Tag: Greenhouse Gas Emissions

THIRD DISTRICT PARTIALLY AFFIRMS JUDGMENTS SETTING ASIDE EIR FOR SPECIFIC PLAN LAND SWAP IN EASTERN PLACER COUNTY

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In a 123-page decision, League to Save Lake Tahoe Mountain Area Preservation Foundation v. County of Placer (2022) 75 Cal.App.5th 63, the Third District partially affirmed the trial court’s judgment in two cases granting a petition for writ of mandate, finding that the EIR for the Martis Valley West Parcel Specific Plan (Project) failed to adequately describe the environmental setting of Lake Tahoe regarding water quality, failed to adequately analyze impacts to Lake Tahoe water quality resulting from automobile trips, impermissibly deferred the formulation of mitigation for GHG impacts, failed to analyze proposed mitigation for the Project’s significant and unavoidable traffic impacts on SR 267, and failed to analyze whether renewable energy features could be incorporated into the Project. The Court of Appeal upheld the EIR’s analysis of impacts to forest resources and air quality, including the County’s reliance on the Placer County Air Pollution Control District’s (PCAPCD) thresholds of significance. The court also upheld the County’s decision not to recirculate the Draft EIR and to immediately rezone the subject property out of Timberland Productivity Zone (TPZ). Lastly, the Court of Appeal reversed the trial court’s decision that the EIR did not adequately analyze emergency evacuation impacts.

Background

Real Party in Interest, Sierra Pacific Industries (SPI), owns two undeveloped parcels on either side of SR 267, between Truckee and Lake Tahoe. The West Parcel is southeast of the Northstar Resort and has 1,052 acres. The East Parcel has 6,376 acres.  The existing zoning and land use designation in the Martis Valley Community Plan (MVCP) allows up to 1,360 residential units and 6.6 acres of commercial uses in a 670-acre area of the larger east parcel. Otherwise, both parcels are zoned TPZ and designated as forest in the MVCP. Starting in 2013, SPI and its partners (collectively, Real Parties in Interest or RPI) proposed that the County adopt a specific plan for the two parcels that would amend the MVCP and zoning to move the residential and commercial uses from the East Parcel to the West Parcel, reduce the residential capacity from 1,360 units to 760 units, immediately rezone 662 acres on the West Parcel out of TPZ, and rezone the entire East Parcel as TPZ. Following adoption of the specific plan, the applicants would sell the East Parcel for conservation purposes or place the land in a conservation easement. The effect of the land swap would be to allow development on the West Parcel, adjacent to Northstar and existing residential development, while permanently conserving all 6,376 acres of the East Parcel, connecting some 50,000 acres of open space east of SR 267. Two small areas of both parcels are within the Lake Tahoe Basin, and thus subject to the jurisdiction of the Tahoe Regional Planning Agency (TRPA), but neither area would be included in the specific plan.

The County circulated a draft EIR for the Project in 2015. In 2016, the County certified the final EIR, immediately rezoned the 662-acre project area of the West Parcel out of TPZ, rezoned the East Parcel to TPZ, and adopted the specific plan.

Sierra Watch, Mountain Area Preservation, and the League to Save Lake Tahoe (collectively, Sierra Watch) filed a lawsuit challenging the EIR and the County’s finding that immediately rezoning the project area on the West Parcel was consistent with the purposes of the Timberland Productivity Act (TPA). The California Clean Energy Committee (CCEC) filed a separate petition, also challenging the EIR. The trial court issued judgments in April and June 2018, rejecting all the challenges to the EIR, with the exception of the EIR’s analysis of impacts to emergency evacuations, and upholding the County’s findings on the immediate rezone out of TPZ. Sierra Watch and CCEC filed separate appeals, and the County and RPI cross-appealed on the emergency evacuation issue.

Court of Appeal’s Decision

On appeal, Sierra Watch argued that the EIR failed to adequately describe the Lake Tahoe Basin’s existing air and water quality, that the County should have adopted the TRPA’s threshold of significance for vehicle miles traveled (VMT) with respect to basin air and water quality, and that the EIR failed to adequately analyze the impacts of project traffic on air and water quality in the basin. Sierra Watch also challenged the County’s decision not to recirculate the EIR following changes to the analysis of GHG impacts, and argued that the adopted GHG mitigation measure was invalid. Lastly, Sierra Watch argued that the County violated the TPA by failing to make required findings. In their cross-appeal, the County and RPI argued that the EIR’s analysis of impacts to emergency evacuations was adequate, and that substantial evidence supported the EIR’s conclusion that the impacts would be less than significant.

