This letter was sent to the Kern County Board of Supervisors on April 13, 2021, for the proposed Resolution and Ordinance granting a 20-year non-public utility pipeline franchise to CalBioGas Buttonwillow LLC. Update, April 14, 2021: The Kern County Board of Supervisors approved this item 5-0.

Leadership Counsel for Justice and Accountability, The Center for Race Poverty and the Environment, Central California Environmental Justice Network, Central California Asthma Collaborative, and the Central Valley Air Quality Coalition, write in opposition to the CalBioGas Buttonwillow LLC pipeline franchise (Pipeline Franchise).

Our opposition is based on the County’s incorrect finding that the project is exempt from environmental review pursuant to the California Environmental Quality Act (CEQA), the County’s failure to fully assess and ensure mitigation of environmental impacts of the Pipeline Franchise, and the significant impact the project will have on already burdened communities.   

The Pipeline Franchise Project Is Not Exempt From Requirements to Conduct a Full Environmental Review Pursuant  to CEQA.

In a staff report dated March 9, 2021, the County’s Planning and Natural Resources Department (Planning Department) determined that the Pipeline Franchise is exempt from the provisions of CEQA pursuant to sections 15301 and 15061(b)(3) of Title 14 of the California Code of Regulations (CEQA Guidelines). 

Section 15301 of the CEQA guidelines provides for a categorical exemption to “the operation, repair, maintenance or minor alteration of existing public or private structures, facilities and mechanical equipment involving negligible or no expansion of existing or former use beyond that existing at the time of the lead agency’s determination. Cal. Code Regs., tit. 14, § 15301 (Emphasis added). The key consideration is whether the project involves negligible or no expansion of use.” Id. 

Here, the Planning Department is recommending the approval of an entirely new project, specifically a pipeline  franchise to construct, install, maintain, inspect, operate, repair, renew and remove non-public utility pipelines. (See Staff Report). Based on our review of the staff report and other relevant materials, there is no existing use. Moreover, the Franchise Pipeline will encourage significant expansions of participating dairies, which we address briefly below. 

Courts have established that, “in keeping with the general principles of statutory construction, exemptions are construed narrowly”. Cty. of Amador v. El Dorado Cty. Water Agency, 76 Cal. App. 4th 931, 966 (1999). No interpretation of the exemption –  much less a narrow interpretation as required by law – applies to the proposed Pipeline Franchise project.

The proposed project simply does not qualify for a categorical exemption pursuant to Section 15301. 

Section 15061(b)(3) of the CEQA Guidelines states that a CEQA exemption only applies “where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment”. Cal. Code Regs., tit. 14, § 15061(b)(3). The proposed Pipeline Franchise is not exempt under section 15061(b)(3) since the project does in fact have the potential of causing a significant effect on the environment, as discussed below. Moreover, the County cannot find, as a matter of law and without environmental review, that it can be “seen with certainty” that the project will not have a significant effect on the environment. 

Environmental Impacts of a BioGas Pipeline and Dairy Digester

The County has not taken the required steps to assess the environmental impacts of a biogas pipeline and dairy digesters as is evident in the County’s decision to provide the Franchise a categorical exemption pursuant to section 15061(b)(3). 

The County Has Failed to Evaluate the Impacts of Gas Production and Transport 

Gas leaks from pipeline transport are common and can lead to serious environmental impacts as a result of gas leaks. A biogas leak can result in high levels of methane released into our air, and biogas leaks have the potential to cause explosions as a result of gas mixtures in confined spaces. The Pipeline Franchise staff report does not assess any impacts of gas production or transport, nor does it include a discussion on mitigation strategies for gas leaks or monitoring parameters of biogas pipes or tanks. The County must conduct a full environmental impact review to ensure the gas production and transport will not lead to serious environmental impacts.  

The County Has Failed to Evaluate the Impacts of Pipeline Construction 

Documents provided related to the Pipeline Franchise do not provide information on the details of or construction of the pipeline, other than vague information on the diameter of the pipe, listed as “no more than 13 inches.” Moreover, the staff report does not provide a discussion on environmental impacts from the construction of the pipeline. A similar but smaller project – the BioEnergy Solutions Franchise Application – was reviewed by the County in 2008 and subject to environmental review. The environmental document supplied with that project identified “potentially significant impacts” for air quality, cultural resources, geology and soils, hazards and hazardous materials, hydrology and water quality, mineral resources, noise, transportation and traffic, and biological resources. The 2008 assessment of the BioEnergy Solutions Franchise Application also reviewed potential impacts to operation and area sources of emissions including reactive organic gases, oxides of nitrogen and particulate matter, potential impacts from the stationary sources, and odors and exposure of pollutants concentrations to sensitive receptors. 

