Posts Tagged ‘Baseline’


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.

Court’s Analysis
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.

Remedy
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.

 

On October 9, 2015, the Fourth District ordered partial publication of North County Advocates v. City of Carlsbad (Sept. 10, 2015) ___Cal.App.4th___, Case No. D066488), excluding Sections III, IV, and V. The published section of the Opinion provides guidance on the proper use of an historic baseline by lead agencies for certain common types of urban land use projects with potentially fluctuating future impacts.

Westfield proposed to renovate a shopping center in Carlsbad that had originally been built more than 40 years prior. The city approved Westfield’s request to renovate a former Robinsons-May store and other small portions of the shopping center. Petitioners challenged the city’s approval, arguing that the project’s EIR used an improper baseline in its traffic analysis because it treated the Robinsons-May store as fully occupied, even though it had been only periodically occupied for the past six years. The trial court rejected petitioners’ contentions, and the Court of Appeal affirmed.

The Court of Appeal started by discussing the rule stated in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 457, that an agency’s decision to deviate from the normal rule for determining a baseline cannot be disturbed by a reviewing court if substantial evidence supports the agency’s “determination that an existing conditions impacts analysis would provide little or no relevant information or would be misleading as to the project’s true impacts.”

The Court then provided an overview of cases that have dealt with the issue of a historic baseline. In Communities for a Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th 310, 322, the California Supreme Court disapproved of the air district’s selection “as the project’s baseline for nitrogen oxide emissions the amount the boilers would emit if they operated at the maximum level allowed under ConocoPhillips’s existing permits,” because “ConocoPhillips had never operated them at that level” in the past. The Court in Communities for a Better Environment explained that the deviation from the normal rule was impermissible because the district’s selected baseline was hypothetical and based on maximum permitted operating conditions that were not the norm and had never before occurred at the facility. In contrast, the Court of Appeal in Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316, 340, upheld the City of Beaumont’s use of a historic baseline derived from fluctuating historical water use of past agricultural operations on the project site.

Here, the Court upheld the City of Carlsbad’s selection of a traffic baseline that assumed full occupancy of the shopping center as opposed to the “existing conditions” of the shopping center with recent key vacancies. The Court found that the baseline derived from the “fluctuating occupancy” of the shopping center over the past few decades was more like the baseline derived from historical water use in Cherry Valley Pass Acres than the entirely hypothetical baseline in Communities for a Better Environment. Concluding that substantial evidence of actual historical operations of the shopping center space over a 30-year period supported the City’s selection of a historic baseline, the Court distinguished Communities for a Better Environment.

The unpublished portions of Opinion addressed whether substantial evidence supported the City’s selected traffic mitigation measure (Section III), whether the City adequately responded to comments on the Draft EIR (Section IV), and whether the trial court erred by awarding the city all of its requested costs (Section V).

The Third District Court of Appeal held that the California Department of Fish and Wildlife’s program EIR analyzing the Department’s statewide fish hatchery and stocking enterprise passed muster. The Department did not abuse its discretion in the manner it organized the EIR, analyzed the project, and mitigated numerous impacts. The court also found, however, that the Department had violated the Administrative Procedure Act (APA) by adopting three mitigation measures, which imposed new obligations on private aquaculture facilities and required the Department to perform new duties, without complying with APA procedures. Center for Biological Diversity v. Dept. of Fish and Wildlife (Feb. 10, 2015) ___ Cal.App.4th ___, Case No. C072486.

The Department operates 14 trout hatcheries and 10 salmon and steelhead hatcheries throughout the state, stocking fish at close to 1,000 locations each year. After CEQA’s enactment, the hatching and stocking enterprise was found categorically exempt from complying with CEQA. Subsequently, concerns arose regarding the enterprise’s impact on native and wild animals due to predation and genetic hybridization. To address these concerns, the Department developed aquatic biodiversity management plans and hatchery genetic management plans. Center for Biological Diversity sued the Department in 2006, and the trial court agreed with the Center that the enterprise was not categorically exempt from CEQA because it likely caused significant environmental impacts. The court in this prior suit ordered the Department to prepare an EIR and comply with CEQA.

