Law is open to interpretation, and the California Environmental Quality Act (CEQA) is no exception. However, misuse of that freedom to interpret can block potentially worthwhile projects.
On Tuesday, at the Mono County Board of Supervisors meeting, lawyers gathered to argue their interpretations of CEQA as it relates to an Environmental Impact Report (EIR) prepared for Ormat’s proposed new geothermal plant.
Last month the EIR for Ormat’s Mammoth Pacific I Replacement Project, or M-1, was reviewed and approved by the Mono County Planning Commission. The project would allow Ormat to build a new state-of-the-art geothermal plant to replace the existing plant, which is 25 years old.
Shortly following that approval, two labor union groups, Laborers’ International Union of North America (LIUNA) and the California Unions for Reliable Energy (CURE) appealed the Planning Commission’s decision, which led to the appeal before the Board.
All over the state of California appeals such as these are popping up. It seems that some labor unions are hiring environmental lawyers to exploit California’s environmental protection laws. Many believe the purpose of this stalling mechanism is to allow labor unions to force private developers to agree to union-only Project Labor Agreements.
The Board of Supervisors, however, would not be bullied. It spent nearly five hours listening to and arguing with Elizabeth Klebaner (representing CURE) and Mitchell Tsai (representing LIUNA) as the two lawyers subsequently presented their appeals.
Klebaner went first and argued that the EIR was not adequate based on several reasons, including its failure to discuss mitigations for negative affects on air quality and potential biological threats to the Tui chub in the area.
Supervisor Larry Johnston baited Klebaner by asking if she had consulted with the Great Basin Unified Air Pollution Control District (GBUAPCD) regarding air quality, since it is the governing body for air quality in the Eastern Sierra.
“No, and I wish someone was here from the air quality board,” Klebaner said.
Both Johnston and Supervisor Tim Hansen sit on that board and Johnston told her so.
“The new project will have less emissions than the old one, so your argument [that the new project will be detrimental to local air quality] fails,” Johnston said.
Klebaner tried to argue that while the new plant was coming online both the old plant and the new plant would have to be run at the same, therefore increasing emissions and negatively affecting air quality.
However, a letter from the GBUAPCD in response to CURE’s assumptions stated that while the two plants are being operated together, emissions levels would be the same as the current level being emitted by the old plant. Once the new plant is fully online and the old plant was no longer being run, there would be fewer emissions produce because the new plant would be more efficient.
Even Klebaner admitted that the new plant would emit fewer pollutants into the air.
For Supervisor Hansen, the letter from the GBUAPCB sealed the deal to uphold the Planning Commission’s decision.
“The Great Basin Unified Air Pollution Control District doesn’t let anyone slide,” he said. “They’d fine their own grandma.”
In regard to the Tui chub, Supervisor Hap Hazard pointed out that he had lived downstream from the existing plant for years. “Where are the chub?” he asked.
Klebaner rattled off some site names, but had no idea where they were actually located. Mono County Economic Development Director Dan Lyster was able to help clarify.
“They’re at the hatchery site itself, which DFG clears out periodically,” he said. He was unaware of any negative impacts from the geothermal plant over the years.
Several members of the public spoke in support of the project, including Curt Vannest. “I’m for this project and all projects in the economy right now,” he said. “Get rid of the people throwing in wrenches where wrenches don’t need to be.”
By this time the Board had heard enough.
“I’m embarrassed by this appeal,” said Supervisor Byng Hunt. “It’s a blatant overuse of CEQA. You should be putting resources into recruiting and organizing unions. The EIR is sound and Ormat is a proven good neighbor.”
Johnston agreed. “This is a complete embarrassment and terrible use of the law,” he said, adding that he believed the project should have only required a Negative Declaration, not an EIR since one plant is replacing another.
Hazard compared the situation to the proponents of mining in the Bodie Hills who had come before the Board last year.
“I compared these proponents to snake oil salesmen,” he recalled, because they had not proven themselves either financially or as good neighbors to the community. “But I have seen the financial impacts of the geothermal plant.”
Supervisors Vikki Bauer and Hansen agreed and the Board voted 5-0 to uphold the Planning Commission’s decision.
Next up was the appeal from LIUNA, presented by legal representative Mitchell Tsai. The Board was just as tough on Tsai as it had been on Klebaner.
Since several of Tsai’s issues with the EIR overlapped with the issues Klebaner had raised, he stuck to the one issue that had not been discussed — the alleged negative affects on the “quality” mule deer habitat where the geothermal plant is located.
Tsai used a report compiled by LIUNA’s “expert biologist” to make his argument. The report claimed that new lineal barriers proposed (i.e. the green pipes that are visible above-ground) for the project would hinder the deer herd from accessing the habitat at the plant.
Supervisor Johnston asked Tsai what he considered “quality” habitat.
“I’m not a biological expert myself, so I can’t answer that” Tsai said, “but the applicant himself stated that workers have seen deer feeding out there.”
“But that doesn’t mean it’s ‘quality’ habitat,” Johnston argued.
“Experts can disagree,” Tsai said. He added that the EIR stated there should be no additional lineal barriers, but the project was proposing 2,000 more feet of the pipes.
“We are requesting that the piping be placed underground, that the old plant be completely decommissioned [currently the plan calls for the old site to be used as storage], and that construction schedules be adjusted to account for deer migration,” Tsai said.
He admitted that his expert had not been onsite to observe the deer. His report was compiled from 20-year old reports on the deer population, but he claimed since they were based on a healthy deer population, they were still valid.
Again, Johnston pointed out that the new piping would be smaller than the current piping, so if the deer had no problem getting around the old piping, the new should not be a problem either.
Tsai estimated that the new piping would be 2-3 feet high.
“My dog could jump over that,” Supervisor Hazard said. “I’ve seen carcasses of deer on the highway that have had to jump five foot fences to get there.”
Tsai continued to stress that the County, as the lead agency for the EIR, would have a problem with CEQA if it didn’t mitigate for the language in the EIR that said no new barriers.
“If it’s a significant impact you need mitigation,” Johnston retorted. “The main herd is actually on the other side of the 395. This area has been studied more than any other area in the country [for deer].”
Again, the Board voted unanimously to uphold the Planning Commission’s decision to approve the EIR. It also voted unanimously to approve a General Plan amendment to clarify language regarding setback variances for the project.
The unions have 30 days from the time the County files its Notice of Determination regarding this matter to file a lawsuit, which would be the next step in the process if the appealing parties choose to continue.