The County must undertake environmental review to assess the construction impacts related to this approval along with adequate mitigation measures. 

The County Has Failed to Evaluate the Impacts of Expanded Dairy Operations 

Introduction of a biogas pipeline will incentivize increased production of biogas, and thus, increased production of manure, and, thus, increased numbers of and concentrations of cows in dairies with access to the pipeline. 

Research shows that only large-scale dairies provide the economies of scale necessary to justify the installation of a dairy digester. Notably, the dairies that will be served by the Pipeline Franchise range in capacity from 5,000 to 11,000 cows. As opportunities increase for the sale of biogas, the dairies will grow in size to take advantage of the economic opportunities that the Pipeline Franchise expands. 

Confined Animal Feeding Operations (CAFOs) such as the eight dairies served by the Pipeline Franchise, contribute to climate change and air and water pollution, and produce significant and harmful greenhouse gas emissions. Methane, emitted from wet manure and enteric emissions is a climate pollutant far more potent than carbon dioxide. Dairy digesters do nothing to address the methane from enteric emissions. To the extent that the Franchise Pipeline may result in an increase of methane emissions from increased herd sizes, full environmental review of the Franchise Pipeline is necessary and legally required. 

Air quality and groundwater impacts

Dairies emit harmful pollutants into the air that impact health and safety for nearby communities and the region as a whole.  Dairies emit ammonia and smog-forming volatile organic compounds (VOCs) and are a significant source of fine particulate matter in the San Joaquin Valley.  Increased dairy sizes and expanded dairy operations will increase these emissions and air pollution in ways that are harmful to the environment and especially harmful to nearby communities. 

Manure in CAFOs has significant impacts to groundwater and potentially drinking water quality, especially in the form of nitrate contamination. Nitrate from wet manure lagoons leaks into groundwater and land application of manure (with or without digestion prior to the land application) creates widespread nitrate pollution. Increased herd size, increased concentration of cows, and increased concentration and volumes of manure will increase nitrate discharges to the groundwater, impacting environmental quality and drinking water supplies.  

An environmental assessment on potential climate, air, and water impacts of the Pipeline Franchise is required.  Additionally, due to the close proximity of the dairies and pipelines to the communities of Shafter, Buttonwillow, and Rio Bravo Greely, an analysis of impacts of exposure to sensitive receptors must be conducted.  The County has failed to evaluate impacts to public health in neighboring communities. Finally, to the extent that the communities most impacted by this project are communities of color, the County’s approval of the pipeline would disproportionately impact communities of color in violation of civil rights laws and housing laws. The County must ensure that lower income communities of color are not disproportionately impacted by this project. 

Violation of Environmental Regulations 

As noted above, current herd size capacity for the eight participating diaries, based on the Buttonwillow Cluster map provided by Kern County, range from 5,000 to 11,000 cows. This of course only represents the reported herd sizes. According to the California Integrated Water Quality System Project violations,  Southern Cross Dairy was in violation of unreported herd sizes on their Report of Waste Discharge (violation of Section 22560(b) of Title 27, California Code of Regulations). Southern Cross Dairy was cited for having 6,450 mature cows, rather than the reported 3,850. Yet Kern County provides no analysis of the extent to which the participating dairies comply with relevant regulatory requirements, and / or steps that the County will take to ensure ongoing compliance. 

Requirement of Adequate Environmental Review

The categorical and statutory exemptions cited for the Buttonwillow CalBioGas Franchise project are not appropriate or legally compliant given the scope of the proposed project, and the likely environmental impacts.  

The County’s unlawful use of a CEQA exemptions will cause environmental and public health harms. Moreover, without full environmental review communities that will be most impacted by this project will have no opportunity to inform its development and ensure adequate environmental, health, and safety protections. 

We look forward to engaging in a robust environmental review of this proposed Pipeline Franchise and again restate our opposition to approval at this time and the legal inadequacy of the County’s proposed decision. 

For questions on this issue, contact Leadership Counsel Policy Advocate Emma De La Rosa at edelarosa@leadershipcounsel.org.