Fifth District Rules CARB Acted in Bad Faith in Selecting Baseline for Analysis of Low Carbon Fuel Standards Regulations
April 25th, 2017 by Elizabeth Pollock
In POET, LLC v. State Air Resources Board (2017) ___Cal.App.5th___ (Case No. F073340) (“POET II”), the Fifth District Court of Appeal held that the California Air Resources Board (CARB) failed to comply with the terms of the writ of mandate issued by the same court in POET, LLC v. State Air Resources Board (2013) 218 Cal.App.4th 681 (“POET I”). The court invalidated the trial court’s discharge of the writ, modified the existing writ, and ordered CARB to correct its defective CEQA Environmental Analysis (EA).
Legal and Factual Background
CARB promulgated low carbon fuel standards (LCFS) in 2009 as required by the 2006 California Global Warming Solutions Act (“AB 32”). In promulgating the LCFS, CARB adopted an EA, the regulatory equivalent to an Environmental Impact Report, pursuant to CEQA. Those original regulations and the associated EA were the subject of litigation in POET I, where the Fifth District found that the EA violated CEQA by impermissibly deferring analysis of nitrous oxide (NOx) emissions from biodiesel fuel. The appellate court took the acknowledged “unusual” step of allowing the regulations to remain in effect, pending satisfaction of a writ of mandate (“2014 writ”).
In 2015, in response to the court’s ruling in POET I, CARB produced an updated EA, updated LCFS regulations (2015 regulations), and alternative diesel fuel regulations (ADF regulations). The EA analyzed the project using a 2014 baseline and determined that the regulations would not have significant impacts related to NOx emissions. On the return to the writ, the trial court sided with CARB and discharged the 2014 writ. This appeal followed.
The Court of Appeal applied the abuse of discretion standard to its analysis of whether the lower court’s discharge of the 2014 writ was proper. The court concluded that CARB continued to violate CEQA and the 2014 writ by selecting a 2014 project baseline. The court explained that a normal existing-conditions baseline begins when the project commences and must include all related project activities. In addition, a regulatory scheme is a “project” under CEQA and includes all enactment, implementation, and enforcement activities. Here, the original regulations, 2015 regulations, and ADF regulations were related activities because they concerned the same subject matter, had a shared objective, covered the same geographic area, and were temporally connected.
Thus, by selecting 2014 as the baseline, the court found that the EA failed to consider how the original regulations, which remained in effect during and after POET I, encouraged and increased the use of biodiesel fuel and its effect on NOx emissions. According to the court, selecting such a limited baseline was not even “objectively reasonable” from the point of view of an attorney familiar with CEQA and the Guidelines. In addition, the court found that the flawed CEQA analysis was prejudicial because it deprived the public of a meaningful opportunity to review the effect of the agency’s actions on the environment.
On remand, the court ordered that CARB review its project baseline. While declining to require a specific baseline date, CARB was instructed to select a “normal” baseline consistent with the court’s analysis and in any event, to not select a baseline date of 2010 or after. The court implied that the baseline could even have begun in calendar year 2006, consistent with then-Governor Schwarzenegger’s 2007 mandate to the agency to review fuel emissions.
The parties agreed that the ADF regulations were both severable and independently enforceable from the 2015 regulations. The court found that the 2015 regulations were also severable from the remainder of the LCFS regulations because, though more effective in their entirety, the remaining regulations would be complete and retain utility. Ultimately though, like in POET I, the court concluded that, on balance, suspending the regulations would cause more environmental harm than allowing them to remain.
Thus, the court reversed the order discharging the writ and ordered the superior court to modify the writ to compel CARB to amend its analysis of NOx emissions and freeze the existing regulations as they relate to diesel and its substitutes. In addition, the court ordered the superior court to retain jurisdiction, and to require CARB to “proceed diligently, reasonably and in subjective good faith.” Finally, the court ordered that if CARB fails to proceed in this manner, the superior court shall immediately vacate the portion of the writ preserving the existing regulations, and may impose additional sanctions.