CCEC’s appeal argued that the EIR did not adequately describe existing forest resources or analyze cumulative impacts to forest resources, failed to analyze feasible traffic mitigation measures proposed in comments, failed to disclose significant impacts from widening SR 267, and failed to discuss the use of renewable energy sources to meet Project energy demand. CCEC also argued that the adopted GHG mitigation measure was infeasible and unenforceable.

Lake Tahoe

The Court of Appeal found the County was not legally required to use TRPA’s thresholds of significance for measuring the Project’s impacts because, although the two parcels did include land within TRPA’s jurisdiction, the Project was revised to not include those areas. Instead, the County, as the lead agency, had discretion to rely on TRPA’s thresholds or those of another agency, or use their own thresholds, including thresholds unique to the Project. The court also concluded that, while TRPA had “jurisdiction by law” over resources that could be affected by the Project, and was thus, a “Trustee agency” under CEQA, they were not a “Responsible agency” because they had no permitting authority over the Project.
The court also found that the County did not abuse its discretion in adopting the PCAPCD’s thresholds of significance for the project’s air emissions impacts because, contrary to Sierra Watch’s claims, the PCAPCD’s significance thresholds were adopted to address air and water quality (resulting from air emissions) within the Tahoe Basin. However, the EIR failed to adequately describe the existing water quality of Lake Tahoe, which could be impacted by “crushed abrasives and sediment” from project traffic within the basin. According top the court, the EIR did not include a threshold of significance (though several were discussed in post-EIR responses to comments) for such impacts, even though there was substantial evidence that the project-generated traffic would travel within the basin, which the court found to be an abuse of discretion.

Recirculation

Sierra Watch argued that the revisions to the draft EIR’s GHG analysis included in the Final EIR triggered the need to recirculate. The draft EIR included a tiered analysis of GHG impacts. First, annual Project GHG emissions were calculated and compared to PCAPCD’s numeric threshold of 1,100 MTC2E for residential development. Second, although the draft EIR acknowledged that little, if any, of the Project would be constructed by 2020, the EIR compared a completed Project in 2020 with the GHG reduction measures, including those required by law, in place with a “no action” or “business as usual” scenario to determine the Project’s GHG efficiency, pursuant to the California Air Resources Board’s revised Scoping Plan. The draft EIR concluded that, because the Project would generate GHG emissions substantially greater than the numeric threshold, and because it was uncertain what regulatory GHG measures would be in place after 2020, when the Project was likely to begin operating, the impact was significant and unavoidable.

Before the final EIR was published, however, the California Supreme Court issued its decision in Center for Biological Diversity v. California Department of Fish and Wildlife (2015) 62 Cal.4th 204 (Newhall Ranch). Newhall Ranch ruled that an efficiency metric comparing a proposed project to a hypothetical “business as usual” scenario was a permissible way to analyze GHG impacts, but the Scoping Plan’s statewide efficiency threshold required additional evidence and analysis to apply to individual projects, and the EIR in that case did not include the required connection. In response to Newhall Ranch, the final EIR dropped the efficiency analysis, but affirmed the draft EIR’s conclusion that impacts would be significant and unavoidable because the Project would generate emissions exceeding the numeric threshold, and because of the uncertainty around future regulatory GHG reduction measures. The County concluded that, because the significance conclusion did not change, recirculation was not required. The Court agreed recirculation was not required because the final EIR did not show new or substantially more significant effects, and merely clarified or amplified the information provided in the draft EIR.

GHG Mitigation

The court agreed with the appellants that the GHG mitigation measure impermissibly deferred determining the significance of GHG impacts, because the measure required future tentative maps to establish consistency with future efficiency targets adopted in compliance with the Newhall Ranch decision, even though the EIR acknowledged that no such targets existed and may not ever exist. The measure provided a suite of proposed mitigation tools that future maps could use to meet the efficiency targets. The court reasoned that, if no efficiency target consistent with Newhall Ranch became available, mitigation would never be triggered. RPI and the County argued that, if no efficiency targets were available, the 1,100 MTC2E threshold would apply to future maps, but the court found that the language of the measure itself did not include the numeric threshold.