The Department prepared a broad-scope, program EIR/environmental impact statement pursuant to that decision and to additionally comply with NEPA. The EIR analyzed the statewide hatchery and stocking enterprise, as well as three other programs, including the Fishing in the City Program (providing fishing opportunities in urban areas), and the Private Stocking Permit Program (authorizing fish stocking by private aquaculture facilities in private and public lakes and ponds). The Department selected operations from 2004 to 2008 as the baseline and identified more than 200 impacts on biological resources. The EIR proposed a number of mitigation measures to lessen these impacts, and laid out three project alternatives. The EIR did not consider closing the hatcheries or eliminating trout stocking as alternatives.

The Department’s EIR was challenged by the Center and other plaintiffs representing environmental interests in two separate CEQA suits, with plaintiffs representing recreational fishing interests bringing a third suit under the APA. The trial court upheld the EIR and found no violations of the APA. The appellate court affirmed in part and reversed in part.

First, the Third District addressed the EIR’s level of analysis. The CEQA Guidelines do not specify the level of analysis required to be performed in a program EIR. Rather, the Guidelines require an EIR to provide sufficient information in light of what is reasonably feasible. The court found the EIR satisfied that standard. The document reviewed and analyzed the hatchery and stocking enterprise specifically and comprehensively, but within reason, providing for further environmental review where warranted. Given the nature and statewide scope of the project and the consistency of its impacts across the state, the court found the analysis adequate to serve as a program EIR that also operated as project EIR. No additional site-specific environmental review was required given the agency’s determination that site-specific impacts were sufficiently addressed in the program EIR, and there were no new impacts. Indeed, that is the function of a program EIR.

The court also found the EIR did not impermissibly defer formulation of mitigation measures, as it provided sufficient performance standards for future mitigation to meet. The court noted that the rule prohibiting deferred mitigation prohibits loose or open-ended performance criteria. Here, in contrast, the EIR’s performance standards were sufficient to inform the Department what it had to do and accomplish, and committed the Department to mitigating impacts before proceeding with the enterprise. The performance standards were sufficient to ensure the aquatic biodiversity management plans would mitigate impacts in mountain lakes to insignificance. The Department also relied upon federal regulations to develop mitigation measures for impacts on anadromous fish.

The court held that the Department properly used the existing enterprise as the environmental baseline. The court rejected the Center’s contention that the EIR must use the existing environmental conditions—absent the project—as the baseline. It noted that though the origin of present conditions may interest enforcement agencies, such information is irrelevant to CEQA baseline determinations. The CEQA baseline must include existing conditions even when those conditions have never been reviewed and are unlawful. Furthermore, despite using the existing enterprise as the baseline, the EIR described, as much as reasonably possible the impacts hatcheries and stocking have had statewide on the environment from the enterprise’s inception more than a century ago, and proposed mitigation for those continuing impacts. Thus, the EIR did exactly what the Center sought.

Finally, the court held the EIR considered an adequate range of alternatives. For the no project alternative, the EIR considered the baseline project—continuation of the existing enterprise without making any changes. The court upheld this decision, noting that where the EIR is reviewing an existing operation or changes to that operation, the no project alternative is the existing operation; it is a factually based forecast of the environmental impacts of preserving the status quo. The court rejected the Center’s argument that the no project alternative should have been the elimination of the stocking enterprise, stating that the EIR is not the approval of a new program, but review of an ongoing one. The Department was not required to analyze the alternative scenario of discontinuing its hatchery and production enterprise, as it had no legal authority to implement a no-stocking alternative.

Turning to the APA contentions, the court concluded that three mitigation measures imposed by the Department were underground regulations, i.e., regulations adopted without complying with the notice and procedure requirements imposed by the APA. The mitigation measures at issue were: MM BIO-226 (Implement Private Stocking Permit Evaluation Protocol), MM BIO-229 (Require and Monitor Invasive Species Controls at Private Aquaculture Facilities), and MM BIO-233b (Implement Private Stocking Permit Evaluation Protocol). The court found that the measures fell within the definition of a “regulation” and were not exempt from APA requirements. The court rejected the Department’s argument that MM BIO-226 was exempt as a regulation relating “only to the internal management of the state agency,” and that MM BIO-229 and MM BIO-233b were exempt as regulations that embody the “only legally tenable interpretation of a provision of law.” In particular, the court concluded that MM BIO-226 required the Department to “perform a new duty” and MM BIO-229 imposed on a “class of persons a new affirmative duty.” The court’s application of the APA to mitigation measures in a state agency’s EIR appears to be a first and could have far-reaching implications on other EIRs studying statewide activities.

In Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) __Cal.4th__ (Case No. S202828) (slip op., August 5, 2013), a majority of the California Supreme Court held that a lead agency only has the discretion to completely omit analysis of the project impacts on existing conditions if it can justify its decision to exclusively use a future conditions baseline by showing an existing conditions analysis would be misleading or without informational value. On this basis, the majority found a light-rail project’s EIR deficient for exclusively using year-2030 conditions as the baseline and for failing to provide an existing conditions analysis. Although the lead opinion by Justice Werdeger and the concurrence by Justice Baxter provided different rationales for upholding the EIR, the six justices joining in these two opinions did agree to affirm the appellate court’s judgment that upheld the EIR and denied the petition for writ of mandate.

Facts and Procedural Background

In 2007, the Exposition Metro Line Construction Authority (Expo Authority) issued a notice of preparation for an EIR for the Exposition Corridor Transit Project (Expo Phase 2), which would construct a light-rail transit line running from a station in Culver City to a terminus in Santa Monica. The Expo Phase 2 project was designed to provide high-capacity transit service between the Westside area of Los Angeles and Santa Monica, creating an alternative to the area’s congested roadways. The Expo Authority certified a final EIR and approved the Expo Phase 2 project in 2010.

Subsequently, Neighbors for Smart Rail filed a petition for writ of mandate alleging that the approval of Expo Phase 2 violated CEQA. The superior court denied the petition, and the Court of Appeal affirmed. The Neighbors filed a petition for review with the California Supreme Court, raising two issues: (1) the propriety of the EIR’s exclusive use of a future conditions baseline for assessment of likely impacts on traffic congestion and air quality, and (2) the adequacy of mitigation measures for potentially significant spillover parking effects in areas near planned transit stations.

California Supreme Court’s Decision

The Court issued one lead opinion and two concurring and dissenting opinions. Justice Werdeger, joined by Justices Kennard and Corrigan, wrote the Court’s lead opinion. Justice Baxter, joined by Chief Justice Cantil-Sakauye and Justice Chin, wrote a concurrence and dissent that differed from the lead opinion on the baseline issue. Justice Liu wrote a separate concurrence and dissent that differed from the lead opinion on the question of whether the EIR’s failure to use existing conditions as the baseline was prejudicial. All justices agreed that the Neighbors’ contentions regarding mitigation for spillover parking effects should be rejected. Otherwise, the Court split along different lines on both the baseline and prejudice analyses. Nonetheless, there was a majority of four justices on every issue except the prejudice question, and six justices agreed the EIR should be upheld.

Justice Werdeger’s lead opinion tackled the baseline issue first. In an overview of leading CEQA cases that discuss the use of a future conditions baseline, the lead opinion paid special attention to Communities for a Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th 310, and Sunnyvale West Neighborhood Association v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351. Expressing the majority’s view, the lead opinion concluded that unusual aspects of a project or surrounding conditions can justify a departure from the “default” use of an existing conditions baseline that CEQA Guidelines section 15125, subdivision (a), prescribes. In other words, the Court held that while lead agencies have the discretion to “omit an analysis of the project’s significant impacts on existing environmental conditions and substitute a baseline consisting of environmental conditions projected to exist in the future, the agency must justify its decision by showing an existing conditions analysis would be misleading or without informational value.” The Court explicitly disapproved Sunnyvale West Neighborhood Association, supra, 190 Cal.App.4th 1351, and Madera Oversight Coalition v. County of Madera (2011) 199 Cal.App.4th 48, insofar as they hold the exclusive use of a future conditions baseline may never be employed.

Having established the appropriate standard for analyzing the baseline issue, the Court proceeded to conduct a factual assessment of the Expo Authority’s use of projected conditions in the year 2030 as a baseline. After a brief review of the EIR’s discussion of traffic congestion, air pollution, and baseline choice, the Court found that the administrative record did not contain substantial evidence to support the Expo Authority’s decision to omit an analysis of project impacts on existing conditions. This conclusion was joined by Justice Liu and represents the majority view.

Nonetheless, the three justices in the lead opinion proceeded to find that the EIR’s failure to use an existing conditions baseline did not have a prejudicial effect and did not deprive decision makers or the public of substantial information relevant to the project’s potential impacts. In part II.B.5, the lead opinion provides its prejudice analysis and explains how the EIR’s extensive analysis of year 2030 project impacts demonstrated “the lack of grounds to suppose the same analysis performed against existing . . . conditions would have produced any substantially different information.” But Justice Werdeger’s opinion is carefully worded to limit the lead opinion’s conclusion– that the EIR’s failure to analyze the project’s effects on existing traffic and air quality conditions had no prejudicial effect– to “these particular factual circumstances.” As footnote 2 explains, the prejudice analysis in part II.B.5 does not represent the view of the majority. In fact, Justice Liu based his dissent on the prejudice issue, and Justice Baxter’s concurrence brings up Justice Werdegar’s prejudice analysis only to support the assertion that the EIR’s assessment of Expo Phase 2’s impacts did adequately inform decision makers and the public.

