map showing these impacts in the DEIR was cropped (see FEIR-06078), which

meant that it did not show the full extent of the impacted areas, including to various schools and

tens of thousands of residents. BHOI7708-00255.

Not only is this information significant from a public health, safety and environmental

impact basis, the Januar 2006 Noxious Gas Release was the defining event that galvanized the

community to take action leading to the County's adoption ofthe Interim Ordinance (FEIR-

00271) and the initiation of the CSD process itself. BH002024, 2037-45; see also Brief § IIB

infa. By failing to include any discussion of the release in the DEIR, the adequacy ofthe ErR's

description and assessment of the environmental significance of that event and how the County

proposed to address the risks related to such incidents, the ErR was inadequate. See Laurel

Heights Improvement Ass 'n of San Francisco v. Regents of the Univ, of California, 6 CaI.4th14314-00017/1712188.1 58


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1112, 1129 (1993); see also Federation of Hilside, 83 CaI.Appo4th at 1258. Moreover, the fact

that the public expressed such concern over these events (see, e,g., FEIR-06361, 6366, 6418,

6462,6472) provides further support for why the County should have recirculated the EIR. See

Save Our Peninsula Comm" 87 Ca1.Appo4th at 131 (recirculation warranted when additional

information is an issue of "public concern").

Furhermore, the EIR added signficant new data and information including, without

limitation: (1) over 4,000 pages of new air modeling results (starting at FEIR-00797); (2) new

potential impacts from the Project to Geological Resources and Noise and Vibration (FEIR-

00382-384,567-570); (3) 44 new mitigation measures that were not discussed in the DEIR

(FEIR-00253, 285, 292, 342, 376, 383-84, 430, 433-34, 436, 464, 466-67, 559, 560-61, 563, 565,

566,568-69,570,606,607,634,651); (4) critical tables changed between the DEIRand EIR with

little to no explanation;51 and (5) the EIR found that the potential risk of cancer without

mitigation is three times higher than found in the DEIR and that the mitigated risk was almost

twice the risk found in the DEIR (Compare FEIR-00332 with BHOI7708-00302). Despite these

changes, and numerous requests to recirculate the EIR (FEIR-05738, 5993; BH002319, 2464,

3138,3215,3217,3226,5407,6742,6743,6781,6794, 8394, 9208), the County chose not to

recirculate the EIR. As the County's decision not to recirculate the EIR is not supported by

substantial evidence, the County's certification of the EIR should be vacated and the EIR

recirculated before certification. See GUIDELINES § 15088.5(e); see e.g., FEIR-05909-10.

VI. IN ITS RUSH TO ADOPT THE CSD, THE COUNTY FAILED TO REFERSUPERVISOR BURK'S AMENDMENTS BACK TO THE PLANNINGCOMMISSION FOR REVIEW AND RECOMMENDATION AS REQUIRED BYCOUNTY CODE

County Code § 22.16.210, which mirrors Governent Code § 65857, mandates: "(A)ny

modification of the proposed zone change or amendment by the board of supervisors not

previously considered by the (Regional Planing) commission during its hearing, shall first be

51 For example, the majority of the numbers in Table 4.204 have changed substantially with littleexplanation. Table 4.2.5, which appeared in the DEIR was apparently combined with Table4.204, resulting in the "Grading Emissions" being added to the "Drilling Emissions."Inexplicably, however, rather than this resulting in an up tick of the "Drilling Emissions"numbers, somehow these emissions numbers were reduced in the EIR.14314-00017172188.1 59


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1 referred to the commission for report and recommendation." As discussed above, during the

2 October 21,2008, hearng, in addition to moving to certify the EIR, Supervisor Burke moved to

3 modify the County's draft CSD in certain important respects, which the Board passed. See Brief

4 § IIF infra; BH022171-022176; see also BH027725-26. Although the Planning Commission did

5 not previously review, consider or discuss any ofthese amendments, the Board directed County

6 staff to incorporate Supervisor Burke's amendments into the revised County CSD. BHOOI891.

7 The changes to the CSD are potentially harmful to the surrounding communities and natural

8 environment. Despite Petitioners' request that the amendments be referred back to the Planning

9 Commission before adoption ofthe CSD in compliance with the County Code (BH027725-26),

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the County refused to refer the CSD amendments back and adopted the revised CSD on

October 28,2008. BHOOI989.

VII. CONCLUSION

For each and all of the foregoing reasons, the ErR was improperly approved and the CSD

was improperly adopted. The relief prayed for in the Petitions should therefore be granted. The

Court should reserve jurisdiction to award attorneys' fees to Petitioners pursuant to Code of Civil

Procedure § 1021.5.

DATED: December 1,2009 Respectfully Submitted,-'1

GREENBE~~. GlbS R FIELDS CLAMAN& MACHI;ftG/7t L

By: ( /~DAV D . C ONAttorneys For Petitioner CITY OFCULVER CITY

28

14314-00017/1712188.1 60


1 DATED: December t 2009

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6 DATED: December 1,2009

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19 J?ATED: December 1, 2009

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14314-00017/1712188,1

Respectfy Submitted,

CITY OF CULVER CITY

By:f1-4~CAROL A. SCHWABAttorneys For Petitioner CITY OF CULVERCITY

Respectfly Submitted,

HAING LARORE MULEN JAKEKUTCHER & KOZAL LLP

By:KETH L. KUTCHERAttorneys for Petitioners COMMITYHEALTH COUNCILS, INC., NATURRESOURCES DEFENSE COUNCIL &MA SALKI

Respectfully Submitted,

NATU REsouRCES DEFENSECOUNCIL

By:DAMÖN NAGAMAttorneys for Petitioner COMMUNTYHEAL TH COUNCILS, INC., NATURESOURCES DEFENSE COUNCIL &MA SALKI

Respectfly Submitt.ed~' .