Emergency Evacuations

The court agreed with the County and RPI that the EIR’s analysis of impacts to emergency evacuation plans was adequate and the EIR’s conclusion that impacts would be less than significant was supported by substantial evidence. The court upheld the EIR’s reliance on the questions in Appendix G to the CEQA Guidelines to set a threshold of significance. The EIR acknowledged that adding people and development to the area could exacerbate cumulative impacts to evacuation but concluded that the impact was less than significant because the project would not cut off or modify any evacuation routes and would not prevent an evacuation from occurring or otherwise interfere with the implementation of the County’s evacuation plans. The court found that the conclusion was supported by substantial evidence, including the EIR’s analysis of how long it would take to evacuate the project site, the number of emergency access/evacuation roads included in the project, the requirement that RPI develop a “shelter in place” feature, and the analysis of impacts to fire department response times.

The court acknowledged that evacuation planning involved multiple unknown factors and a host of potential circumstances which made it difficult to predict how an evacuation might play out or how a project could impact such an evacuation. The court reasoned that because the County had discretion as the lead agency to decide how to analyze an impact, the court would defer to the County’s methodology decision provided it was reasonable and supported by substantial evidence. The court found that it was. The court concluded that many of Sierra Watch’s challenges to the EIR’s analysis amounted to requests for further analysis, additional modeling, and speculative hypothetical scenarios. The court cited Guidelines sections 15145 and 15151 for the propositions that the EIR need not speculate and need not be exhaustive. While some of the evidence, relating to fire prevention and fire department response times, did not directly relate to emergency evacuation planning, the evidence indirectly supported the County’s conclusions by demonstrating that the project was reducing the likelihood of wildfire on the site and reducing the need for an evacuation.

Sierra Watch also argued that the EIR was internally inconsistent because the traffic analysis reached the opposite conclusion of the emergency evacuation analysis regarding project traffic on SR 267. The court found that the EIR’s conclusion that project generated traffic would have a significant impact on vehicle delay was not inconsistent with the conclusion that project generated traffic would not substantially interfere with emergency evacuation plans. The court reasoned that the two analyses focused on different types of impacts, with time (as measured by vehicle delay) being the focus of the traffic analysis and public safety being the focus of the emergency evacuation analysis.

Forest Resources

The court upheld the EIR’s conclusions that cumulative impacts to forest resources were less than significant. The EIR discussed the County’s 1994 General Plan EIR’s analysis of impacts to forest resources based on projected growth and development in the County and concluded that the Project’s impacts were consistent with and would not exceed the impacts disclosed in 1994 General Plan EIR. The Final EIR concluded that analyzing climate-related forest impacts, such as drought, wildfire, and tree mortality cause by bark beetles, would be speculative, and the court agreed. The court concluded that climate-driven tree mortality was not within the scope of a CEQA cumulative impacts analysis, which required the County to analyze impacts from the Project combined with past, present, and reasonably foreseeable future projects. Tree mortality is not a “project” under CEQA. The court acknowledged that climate-caused tree mortality could be exacerbated by a project, but such impacts would be best analyzed as part of the climate change and GHG analysis. The court concluded that aspect of the GHG analysis was not challenged in this case.

Traffic Mitigation

The EIR concluded that the Project’s traffic impacts on SR 267, measured in terms of delay and using the level of service (LOS) metric, would be significant and unavoidable. The EIR reached this conclusion in part because while the California Department of Transportation had plans to widen SR 267 from two to four lanes, the plan did not cover the portion of SR 267 within the Tahoe Basin, and it was uncertain when the widening would occur. Several commenters suggested that the EIR analyze transportation demand management (TDM) options to reduce traffic on SR 267. The EIR included similar measures for the Project’s impact on public transit but did not analyze whether TDM measures could further reduce the significant traffic impacts. The court, without acknowledging previous rulings by the Third District Court of Appeal finding LOS impacts to be moot given the Legislature’s directive that vehicle delay is not a significant environmental impact, ruled that the EIR failed to analyze facially feasible mitigation proposed in comments and therefore violated CEQA. The Court also found that, while the EIR did not analyze the impacts of widening SR 267, that lack of analysis was not prejudicial error because widening SR 267 was previously approved by the County in the MVCP, which concluded at the time that impacts of such a project would be analyzed in a separate EIR once the improvements were designed.