April 11th, 2017 by Elizabeth Pollock
In a 2-1 opinion, the Third District Court of Appeal upheld the auction-sale component of the cap-and-trade program created by the State Air Resources Board pursuant to the California Global Warming Solutions Act of 2006 (“AB 32”). (California Chamber of Commerce et al. v. State Air Resources Board et al. (2017) ___Cal.App.5th___ (Case No. C075930).)
As part of its regulations to implement AB 32, the State Air Resources Board created the California Cap on Greenhouse Gas Emissions and Market-Based Compliance Mechanisms, referred to as the ‘cap-and-trade program.’ The program imposes a cap on aggregate greenhouse gas emissions. Covered entities must either reduce their emissions below a threshold point or obtain offset credits or emissions allowances at the Board’s quarterly auctions or in a secondary market. Allowances are tradable, so participants can buy, bank, or sell them. Proceeds from the Board’s auction sales are kept in a fund to further AB 32’s purposes. Plaintiffs California Chamber of Commerce and Morning Star Packing Company filed two separate lawsuits challenging the regulations and the court consolidated the cases. The trial court ruled in favor of the Air Resources Board and both plaintiffs appealed.
The Court of Appeal considered two arguments: (1) whether the auction sales exceed the Legislature’s delegation of authority to the Board, and (2) whether the revenue generated by the auction sales amounts to a tax that violates the two-thirds vote requirement of Proposition 13. With respect to Plaintiffs’ first argument, the court considered whether the auction program is “(1) consistent and not in conflict with the statute and (2) reasonably necessary to effectuate the purpose of the statute.” The court held that by allowing the Board to design regulations that include “distribution of emissions allowances,” the Legislature gave broad discretion to determine how to implement the statute, and the auctioning of allowances does not exceed the scope of the delegation. In addition, the court found that the Legislature later ratified the auction system when it directed how to use the proceeds therefrom.
With respect to Plaintiffs’ second argument, the court found that the auction sales do not equate to a tax. Proposition 13 requires that any change in a State tax must be passed by a two-thirds vote of each house of the Legislature. Sinclair Paint Co. v. State Bd. of Equalization (1997) 15 Cal.4th 866 is the leading authority on application of Prop 13, but contrary to the ruling of the lower court, the Court of Appeal found the test from that case was inapplicable here. According to the court, Sinclair Paint did not hold that it applies to any “revenue generating measure.” Instead, Sinclair Paint sets forth rules to evaluate purported regulatory fees to determine whether they are taxes subject to Proposition 13. The Board’s cap-and-trade regulations do not purport to impose a regulatory fee, but instead call for the auction of allowances, which the court explained is an entirely different system. Thus, the Court of Appeal found, Sinclair Paint did not apply.
Because Sinclair Paint did not apply, the court looked to the general test for whether something is a “tax” subject to Proposition 13. The court explained that the hallmarks of a tax are: (1) it is compulsory, and (2) the payor receives nothing of particular value for payment. The court found that, regardless of the fact that the cap-and-trade program may increase the cost of doing business in California, the purchase of allowances through the Board’s auction is voluntary; businesses must simply make the judgment whether it is more beneficial to the company to make the purchase required by the program than to reduce emissions. In addition, the court emphasized that no entity has a vested right to pollute. Once purchased, the allowances are valuable, tradable commodities, conferring on the holder the privilege to pollute the air. Thus, the court found that participation in the auction system is voluntary and the purchaser receives a specific thing of value, so the auction system does not impose a tax.
Justice Hull concurred with the majority’s analysis of the first question, but disagreed with the second part of the opinion. In a lengthy dissent, Justice Hull argued that the cap-and-trade program is a tax because: (1) the purchase of auction credits by certain businesses is not voluntary, (2) the auction credits do not confer property rights, and (3) the use of the auction proceeds must be considered for determining whether a State exaction is a tax. Thus, Justice Hull concluded that the program is a “tax” of sorts, and because it was not passed by a 2/3 vote of the State Legislature, it violates Proposition 13.