TH CITY PROÆCT

By:ROBERT GARCIAAttorneys for Petitioner CONCERNDCITIZENS OF SOUTH CENTR LOSANGELES

61

PETITIONERS' OPENING BRIF

DEC-01-2009 13: 07 1 LAW

DATED: December 1,2009

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14314-000171171218a.1

310 3'32 3537 F',02


CITY OF CULVER CITY

By:CAROL A. SCHWABAttorneys For Petitioner ClTY OF CULVERCITY


HARING LARMORE MULLEN JAKLEKUTCHER & KOZAL LLP

By: ~~_KENNETH L. KUTCHERAttorneys for Petitioners COMMUNITYHEALTH COUNCILS, INC" NATURALRESOURCES DEFENSE COUNCIL &MARKSALKTN


NATURAL RESOURCES DEFENSECOUNCIL

By: ,DAMON NAGAMIAttorneys for Petitioner COMMUNITYHEALTH COUNCILS, lNC., NATURALRESOURCES DEFENSE COUNCIL &MARK SALKIN


THE CITY PROJECT

By: ___,ROBERT GARCIAAttorneys for Petitioner CONCERNEDCITIZENS OF SOUTH CENTRAL LOSANGELES

61

PETITIONERS' OPENING BRJEl~'

1 DATED: December 1,2009 Respectfully Submitted,

2 CITY OF CULVER CITY

3By:

4 CAROL A. SCHWABAttorneys For Petitioner CITY OF CULVER

5 CITY

6 DATED: December i, 2009 Respectfully Submitted,

7 HARING LARORE MULEN JAKEKUTCHER & KOZAL LLP

8

9 By:KENNTH L. KUTCHER

10 Attorneys for Petitioners COMMITY:z HEALTH COUNCILS, INC., NATURL-(~ 11 RESOURCES DEFENSE COUNCIL &-(

MAR SALKIN .. "'0U 00\ 12o V"(/ i: ¡¡ 1"

DATED: December 1, 2009 Respectfully Submitted,Q..i;~....-o 13i; NO- Q: -0\ NATURL RESOURCES DEFENSE¡; i; '"Q: e" ~ '§ 14 COUNCILi; :z Q).s:: ¡: £:.

By: ~~ J' 71r¡g :i 'õ ü 15..u g,,í--(i:~~"''' 16í- ;. bl~~~~ DAMON NAGAMIi; 0 '" Attorneys for Petitioner COMMUTYi: 0\ 0 17 HEALTH COUNCILS, INC., NATURL:z -..i; RESOURCES DEFENSE COUNCIL &i; 18 MARK SALKINQ:í-

19 DATED: December 1,2009 Respectfully Submitted,

20 THE CITY PROJECT

21

22By:

ROBERT GARCIA

23Attorneys for Petitioner CONCERNDCITIZENS OF SOUTH CENTRAL LOS

24ANGELES

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14314-o0017/1712188,I 61

PETlTIONERS' OPENING BRIEF

DATED: December I, 2009 Respetful1y Submitted,

2 CITY OF CULVER CITY

3

By:4 CAROL A, sciiwÃI--

Attorneys For Petitioner CITY OF CULVER5 CITY

6 DATED: December 1. 2009 Respectfuly Submtted

7 HAING LARORE MULLEN JAKEKUTCHER & KOZAL LLP

8

9 By:_KENNETH L. KUTCHER

10 Attrneys for Petitioners COMMUITYzHEALTH COUNCILS, INC" NA TIRAL..

~ 11 RESOURCES DEFENSE COUNCIL &.. MARSALKl.. .~\) 8.. 12"'~¡;"

DATED: December 1,2009 Respectfully Submitted,9..1i......;:~ l3-~ .NATURAL RESOURCES DEFENSE""r.~ ~

ei\. 'Ë 14 COUNCIL~~ u.s¡.-£""~:t'õ(J 15

.JU u o.By:_o~ ¡¡J!" ,.1; 16 DAMON NAGAMIø:oI-'¿

'" ~ S 17Attorneys for Petitioner COMMUNfTY

~ -~ HEALTH COUNCILS, INC,. NATIRALi. RESOURCES DEFb~SE COUNCIL &..

18 MARK SALKINei"19 DATED: December 1,2009 Respectfully Submitted.

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22By:

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14314-0111112183.1 61

PETITIONERS' OPENING BRJF

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14314"(OOI7/1712188,1

Respectfly Sublltted,

LAW OFFICES OF TODD T. CARIFF

By:3cWffAttorneys for Petitioner ~N'SCOALITION FOR A SAFE COM:TY

62

PETlTIONERS' OPENING BRIF

~ 0' - The City Project · City Attorney 2 HEATHER S. BAKR ... the Public and Adopts an Emergency...

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