Energy Resources

Lastly, the court found fault in the EIR’s analysis of impacts to energy resources. The EIR concluded that the Project’s energy consumption impacts would be less than significant because the Project would not result in “wasteful, inefficient, or unnecessary use of energy, or wasteful use of energy resources.” The court, however, ruled that the EIR was required to analyze the Project’s potential use of renewable energy both in determining whether the Project may have a significant impact and how to mitigate that impact. Citing California Clean Energy Com. v. City of Woodland (2014) 225 Cal.App.4th 173, 209, the court concluded that the requirement to analyze renewable energy as part of a project’s impact analysis was a procedural requirement of CEQA, which the EIR failed to comply with.

– Nathan George

*RMM Attorneys Whit Manley, Chip Wilkins, and Nate George served as counsel to Real Parties in Interest in the above litigation.

California Supreme Court Upholds GHG Analysis in SANDAG’s Regional Transportation Plan EIR

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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, in Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 3 Cal. 5th 497.  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]

First District Court of Appeal Upholds EIR for Plan Bay Area that Correctly Excluded Statewide Emissions Reductions in Developing Strategies to Meet SB 375’s Emissions Targets

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In Bay Area Citizens v. Association of Bay Area Governments (2016) 248 Cal.App.4th 966, the First District Court of Appeal interpreted SB 375 as requiring the California Air Resources Board (Board) and regional agencies to set and meet the emissions reductions targets through regionally-developed land use and transportation strategies that are independent of existing statewide clean technology mandates. Therefore, the court of appeal upheld the Bay Area Metropolitan Transportation Commission and the Association of Bay Area Government’s (collectively, the Agencies) “Plan Bay Area” and its EIR, finding the opponent’s arguments failed because they were based on a misinterpretation of SB 375’s requirements.

SB 375 requires the Board to provide greenhouse gas emissions reduction targets to each region while taking into account statewide mandates such as the Low Carbon Fuel Standard and the New Vehicle Emissions Standards. Then, each regional metropolitan planning organization (MPO) must prepare a sustainable communities strategy to meet those targets. The Agencies prepared Plan Bay Area. The petitioners commented on the Plan’s EIR stating that the Agencies should have counted reductions expected from preexisting statewide mandates. When the Board’s staff conducted a technical review of the Plan, however, they stated that the Agencies had appropriately excluded greenhouse gas emissions reductions from other technology and fuel programs. The Board then issued an executive order with the staff’s technical report attached, accepting that Plan Bay Area, if implemented, would achieve the targets.

The petitioners alleged that the Agencies failed to comply with CEQA by incorrectly assuming that SB 375 compelled them to exclude compliance with statewide mandates when assessing strategies to meet emissions reductions targets. First, the court looked to the plain meaning and purpose of the statute and found that because the emissions reductions from the statewide mandates are projected to dwarf those achieved by SB 375, the whole statute would be superfluous if the MPOs were simply allowed to cite the expected reductions from preexisting initiatives. Further, the Board’s AB 32 Scoping Plan repeatedly emphasized that the regional land use and transportation strategies were distinct from the statewide mandates. Although the Board was required to take the statewide mandates into account when setting targets under SB 375, the statute did not require any specific approach and the board had discretion to instruct MPOs to exclude consideration of reductions expected from statewide mandates. The Board made this instruction clear when it approved of Plan Bay Area with the exclusion of reductions from statewide mandates.

On the alleged inadequacy of the Plan’s EIR, the court stated that the petitioner’s arguments were based on their misinterpretation of SB 375 and found the EIR adequate. The Agencies were not required to consider the appellants proposed alternative that relied on statewide mandates because, as discussed above, it did not comply with SB 375 and was therefore infeasible. Contrary to the appellants’ contentions, the EIR did not ignore statewide mandates. Consideration of the New Vehicle Emissions Standards and the Low Carbon Fuel standard were included when determining whether implementation of the Plan would result in a net increase in emissions and whether it would impede the goals of AB 32. Further, the court found that in light of the Agencies’ sufficient disclosures throughout the EIR, including when they did and did not consider statewide mandates, the appellant’s arguments amounted to an impermissible substantive attack on the plan.

Written by Sabrina S. Eshaghi

Fourth District Court of Appeal Holds Wal-Mart Project Inconsistent with General Plan Renewable Energy Requirements; CEQA Required City to Recirculate the EIR based on 350-Pages of New Analysis

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In Spring Valley Lake Association v. City of Victorville (2016) 248 Cal.App.4th 91, Division One of the Fourth District Court of Appeal reversed the San Bernardino County Superior Court’s decision in part, agreeing with the petitioner that revisions to impact analyses after the Draft EIR had been circulated for review constituted significant new information triggering recirculation, and that the Subdivision Map Act required the respondent city to adopt affirmative findings prior to approving a parcel map. The court also held that the project—a commercial retail development anchored by a Wal-Mart—was inconsistent with the city’s general plan.