The lead opinion closes with a short discussion of the adequacy of mitigation measures for spillover parking effects. The Expo Authority and Metropolitan Transportation Authority (Metro) had adopted a series of measures proposed by the EIR, including: monitoring of on-street parking, Metro’s financial and administrative assistance with appropriate permit parking programs, and Metro’s commitment to work with local jurisdictions to decide on other options (time-restricted, metered, or shared parking arrangements) if necessary. The Court rejected Neighbors’ reliance on Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1260-62, finding that case to be factually distinguishable. While acknowledging that the Expo Authority and Metro “cannot guarantee local governments will cooperate to implement permit parking programs or other parking restrictions,” the Court found that the record supported the conclusion that local municipalities can and should cooperate. This portion of the opinion is the only part that enjoys the support of all seven justices.

Justice Baxter’s concurring and dissenting opinion disagreed with the lead opinion’s baseline analysis. Rejecting the new standard articulated by the majority, Baxter’s opinion proposed a new rule in which “an agency retains discretion to omit an analysis of a project’s likely impacts with an existing conditions baseline, so long as the selected alternative of a projected future conditions baseline is supported by substantial evidence and results in a realistic impacts analysis that allows for informed decisionmaking and public participation.” Using this alternative rule, Baxter’s opinion concluded that the agency “did not abuse its discretion in forgoing an existing conditions baseline in favor of a 2030 baseline” because substantial evidence did support the 2030 baseline as a realistic baseline for analyzing the project’s impacts. According to Baxter’s opinion, the EIR should be upheld because it was not deficient and, therefore, there was no need to address the question of whether the alleged baseline error was prejudicial. Finally, Baxter’s opinion asserts two main criticisms of the majority’s analysis: (1) the majority’s restrictions are not supported by CEQA or CEQA Guidelines, (2) the majority’s analysis creates uncertainties regarding CEQA compliance, increasing project costs and delays.

[RMM Partner Tiffany K. Wright and Associate Amanda R. Berlin represented Real Parties in Interest Los Angeles County Metropolitan Transportation Authority]

Citizens for Open Government v. City of Lodi, (3rd Dist. March 28, 2012 [modified April 25th, 2012]) __Cal.App.4th__ (Case No. C065463, C065719)

Factual and Procedural Background

In 2002, Browman Company applied to the City of Lodi for a use permit to develop a 35-acre shopping center. In 2003, the city issued a NOP for a draft EIR for the proposed project. The city approved the project in 2004. Lodi First and Citizens for Open Government (COG) filed separate lawsuits (Lodi First I and Citizens I) challenging the project.

In December 2005, the trial court granted the petition for writ of mandate in Lodi First I.  The city council rescinded approval of the project and decertified the 2004 EIR. In 2006, the city issued a NOP for the revised EIR. In 2007, COG and the city stipulated to dismiss Citizens I.

In October 2007, the city circulated revisions to the EIR for public review and comment.  The city concluded some of the comments it had received on the revised draft EIR were beyond the scope of the revisions and barred by res judicata. The city declined to provide substantive responses to these comments. In May 2009, the city council conditionally approved the project entitlements and adopted findings of fact and a statement of overriding considerations for the project.

In order to proceed with the project, the city filed a petition to discharge the writ in Lodi First I. As part of this process, the city lodged a supplemental administrative record. Both COG and Lodi First filed separate lawsuits challenging the final revised EIR. After filing their lawsuits, both groups contended the supplemental administrative record excluded documents, including internal agency communications and communications with city consultants.

COG filed a motion to augment the supplemental administrative record. The court granted the motion in part and denied the motion in part based on the attorney-client, attorney-work-product and deliberative process privileges. In 2010, following a hearing on the merits, the trial court granted the City’s request to discharge the 2005 writ in Lodi First I and deny the petitions in Citizens II and Lodi First II. Both Lodi First and COG appealed.