Sixth District Rules County of Santa Cruz Did Not Engage in Piecemeal Review of Zoning Ordinances and Upholds Negative Declaration
April 10th, 2017 by Elizabeth Pollock
In Aptos Council v. County of Santa Cruz (2017) ___Cal.App.5th___ (Case No. H042976), the Sixth District held that the County of Santa Cruz did not engage in piecemeal review when it separately adopted three different zoning ordinances. The court also upheld the negative declaration for an ordinance increasing the height and density of hotels.
The County planning department undertook an effort to overhaul various County code sections, including those dealing with zoning. As part of this effort, the following occurred: (1) in March 2013, the County considered an addendum to a negative declaration prior to adopting an ordinance that authorized administrative approval of minor exceptions to zoning site standards; (2) in September 2013, the planning department circulated a negative declaration finding that an ordinance increasing the height and density for hotels (the “Hotel Ordinance”) would not have a significant effect on the environment; and (3) in October 2013, the planning department prepared a notice of exemption for an amendment modifying the County’s sign ordinance (the “Sign Ordinance”). The Board adopted the Hotel Ordinance and the Sign Ordinance in 2014.
Petitioner argued that the three ordinances in question constituted a single project and the County’s actions amounted to piecemealing in violation of CEQA. The court disagreed. The court found that reforming certain zoning regulations—such as altering density requirements for hotels—was not a reasonably foreseeable consequence of the other regulatory reforms challenged. Because each ordinance operated independently and could be implemented separately, they were not considered a single project. While the ordinances all served the same stated objective of “modernizing the County code,” the court held that this was not the type of tangible objective that forms the basis of a single CEQA project.
The court also upheld the negative declaration for the Hotel Ordinance, finding that the County did not need to consider potential future development because it was too speculative to be reasonably foreseeable. Evidence in the record supported the argument that the County intended to stimulate development when it passed the ordinance, but the court found that still did not demonstrate that such development was reasonably foreseeable. Additionally, the initial study disclosed that the Hotel Ordinance would allow higher density and taller hotels but that the effects of future development were speculative until a specific development was proposed. And, the initial study explained that such development projects would be subject to their own CEQA review. Moreover, the court found that petitioner failed to meet its burden to show a fair argument that significant environmental effects may result from the ordinance.
Fourth District Court of Appeal Upholds Trial Court’s Ruling that Enactment of Medical Marijuana Ordinance was Not a ‘Project’ Under CEQA
November 17th, 2016 by Elizabeth Pollock
In Union of Medical Marijuana Patients, Inc. v. City of San Diego (October 2016) ____Cal.App.5th ___ (Case No. D068185) [http://www.courts.ca.gov/opinions/documents/D068185.PDF], the Fourth District Court of Appeal affirmed the trial court’s denial of a challenge to the City of San Diego’s enactment of a medical marijuana ordinance. The court found the ordinance was not a ‘project’ under CEQA.
Union of Medical Marijuana Patients, Inc., in another challenge to a City’s medical marijuana ordinance, filed a petition for writ of mandate against the City of San Diego’s adoption of an ordinance allowing medical marijuana facilities. The ordinance amends the city’s municipal code to regulate the establishment and location of medical marijuana consumer cooperatives. The city did not conduct CEQA review prior to adopting the ordinance.
UMMP argued that the ordinance was a ‘project’ subject to CEQA, and therefore the city was required to comply with CEQA before adopting the ordinance. The court analyzed whether, as a matter of law, enactment of the ordinance was an activity “undertaken by a public agency” that “may cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment.” Because an ordinance passed by a city is clearly “undertaken by a public agency,” and UMMP did not argue that the ordinance would have a direct impact on the environment, the analysis focused on whether the ordinance would cause a reasonably foreseeable indirect physical change.
First, UMMP argued that a zoning ordinance necessarily constitutes a project as a matter of law, relying on language in Public Resources Code section 21080, subdivision (a). The court rejected this argument, reasoning that although that section lists “the enactment and amendment of zoning ordinances,” the examples provided therein illustrate activities undertaken by a public agency. Such activities may or may not qualify as “discretionary projects,” and therefore are not necessarily subject to CEQA.