Subdivision Map Act

The Court of Appeal held that the City of Victorville violated the Subdivision Map Act by failing, in approving the proposed parcel map associated with the project, to make the findings addressing the issues enumerated in Government Code section 66474, subdivisions (a) through (g). On its face, this section seems only to require that a local agency deny approval of a proposal parcel map if it makes any one of the specified findings. The section does not explicitly address what findings must be made in approving a proposed parcel map. The court held, however, that section 66474 does apply in the latter situation, and requires city and county legislative bodies, in approving parcel maps, to make affirmative findings on each matter addressed in subdivisions (a) through (g) of that section. In reaching this conclusion, the court relied on the following: (i) a related provision of the Subdivision Map Act (Government section 66473.5), which requires local legislative bodies, in approving parcel maps, to affirmatively find that such maps are consistent with the governing general plan and any applicable specific plan; (ii) a 1975 opinion from the Attorney General concluding that section 66474 requires affirmative findings for parcel map approvals as well as parcel map denials; and (iii) case law and secondary sources supporting the Attorney General’s broad interpretation of section 66474.

Consistency with General Plan

The Court of Appeal agreed with the trial court’s decision that the city’s finding that the project was consistent with the general plan’s requirement for on-site generation of electricity was not supported by substantial evidence. The general plan requires that all new commercial projects generate on-site electricity to the maximum extent feasible. As part of the project approvals, however, the city did not require the project to generate on-site electricity. In doing so, the city effectively found that generation of on-site electricity was infeasible. In support of this outcome, the EIR stated that there were many factors considered in determining whether the use of solar panels is cost effective, and described the project as being “solar ready.” But the EIR provided no discussion of those factors or how they applied to the project. Nor did the EIR discuss the feasibility of other alternatives such as wind power. The appellate court therefore held that the city’s finding that the project complied with the general plan requirement that commercial projects generate electricity on-site to the maximum extent feasible was not supported by substantial evidence. It is not clear why the court applied the substantial evidence standard to petitioner’s general plan consistency claims, rather than the traditional arbitrary and capricious standard.

Greenhouse Gas Emissions

The appellate court affirmed the trial court’s decision that the EIR failed to adequately address the project’s impact on greenhouse gas (GHG) emissions. In concluding the project would have no significant impacts on GHG emissions, the city relied on the project’s compliance with the general plan policy to exceed the Title 24 Building Energy Efficiency Standards for Residential and Nonresidential Buildings by 15 percent. The appellate court determined that this conclusion was not supported by the record. First, the court pointed out inconsistencies in the EIR. In one place, the EIR stated that the project would achieve a minimum of 14 percent increased efficiency over Title 24 Standards. In other places, including the technical reports, the EIR stated the project would only be a minimum of ten percent more efficient than Title 24 Standards. Second, in responding to comments, the city acknowledged that the EIR was “currently not in conformity” with the general plan policy that the project would comply with the new energy efficiency standards at the time of construction, and stated that “several of the project’s current energy efficient measures likely meet the 15 percent requirement.” The court found that, at most, the record showed that the project may comply, but not that it would comply with the general plan policy. Therefore, the city’s conclusion that the project would have no significant air quality impacts from GHG emissions was not supported by substantial evidence.

Recirculation under CEQA

Finally, the appellate court also held that the city’s revisions to analyses of certain impact topics constituted “significant new information” triggering recirculation of portions of the Draft EIR. First, the city added to the Final EIR information analyzing the project’s consistency with general plan air quality policies that had inadvertently been omitted from the Draft EIR. Noting that the public did not have a meaningful opportunity to comment on this information, the court found this information disclosed a substantial adverse effect, and therefore triggered the obligation to recirculate the draft EIR. Second, after the city circulated the draft EIR, the applicant substantially revised the project’s storm water management plan. Although no new impacts were identified, the final EIR included 350-pages of new water quality and hydrology analysis. The court held the new information triggered the duty to recirculate. As the court reasoned: “Given their breadth, complexity, and purpose, the revisions to the hydrology and water quality analysis deprived the public of a meaningful opportunity to comment on an ostensibly feasible way to mitigate a substantial adverse environmental effect.” Notably, the court reached these conclusions without attempting to relate its reasoning to the four examples within CEQA Guidelines section 15088.5, subdivision (a), of situations requiring recirculation.