The Appellate Court’s Decision

On appeal, Lodi First and COG argued the trial court erred in applying the deliberative process privilege to exclude some emails from the administrative record. Appellants also challenged the sufficiency of the revised EIR on numerous grounds and disputed the trial court’s ruling precluding them from challenging certain issues based on res judicata.

The Deliberative Process Privilege

Under the deliberative process privilege, senior officials in government enjoy a qualified, limited privilege not to disclose certain materials or communications. These include the mental processes by which a given decision was reached and other discussions, deliberations, etc., by which government policy is processed and formulated. The deliberative process showing must be made by the one claiming the privilege. Not every deliberative process communication is protected by the privilege.  Instead, the privilege is implicated only if the public interest in nondisclosure clearly outweighs the public interest in disclosure.

In the trial court, the city argued the deliberative process privilege applied because the city manager, city attorney, community development director, and other consultants engaged in various deliberative discussions and document exchanges concerning revisions to the EIR. The privilege was required, the city argued, “to foster candid dialogue and a testing and challenging of the approaches to be taken…” On appeal, Lodi First claimed this assertion was insufficient to support nondisclosure through the deliberative process privilege. The appellate court agreed, finding the city offered a correct statement of policy, but that invoking policy was not sufficient to explain the public’s specific interest in nondisclosure of the documents at issue. As a result, the city failed to carry its burden, and the trial court erred in excluding 22 e-mails from the administrative record based on the deliberative process privilege.

While the trial court erred in excluding these documents, this error was not necessarily prejudicial. Under the standard for prejudicial error established by the California Constitution, the appellant bears the burden to show it is reasonably probable he or she would have received a more favorable result at trial had the error not occurred.

Lodi First acknowledged it could not satisfy its burden to prove prejudice on appeal because it had not seen the documents that were erroneously withheld. Lodi First claimed the improper withholding of the documents itself was prejudicial because it was impossible for Lodi First to acquire them. The appellate court disagreed and noted Lodi First should have sought writ review of the trial court’s ruling on the motion to augment the administrative record. In addition, the appellate court, citing Madera Oversight Coalition Inc. v. County of Madera (2011) 199 Cal.App.4th 48, disagreed with Lodi First’s contention that the incomplete record itself was a prejudicial error requiring reversal regardless of the actual contents of the withheld documents.

The Range of Alternatives Considered

Lodi First argued the revised EIR did not comply with CEQA because the range of alternatives to the project did not both satisfy most of the project objectives and reduce significant effects of the project. Relying on both the CEQA Guidelines and long-standing precedent, the court rejected Lodi First’s argument.

First, the court of appeal cited CEQA Guidelines section 15126.6 for the assertion that “there is no ironclad rule governing the nature or scope of the alternatives to be discussed other than the rule of reason.” In addition the court noted that the California Supreme Court has explained how a “rule of reason” must be applied to the assessment of alternatives to proposed projects.

In this case, the revised project considered five alternatives: (1) no project; (2) alternative land uses; (3) reduced density; (4) reduced project size; and (5) alternative project location.  The alternative land use and reduced project density alternatives were not considered for further evaluation because they were infeasible or would not meet the goals of the project. The appellate court found the rejection of these alternatives for further review was reasonable.  The three remaining alternatives were discussed in detail in the revised EIR and provided substantial evidence of a reasonable range of alternatives.

Urban Decay Analysis

The trial court granted the petition for writ of mandate in Lodi First I, in part, because the analysis of cumulative urban decay impacts was inadequate for omitting two related projects in the geographic area. An updated economic impact/urban decay analysis was prepared in response to the trial court’s order to decertify the original EIR.

Lodi First argued the revised EIR inaccurately described the project’s environmental setting by failing to discuss existing blight and decay conditions in east Lodi. The appellate court, by de novo review, determined the blight at issue was not necessarily related to the retail environment at all. Further, the revised EIR analyzed the potential for urban decay with consideration of conditions in east Lodi. The revised EIR’s discussion of cumulative urban decay impacts was adequate under CEQA.

The Economic Baseline

COG argued the city erred in the revised EIR by failing to assess urban decay impacts “under radically changed economic conditions.” COG asserted the city should have reassessed urban decay impacts in light of the economic recession that occurred after the 2006/2007 economic analysis performed for the project. The appellate court determined the city’s decision not to update the baseline was supported by substantial evidence. First, the city offered evidence that updating the baseline presented a “moving target” problem, where updates to the analysis would not be able to keep pace with changing events.  In addition, the city presented evidence that the changing economic conditions did not affect the urban decay findings based on the 2006/2007 economic analysis. Therefore, the city did not abuse its discretion when it declined to update the baseline.