Next, UMMP argued that the ordinance would result in a reasonably foreseeable indirect physical change in the environment in three ways—by increasing traffic and air pollution, causing increased cultivation of marijuana, and resulting in new construction activity. The court rejected each of these assertions, explaining that the arguments relied on false assumptions that were unsupported by the record. The court found that the ordinance was intended to increase access to medical marijuana and there was no evidence that it would be more burdensome for patients to travel to cooperatives after enactment of the ordinance, and it was purely speculative to assume any new buildings would be constructed as a result of the ordinance. And if new buildings were constructed, the court said, approval of a new conditional use permit would require appropriate CEQA review for that construction project anyway.
Thus, the court concluded that enactment of the ordinance did not constitute a ‘project’ under CEQA.
Fifth District Court of Appeal Disagrees, in Part, with “Hayward Area Planning” Decision and Awards Costs for Record Preparation to Real Party in Interest
September 23rd, 2016 by Elizabeth Pollock
The Fifth District Court of Appeal, in a partially-published opinion, ruled on a cost award in Citizens for Ceres v. City of Ceres (2016) ___Cal.App.4th___ (Case No. F071600). The court disagreed in part with the decision in Hayward Area Planning Association v. City of Hayward (2005) 128 Cal.App.4th 176 (“Hayward Area Planning”), and granted real party in interest’s request for the cost of preparation of the administrative record.
Citizens for Ceres (“Citizens”) filed a petition for writ of mandate under CEQA challenging the City of Ceres’ approval of a Wal-Mart shopping center. At Citizens’ request, the city prepared the administrative record, through its outside counsel. Pursuant to agreement with the city, real party in interest Wal-Mart subsequently reimbursed the city $48,889.71 for the costs of preparing the record.
After the city and real party in interest won on the merits at the trial court, Wal-Mart filed a memorandum of costs requesting payment for the cost of preparation of the administrative record. In response, Citizens filed a motion to tax costs, arguing that the city could have recovered the cost of preparation of the record, but Wal-Mart could not. The trial court granted Citizens’ motion, based on the holding in Hayward Area Planning, and denied Wal-Mart’s request for costs.
The Fifth District Court of Appeal disagreed with the trial court and found that Public Resources Code section 21167.6, subdivisions (b)(1) and (b)(2), do not bar a real party in interest from recovering the cost of record preparation where the petitioner requested that the lead agency prepare the record, and the real party reimbursed the agency. Section 21167.6 provides three express options for preparation of the administrative record in a CEQA action: (i) the agency can prepare the record; (ii) the plaintiff can prepare the record subject to the agency’s certification; or (iii) the agency and the plaintiff can agree on a different procedure. The First District Court of Appeal in Hayward Area Planning held that prevailing parties are entitled to seek an award of the cost of preparing an administrative record only when the record was prepared in one of the three approved ways. The Hayward Area Planning court held that a real party in interest could not recover costs when the petitioner directed the agency to prepare the record and the agency delegated that task to the real party interest.
The Fifth District Court of Appeal explained that Section 21167.6(b)(1) requires the parties to “pay any reasonable costs or fees imposed for the preparation of the record of proceedings in conformance with any law or rule of court.” Wal-Mart applied to recover costs under Code of Civil Procedure sections 1032 and 1033.5, and the court found that there is nothing in section 21167.6 limiting such recovery so long as the record was prepared in one of the three specified ways. Here, the record was prepared in one of those ways—it was prepared by the agency—and contrary to the holding in Hayward Area Planning, the right to recover is not limited any further.
The Court of Appeal reversed the trial court’s order granting Citizens’ motion to tax costs and remanded for the lower court to determine whether the requested administrative record costs were reasonable.
