The court held that the EIR’s mitigation measure for aircraft safety impacts, requiring that wind turbines be reviewed by the Federal Aviation Administration before issuance of building permits, was feasible and enforceable. The court also held that substantial evidence supported the EIR’s conclusion that the mitigation measure would be effective to mitigate impacts on aviation safety. Citizens Opposing a Dangerous Environment v. County of Kern (June 30, 2014, Case No. F067567) was certified for partial publication on July 25.

The case arose from the County of Kern’s approval of a conditional use permit for the operation of a wind farm in the Tehachapi Wind Resource Area. The county approved the CUP for the construction of wind turbines, up to 500 feet tall, after preparing an EIR. The EIR determined that the wind turbines might pose significant safety hazards to aircraft and gliders using a nearby private airport. The county, therefore, adopted a mitigation measure requiring the project applicants to obtain a “Determination of No Hazard to Air Navigation” from the Federal Aviation Administration (FAA) for each wind turbine prior to issuance of building permits. Citizens Opposing a Dangerous Environment (CODE) filed a petition challenging the EIR on various grounds. The trial court denied the petition and CODE appealed.

CODE’s principal challenge on appeal was to the validity of the aircraft safety mitigation measure. CODE argued that the EIR failed to describe an adequate mitigation measure as a matter of law because the measure would not avoid or minimize significant impacts to aviation safety. The court disagreed, noting the mitigation measure’s requirement that the applicant obtain FAA certification for each wind turbine prior to construction. The court then pointed to other CEQA cases holding that mitigation measures requiring compliance with existing regulatory schemes are common and reasonable. And since federal law occupies the entire field of aviation safety, the court found it reasonable to expect compliance with FAA regulations by the applicants.

CODE also argued the aircraft safety mitigation measure was infeasible because the FAA could not legally block the project through enforcement of its “hazard/no-hazard” determinations. But the court noted the evidence suggested the hazard/no-hazard determinations can have a substantial practical impact on projects, even if the FAA did not directly have the power to halt the project. In any event, the mitigation measure made issuance of building permits for each wind turbine contingent on FAA approval. So while the FAA could not directly halt construction of the project, the county, through its police power, could. Therefore, the court determined the mitigation measure adopted to protect aircraft safety was feasible and enforceable, and the EIR’s conclusion that the mitigation measure would be effective was supported by substantial evidence.

The court also rejected CODE’s claims that the EIR should be set aside because the county failed to respond to late comments and that the county was required to adopt either CODE’s proffered mitigation measure or the EIR’s “environmentally superior alternative.”