Agricultural Impacts

COG argued the original EIR and revised EIR failed to disclose cumulative impacts to agriculture and that there was no substantial evidence to support the rejection of a heightened mitigation ratio.

The appellate court first determined that the revised EIR satisfied the standards established by the CEQA Guidelines for discussing cumulative impacts. The EIR explained the amount of prime farmland lost due to the project, the amount of land lost due to the project and other proposed projects, and that the cumulative impacts to agricultural resources would be significant and unavoidable. The discussion met the standard for “adequacy, completeness, and a good faith effort at full disclosure.”

After finding the revised EIR’s discussion of cumulative impacts to agricultural resources adequate, the appellate court determined the city did not have to accept a heightened mitigation ratio as asserted by COG. The city required a 1:1 conservation easement ratio for the loss of farmland, but also determined that agricultural easements do not completely mitigate for the loss of farmland. The city adopted a statement of overriding considerations and asserted the 1:1 ratio is appropriate for the project. COG argued the rejection of a 2:1 mitigation ratio was not supported by substantial evidence. The appellate court disagreed and noted that the appropriate standard was whether the finding that there were no feasible mitigation measures to reduce the impacts to prime farmland was supported by substantial evidence.

The Doctrine of Res Judicata

Lodi First attempted to argue the revised EIR failed to disclose cumulative water supply impacts. The trial court held that res judicata barred Lodi Frist from raising this claim. The appellate court agreed.

Res Judicata (claim preclusion) bars relitigation of a cause of action that was previously adjudicated in another proceeding between the same parties or parties in privity with them and that adjudication resulted in a final decision on the merits. In this case, a writ was issued in Lodi First I and was final on the merits.  The trial court granted Lodi First’s petition and held the 2005 EIR was inadequate under CEQA. The city chose not to appeal, and the ruling was final because the time to appeal passed.

Lodi first attempted to argue res judicata did not preclude its water supply challenge because it was based on new information and the city’s 2009 findings regarding the project’s water supply impacts differed from its 2005 findings. For the purposes of res judicata, causes of action are considered the same if based on the same primary right. A claim is based on the same primary right if based on the same conditions and facts in existence when the original action was filed.

The appellate court determined the problem of overdraft cited by Lodi First was not new evidence. The city’s own 1990 general plan identified overdraft in the aquifer. While Lodi First claimed new evidence established more information than the 1990 EIR, the critical fact was that the city’s water supply was inadequate to serve new development.  This was known at the time of the 2004 EIR. In addition, the court determined the findings were consistent in that both findings were that the project would have no significant impact on water supply and therefore, no mitigation was necessary

Finally, the appellate court disagreed with Lodi First that res judicata should not be applied to the water supply issue due to public policy. When the issue is a question of law rather than of fact, res judicata may not apply if injustice would result or if the public interest requires that relitigation be allowed. Lodi First’s water supply issue did not present a question of law, so the public interest exception did not apply.

Conclusion

This case demonstrates the limitations of the deliberative process privilege for public agencies. Agencies attempting to rely on this privilege must be prepared to support their assertion of the privilege with a specific showing that the nondisclosure outweighs the public interest in disclosure; broad policy statements are not enough to support application of the privilege.  In addition, the case offers an important reminder of the consequences of failing to raise all potential arguments in original CEQA proceedings, and indeed, most regular civil proceedings.

RMM partners Andrea Leisy and Howard Wilkins and associate Laura Harris represented real party in in interest Browman Development in this litigation.

Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2nd Dist. April 17, 2012) __Cal.App.4th__ (Case No. B232655)

On April 17, 2012, the Second Appellate District affirmed a lower court’s denial of a petition for writ of mandate challenging the approval of a light rail project and certification of a final EIR under CEQA. The Second Appellate District disagreed with recent cases from other appellate circuits regarding the use of a projected future baseline and found that the use of a future baseline for analyzing certain impacts is appropriate when supported by substantial evidence.

The project at issue, known as the Exposition Corridor Project Phase 2, is intended to extend high-capacity, high-frequency transit service from downtown Los Angeles to Santa Monica. Exposition Metro Line Construction Authority (Expo Authority) prepared an EIR in which it determined that the current population and traffic levels did not provide a reasonable baseline for determining the significance of traffic and air quality impacts of the project. Instead, Expo Authority used projected conditions in 2030 for the baseline.

