Archive for July, 2017


Cleveland National Forest Foundation v. San Diego Association of Governments (2017) ___ Cal. 5th __ (Case No. S223603) (July 13, 2017).

In a 6/1 opinion, the California Supreme Court held that the San Diego Association of Governments (SANDAG) did not abuse its discretion by failing to present a consistency analysis in the EIR for its 2011 regional transportation plan (RTP) comparing anticipated GHG emissions with the long-term reduction goals presented in Executive Order (EO) S-3-05. The court reasoned that SANDAG had adequately informed the public, using information available at the time, of inconsistencies with overall state climate goals.

In 2011, SANDAG issued its RTP as a 40-year blueprint for regional transportation planning. The RTP was accompanied by an EIR that used three thresholds of significance to assess GHG impacts. Compared to existing (2010) conditions, the EIR found GHG impacts to be “not significant” in 2020, but significant in both 2035 and 2050. The EIR also analyzed GHG emissions against statutory goals for the years 2020 and 2035, but did not compare emissions against the long-term (2050) goal set forth in EO S-3-5 (80 percent below 1990 levels by 2050).  In response to comments that were critical of the GHG analysis, SANDAG maintained that it had no obligation to analyze projected GHG emissions against the Executive Order.

Several groups filed lawsuits challenging the EIR and the Attorney General later joined the petitioners. The superior court found the EIR inadequate and issued a writ of mandate. The Court of Appeal affirmed, holding that, among other flaws, the EIR violated CEQA by failing to measure GHG impacts against the Executive Order.

The Supreme Court granted review on the following question: “Must the environmental impact report for a regional transportation plan include an analysis of the plan‘s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05 to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)?”

Addressing this question, the Supreme Court held that the EIR was not required to include an express analysis of GHG impacts compared to the Executive Order’s goals. The court was careful, however, to limit its holding to the facts before it, explaining that it was holding “only that SANDAG, in analyzing greenhouse gas impacts at the time of the EIR, did not abuse its discretion by declining to adopt the Executive Order as a measure of significance or to discuss the Executive Order more than it did.” The court noted that this level of analysis would not “necessarily be sufficient going forward.”

Finding that an express consistency analysis was not required, the court disagreed that the EIR obscured the statutory framework or statewide goals, although it conceded that SANDAG could have presented the information in “clearer or more graphic” ways. Because the EIR presented anticipated GHG emissions in 2050 and discussed the long-term goals in the Executive Order, the court found that the information was “not difficult” for the public to obtain to conduct a consistency analysis. The court stressed that the inclusion of this information in responses to comments instead of the EIR itself was “not an infirmity” because it would be expected that members of the public “interested in the contents of an EIR will not neglect this section.”

The court acknowledged the parties’ understanding that an executive order does not carry the “force of a legal mandate” when preparing a CEQA document but did not discuss this issue further. Nor did the Court prescribe this specific outcome for other agencies but instead repeatedly asserted the “narrowness” of its ruling and that planning agencies must ensure their analysis keeps up with “evolving scientific knowledge and state regulatory schemes.” In reversing the Court of Appeal’s judgement, the court ruled only that the 2011 analysis of GHGs emissions did not render the EIR inadequate. The court declined to express an opinion on other deficiencies identified by the trial court and Court of Appeal.

In a comprehensive dissent that included a detailed discussion of the legislative framework, Justice Cuéllar maintained that SANDAG’s EIR lacked “good faith reasoned analysis” because it obscured important GHG information. Justice Cuéllar pointed to the “relative clarity of statewide statutory goals” as reasoning why SANDAG did not have the discretion to downplay the GHG consequences of its RTP. Further, he expressed concern that the majority’s ruling could allow other regional planning agencies to “shirk their responsibilities.”

Remy Moose Manley (Whitman F. Manley, Laura M. Harris, and Christopher L. Stiles) submitted an Amicus Curiae brief in support of SANDAG.

[Casey Shorrock Smith]

Friends of Outlet Creek v. Mendocino County Air Quality Management District (2017) 11 Cal.App.5th 1235.

The First District Court of Appeal held that a responsible agency air quality management district may be sued under CEQA, but such suit must be limited to the agency’s specific discretionary action and may not challenge prior lead agency approvals. In addition, the court held that such an action must be brought as an administrative mandamus proceeding under Code of Civil Procedure section 1094.5.

In 2014, Grist Creek Aggregates, LLC (Grist Creek), initiated a process with Mendocino County to resume aggregate and asphalt production after years of reduced operation due to market conditions. The site had been used for aggregate and asphalt production since 1972. In 2009, the county updated its general plan and certified an EIR to, among other things, change the land use designation at the site from rangeland to industrial, and in 2010, the county rezoned the site to conform to the updated land use designations. No legal challenges were brought against the county’s actions.

In response to Grist Creek’s request to resume aggregate and asphalt production, the county Board of Supervisors issued a March 2015 resolution declaring that the resumption of asphalt production was neither a new, nor a changed, industrial use, and therefore it was allowed under a previously issued permit. The county issued a notice of exemption and Friends of Outlet Creek (Friends) filed a lawsuit challenging the county’s determination. Grist Creek then applied to the Mendocino County Air Quality Management District for an Authority to Construct (ATC), which the district issued in June of 2015 based on the county’s previous actions as the CEQA lead agency.