First District Court of Appeal Applies Substantial Evidence Standard of Review to Subsequent MND and Upholds County’s Decision to Permit Expansion of Buddhist Retreat Center
September 15th, 2016 by Elizabeth Pollock
In Coastal Hills Rural Preservation v. County of Sonoma (August 31, 2016) ___Cal.App.4th___, Case No. A145573, the First District Court of Appeal upheld the trial court’s determination that the County of Sonoma did not violate CEQA or the Planning and Zoning law when it adopted a subsequent mitigated negative declaration (MND) and approved a master use permit to expand the existing Ratna Ling Buddhist retreat center and printing facility.
The Tibetan Nyingma Meditation Center (TNMC) has operated a monastery and retreat center in Cazadero since 1975. In 2004, TNMC purchased an additional property, which it designated the Ratna Ling Retreat Center. Since 2004 Ratna Ling has undergone numerous changes and expansions, including growing from a one-printing-press facility to operating six printing presses. In response to applications from Ratna Ling, the county adopted and approved a series of mitigated negative declarations in 2004, 2008 and 2012. In 2014, Ratna Ling applied for a third multiple-use permit, and the county adopted a subsequent MND to the 2004 and 2008 MNDs, superseding the 2012 MND. The 2014 subsequent MND analyzed Ratna Ling’s application to make permanent four storage tents for its printing-press operation, and construct a new six-bedroom residence and up to eight tent cabins.
Coastal Hills Rural Preservation (CHRP) filed suit, arguing that the county should have prepared an EIR because the project greatly expands the printing-press operation. CHRP also argued that the approval violated the county’s general plan and zoning provisions. The trial court denied the petition, and the First District Court of Appeal affirmed.
CHRP argued that the project was inconsistent with the county’s general plan and zoning provisions in violation of Government Code section 65300. The site is designated for “resources and rural development” under the county’s general plan, which is intended to “protect lands used for timber, geothermal and mineral resource production and for natural resource conservation.” Contrary to CHRP’s argument that the printing press included “extraordinary levels of manufacturing productions …, massive storage structures and commercial Internet sales,” the court found that substantial evidence supported the county’s determination that the proposed uses were consistent with the land use regulations. The court explained that an agency’s determination regarding consistency with its own general plan is given great deference because “the body adopting a general plan has unique competence to interpret those policies when applying them to a proposed project.” There was no evidence in the record that the printing activities were undertaken for profit, the printing press use had been permitted since 2004, and the Board fully considered the county’s land use policies and the extent to which the project conforms to those policies.
The Court of Appeal also affirmed the trial court’s determination that the Board did not violate CEQA. Because the court was considering the county’s decision to prepare a subsequent MND where an MND had already been prepared under Public Resources Code section 21166, the court applied the substantial evidence test rather than the fair-argument standard of review. The court noted that the issue of the standard of review is currently before the California Supreme Court in Friends of the College of San Mateo Gardens v. San Mateo Community College Dist. (Sept. 26, 2013, A135892 [nonpub. opn.]), review granted Nov. 5, 2013, S214061).
The court found that substantial evidence supported the Board’s conclusion that any fire risks posed by the storage tents were adequately mitigated: the membranes covering the tents met applicable fire protection standards, there was 200 to 300 feet of defensible space around each tent, and a condition of approval required Ratna Ling to provide and maintain its own onsite fire engine. In addition, the court held that, regardless of whether the county should have included the tents in the baseline for its analysis, substantial evidence in the record indicated that the Board fully considered the potential impacts of the tents.
The court also ruled against arguments put forth by amicus curiae Friends of the Gualala River and Forest Unlimited. Contrary to those arguments, the county’s Hazard Mitigation Plan was not effective until October 25, 2011, well after the storage tents were permitted and constructed, and therefore was inapplicable. In addition, the county did not improperly defer mitigation when it required Ratna Ling to coordinate with the fire district and comply with all fire-related conditions, because the mitigaton simply granted the county the right to impose new, stricter requirements if deemed necessary.
Finally, CHRP argued that the county engaged in impermissible spot zoning. The court explained that because the record and the relevant zoning regulations did not suggest that the authorized use for Ratna Ling is prohibited as to all other parcels in the same zone, this was not impermissible spot zoning in violation of Government Code section 65852.