Petitioners sued, arguing, among other things, that the Expo Authority’s use of a future baseline was improper.  The trial court denied the petition, and Petitioners appealed.

On appeal, Appellants argued Expo Authority’s use of projected future conditions could not provide the baseline for reviewing the significance of environmental impacts under CEQA, as a matter of law. Citing Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310 (CBE), the court noted “Neither CEQA nor the CEQA Guidelines mandates a uniform, inflexible rule for determination of the existing conditions baseline.” Instead, agencies have discretion to decide exactly how to realistically measure existing physical conditions without the proposed project. The court noted CBE rejected use of present-day hypothetical conditions where those conditions were not a realistic description of the existing conditions. Expo Authority’s use of projected future conditions was distinguishable.

The Court of Appeal determined there was nothing “illusory” about population growth and its inevitable impacts on traffic and air quality.  Therefore, measuring the environmental effects of a long-term project by looking at those effects in the long-term was appropriate for this EIR. In fact, the Court of Appeal stated “In a major infrastructure project…assessment of the significance of environmental effects based on [current] conditions…yields no practical information, and does nothing to promote CEQA’s purpose of informed decisionmaking on a project designed to serve a future population.” Therefore, the court found Expo Authority was not prevented, as a matter of law, from using projected baseline conditions for a long-term project when its approach was supported by substantial evidence.

In reaching this holding, the Court of Appeal expressly disagreed with the holdings of both Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 cal.app.4th 1351, and Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48.

This holding is significant because it creates a stark split in authority between the Appellate Districts. Project applicants should be aware of this split in authority before attempting to rely on projected future conditions for an environmental baseline. There will undoubtedly be a push to take the issue to the California Supreme Court for resolution of the split in authority.

Citizens for East Shore Parks v. California State Lands Commission
(2011) – Cal.App.4th – [2011 Cal. App. LEXIS 1645]

The First District Court of Appeal ruled that an EIR prepared by the State Lands Commission for the renewal of an existing marine terminal used a proper environmental baseline in assuming the continued existence and operation of the terminal; thus, the EIR did not need to assume the terminal would discontinue operations, even though that would occur if the Commission did not renew the lease.

In 1998, Chevron applied to the State Lands Commission to renew the lease for an existing wharf serving Chevron’s refinery located in the City of Richmond.  The Commission embarked on the CEQA process.  Initially, the Commission decided to prepare the EIR assuming that the physical wharf would remain in place, but that operations there would cease.  Over time, the Commission’s position evolved, such that the “baseline” would consist not merely of the physical wharf, but also of ongoing operations.  Using this baseline, the Commission determined the lease renewal could result in significant environmental impacts associated with the risk of oil spills.  In 2007, the Commission released the Final EIR.  In 2009, the Commission certified the EIR, approved the lease renewal, and adopted a statement of overriding considerations.  The “Citizens” sued.  The trial court denied the petition.  The Citizens appealed.

First, the Citizens argued the Commission’s EIR used the wrong baseline, claiming the baseline should have excluded use of the marine terminal.  In this case, the baseline consisted of “existing conditions” at the time the Commission prepared the EIR.  Those conditions included an operating marine terminal.  The Citizens argued, however, that a different rule applied in the context of a permit renewal, since the agency could cause operations to cease simply by declining to renew the lease.  Moreover, because the construction and operation of the terminal predated CEQA, they had never undergone environmental review.  The Court rejected this argument, reasoning that, under the California Supreme Court’s decision in Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, the Commission properly focused on existing conditions, not conditions that may have existed decades in the past.  The record showed the Commission’s approach was consistent with permit renewals elsewhere in the Bay Area, and accurately reflected actual operations at the terminal.  Nor was the Commission bound by its initial determination regarding the proper baseline:  “Administrative agencies not only can, but should, make appropriate adjustments, including to the baseline, as the environmental review process unfolds.”

Second, the Citizens argued the EIR should have analyzed an alternative consisting of removing the causeway connecting the terminal to the refinery, and instead burying pipelines.  According to the Citizens, such an alternative would have avoided the project’s impacts on recreation by removing an obstruction to a bay trail.  The Court disagreed, noting that because the causeway was part of the baseline, the EIR properly concluded the lease renewal would not have significant impacts on recreation.  Similarly, the Final EIR’s responses to comments on recreational impacts were adequate, since the lease renewal did not involve new construction that would impact recreation.