After its administrative appeal was denied, Friends filed a lawsuit against the district alleging that the district failed to comply with CEQA because it did not conduct a separate environmental analysis, and alleging the district did not follow its own regulations. The district and Grist Creek filed demurrers asserting that Friends could not sue the district directly under CEQA, and instead could only sue under Health and Safety Code section 40864. The trial court sustained the demurrers and Friends appealed.

The Court of Appeal cited to several cases to support its determination that the district could be sued under CEQA, including those that addressed challenges to individual permit decisions. In addition, the court pointed out that no court has ever declared that Health and Safety Code section 40864 is the only statute that can be invoked in challenging an action by an air quality management district. Therefore, the court held, Friends could sue directly under CEQA and was not required to sue under Health and Safety Code section 40864.

The court then turned to the scope of the CEQA challenge. Relying on the fact that the district’s role was limited to issuing the ATC, the court found that Friends could not challenge any of the county’s land use decisions through this litigation. The court further determined that, because a hearing was required, evidence was taken, and the administrative agency had discretion in determining the facts, the lawsuit must be brought as an administrative mandamus proceeding under Code of Civil Procedure section 1094.5. Thus, the challenge was limited to the record from the administrative appeal and matters judicially noticeable.

For information on Grist Creek’s action against the trial court seeking to vacate its demurrer rulings, see: http://www.rmmenvirolaw.com/2017/07/air-district-boards-tie-vote-on-authority-to-construct-permit-is-effectively-a-decision-not-to-revoke-it-which-is-reviewable-for-prejudicial-abuse-of-discretion/.

[Casey Shorrock Smith]

On June 14, 2017, Division One of the First Appellate District published its decision in Grist Creek Aggregates, LLC v. The Superior Court of Mendocino County, ___Cal.App.5th­­­ ___ Case No. A149861 (April 6, 2017) in which the Court of Appeal held that a county air district board’s tie vote on the petitioner’s administrative appeal of an asphalt production facility’s construction permit, effectively resulted in the appeal’s denial, rendering the denial subject to judicial review.

The appellate court’s decision is the latest in a series of environmental and administrative challenges arising from Grist Creek Aggregate’s construction and operation of an asphalt facility in Mendocino County. At issue here, in November 2015, the Mendocino County Air Quality Management District issued an authority to construct permit (ATC) to Grist Creek Aggregates to build a facility to heat and blend rubber. Friends of Outlet Creek, the petitioner in the related suits, appealed the ATC decision to the District’s five-member Hearing Board. After recusal of one of the Board’s members, the remaining four members were locked in a tie vote. Because it was unable to reach a decision, the Board determined not to hold any further hearings on the appeal. Thus, the ATC remained in place.

Friends filed suit, alleging that the Air District and the Hearing Board violated CEQA in not conducting environmental review for the ATC, and violated the District’s own regulations. The Hearing Board demurred on the ground that because the tie vote was tantamount to no action, there was no agency decision for the court to review. Grist Creek Aggregates also demurred, arguing that Friends could not sue directly under CEQA and had failed to exhaust its administrative remedies. The trial court sustained the Board’s demurrer with leave to amend and overruled Grist Creek’s demurrer, both on the basis that the tie vote was not a Board “decision,” and therefore, there was nothing for the court to review. In the interim, the Board added a fifth member. The trial court noted this, but failed to order that the new Board rehear the ATC permit appeal. Grist Creek filed a writ of mandate in the Court of Appeal seeking to require the trial court to vacate all of its demurrer rulings.

The Court of Appeal granted Grist Creek’s petition. The court first noted that the trial court’s decision was internally inconsistent. The Board was under no obligation to hold another hearing on the appeal, and in fact indicated to opposing counsel that they would not do so. Coupled with the trial court’s conclusion that the tie vote meant that Friends did not have a cause of action, it was unclear how the trial court envisioned that Friend’s writ petition could be cured by amendment.

As the purpose and meaning of a tie vote, the Court of Appeal explained there are two criteria for the Board to reach a decision: a quorum of voting members and a majority decision by those voting members. The Board had a quorum (four voting members out of five) but they failed to reach a majority decision. It does not follow from this result that there is nothing for a trial court to review, since the gravamen of Friends’ petition was a challenge to the District’s underlying approval of the ATC and the Board’s failure to revoke it.

In reaching this decision, the court emphasized that the meaning of tie votes in administrative proceedings must be viewed in context. The trial court erroneously oversimplified precedent in its finding that a tie vote of an administrative action agency always results in no action. A deeper analysis of the relevant case law demonstrates that a tie vote can mean that the petitioner is entitled to a different remedy—a return to status quo ante, a new hearing, or setting aside the agency decision—not that the agency has not acted.

Viewing the tie vote in context, the Board’s action here was the equivalent of allowing the ATC to stand, which is effectively a decision not to revoke it. That decision was ripe for judicial review under the prejudicial abuse of discretion standard of Code of Civil Procedure section 1094.5.