 

First District Court of Appeal Rejects Challenge to California Air Resources Board’s Regulations Implementing the Cap-and-Trade Program

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The First District Court of Appeal has held the California Air Resources Board (CARB) did not exceed its authority under the California Global Warming Solutions Act of 2006 (2006 Act) in implementing the Compliance Offset Protocols and the early action offset provision of its Cap-and-Trade program. Our Children’s Earth Foundation v. California Air Resources Board, Case No. A138830 (Feb. 23, 2015).

Under the 2006 Act, CARB is required to adopt regulations specifying GHG emission limits and emission reduction measures in furtherance of achieving the statewide GHG emissions limit. The 2006 Act expressly authorizes CARB to adopt regulations establishing market-based compliance mechanisms to reduce GHG emissions. Every CARB regulation adopting GHG emission limits and measures must ensure that GHG emissions reductions are “real, permanent, quantifiable, verifiable, and enforceable” by CARB. (Health & Saf. Code, § 38562, subd. (d)(1).) Those regulations must also ensure that the emissions reduction “is in addition to any greenhouse gas emission reduction otherwise required by law or regulation, and any other greenhouse gas emission reduction that otherwise would occur.” (Health & Saf. Code, § 38562, subd. (d)(2), italics added.) This latter provision is known as the “additionality” requirement.

Pursuant to its authority under the 2006 Act, CARB implemented in January 2012 a Cap-and-Trade program regulation, a market-based compliance mechanism for achieving reductions in GHG emissions. The Cap-and-Trade program imposes a cap on the aggregate GHG emissions that covered entities may emit during the annual compliance period. Covered entities include industries who have previously reported exceedances of emissions above CARB’s threshold established for that industry. CARB enforces the cap by issuing a limited number of compliance instruments known as “allowances,” the total value of which is equal to the cap amount. Subject to limitations, participants can buy, bank, or sell allowances which are used by the covered entities to comply with their compliance obligations.

In March 2012, Appellant Our Children’s Earth Foundation (OCEF) (and another organization who is not a party on appeal) filed a petition for writ of mandate and complaint for declaratory and injunctive relief against CARB. OCEF claimed that CARB’s Compliance Offset Protocols and early offset credit provision violated the additionality requirement of the 2006 Act because they did not ensure the offsets would be truly additional to any GHG reductions that would otherwise occur.

The First District Court of Appeal affirmed the lower court’s denial of the petition. On appeal, OCEF first claimed that CARB exceeded its authority by adopting a market-based compliance mechanism that fails to ensure offset credits are additional to “any” GHG emissions reductions “that otherwise would occur.” The 2006 Act does not define “additional” or “otherwise would occur.” But the 2006 Act does define “market-based compliance mechanism” as including GHG emissions exchanges, banking, credits, and other transactions, governed by rules and protocols to be established by CARB. Within this authority delegated to CARB by the Legislature, the court concluded that CARB appropriately established rules and protocols that ensure additionality with respect to offset credits accepted under the Cap-and-Trade program.

The court also found it problematic that OCEF failed to articulate how a project operator could prove the GHG reduction would not otherwise occur or how CARB could provide the certainty that OCEF claims the 2006 Act demands. Whether a project would have been implemented without the offset incentive can never be proven with absolute certainty. The court found OCEF’s interpretation unworkable and, in practice, would preclude CARB from implementing market-based compliance mechanisms. That result is not what the Legislature intended, the court believed.

The court also rejected OCEF’s claim related to the early offset credit program. OCEF claimed that CARB exceeded its statutory authority by allowing offset credits for projects that were already occurring. According to the court, however, OCEF incorrectly assumed that a project that began before the Cap-and-Trade program was adopted could never satisfy the additionality requirement. That assumption was not supported by the provisions of the 2006 Act itself, which reflected the Legislature’s intention that there could be incentives for voluntary early reductions even before the Act was passed for which CARB could give credit.

Finally, the court considered OCEF’s challenge to the effectiveness of specific measures included in several of the Compliance Offset Protocols. As to this claim, the court made it clear that it would not substitute its judgment for that of the agency regarding CARB’s factual and policy considerations supporting the regulation. Pointing to the record, the court found that evidence substantially supported CARB’s policy decisions in formulating the protocols.