Third, the Citizens argued the EIR’s project description should have encompassed the entire refinery, rather than just continued use of the marine terminal.  The evidence showed, however, that the lease renewal was the only action before the Commission, and the Commission had not “chopped up” the project as a means of evading CEQA review.

Fourth, the Citizens argued the EIR’s analysis of cumulative water discharge impacts was flawed.  The Court disagreed, noting that water discharges were part of the existing wharf operation, and therefore part of the baseline.  For the same reason, the EIR did not need to analyze whether the lease renewal was consistent with State legislation calling for establishing a “water trail” around San Francisco Bay.  Moreover, the EIR noted plans to establish a land-trail around the Bay, passing through upland areas adjacent to the terminal.  The Commission urged discussions to establish a route through the refinery for this trail, and Chevron designated a site and committed $2 million to this effort.  Given that the Commission had no jurisdiction over upland areas, the Commission’s efforts sufficed.  The record also showed the Commission consulted with trustee agencies by sending the agencies copies of the Draft EIR.

Finally, the Citizens argued that, under the Public Trust Doctrine, the Commission was required, to undertake an additional review process and impose additional mitigation conditions.  The Court disagreed, holding that, where the Commission’s decision “continued a permissible and long-standing trust use” and the Commission performed an adequate analysis under CEQA, “there was no violation of the public trust doctrine.”

Pfeiffer v. City of Sunnyvale
(2011) 200 Cal.App.4th 1552

The Sixth District Court of Appeal upheld an EIR for the expansion of a medical campus in the City of Sunnyvale. The petitioners, neighbors of the project, alleged that: (1) the project is inconsistent with the general plan; (2) the EIR’s discussion of general plan conformity is inadequate; (3) the EIR used a legally incorrect baseline to determine traffic impacts; and (4) the analysis of traffic noise is inadequate.

Regarding general plan consistency, the project opponents argued that that project is inconsistent with the general plan because a portion of the project slated for storage and waste management are located in an area that the general plan designates as low-density residential, which, the opponents argued, expressly excludes any use other than single-family, detached homes. The court rejected the opponents’ claims, pointing to the existing zoning and other uses in the vicinity of the project.

The project opponents also argued that, pursuant to CEQA Guidelines section 15125, subdivision (d), the EIR “had a duty to fully present the issue of general plan consistency of that portion of the project being built on land designated in the City’s general plan as exclusively residential with single family detached homes.” The court rejected this argument stating that CEQA requires only a discussion of general plan inconsistency. Similarly, the court rejected the opponents’ claims that the City did not adequately respond to comments on the issue of consistency because “[t]he response contains a similar level of detail as the comment and demonstrates a good faith analysis as to how the matter was addressed and analyzed.”

The project opponents argued that the EIR’s baseline for traffic was improper because it used hypothetical “background conditions” rather than the actual existing conditions. The “background conditions” were “existing peak-hour volumes multiplied by a growth factor plus traffic from approved but not yet constructed developments in the area. The traffic growth factor was developed based on the City of Sunnyvale’s travel demand forecasting model.” The court first confirmed that establishing the proper baseline is a fact-based analysis and is subjected to the substantial evidence standard of review. Here, the opponents had failed to show that the City’s determination was not supported by substantial evidence.

The court distinguished the case of Sunnyvale West Neighborhood Assn. v. City of Sunnyvale (2010) 190 Cal.App.4th 1351. The court quoted Sunnyvale West “[a]lthough ‘[n]either CEQA nor the CEQA Guidelines mandates a uniform, inflexible rule for determination of the existing conditions baseline’ [citation] nothing in the law authorizes environmental impacts to be evaluated only against predicted conditions more than a decade after EIR certification and project approval.” The court then explained “Sunnyvale West is therefore distinguishable from the present case, where the traffic baselines included in the EIR were not limited to projected traffic condition in the year 2020, but also included existing conditions and the traffic growth anticipated from approved but not yet constructed developments.”

Regarding noise, the court rejected the opponents’ claim that the traffic noise was inadequate because it relied on hypothetical levels of traffic. The record showed the analysis used existing noise levels, and the court found the opponents had failed to meet their burden. The court also rejected the opponents’ claim that the EIR did not properly identify mitigation for significant construction noise impacts. Although the EIR was less than clear on the point, the court pointed to significance conclusions and mitigation measures identified in the EIR. The court held this was adequate.