Archives: April 2010

Supreme Court Strictly Enforces CEQA’s Statutes Of Limitations In Two Recent Decisions

Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481.
Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4th 32.

In two recent decisions, the California Supreme Court has found actions brought pursuant to the California Environmental Quality Act (CEQA) barred by expiration of the applicable statute of limitations. Most recently, on April 1, 2010, the Supreme Court reversed a Court of Appeal decision in Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481 (Stockton Citizens), holding that, despite alleged flaws in the decision-making process, a facially valid and properly filed notice of exemption (NOE) triggered the 35-day statute of limitation period for filing a lawsuit to challenge the city’s determination that it had approved a project exempt from CEQA. Prior to the Stockton Citizens decision, on February 11, 2010, the Court also reversed a court of appeal decision in Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4th 32 (Committee for Green Foothills), holding that the filing of a notice of determination (NOD) triggers the 30-day statute of limitations for all CEQA challenges to the decision announced in the notice, regardless of the nature of the CEQA violation alleged.

In Stockton Citizens, the Supreme Court held that a petition filed nearly six months after the City of Stockton had filed an NOE for approval of a Wal-Mart retail center that was consistent with a previously approved master development plan was untimely. The Court held that the posting of the NOE triggered the 35-day statute of limitations period under Public Resources Code section 21167, subdivision (d), regardless of whether the exemption determination was properly made.

The petitioners argued that the filing of an NOE could only have force or effect to trigger the 35-day limitations period if the underlying project approval were valid. The Court found that the petitioners’ argument ran contrary to the principle that limitations periods apply regardless of the merits of the claims asserted. Section 21167, subdivision (d), clearly requires suits claiming that an agency has “improperly determined” a project to be exempt from CEQA to be brought within 35 days after the filing of an NOE that complies with CEQA requirements. The Court also looked to the legislative intent of the statutory limitations periods and found that the approach argued for by the petitioners would circumvent CEQA’s unusually shortened statute of limitations for challenges where the agency has given public notice.

The Court also rejected petitioners’ argument that the NOE itself was defective, concluding that it demonstrated minimal compliance with CEQA in that it described the project in question, including its location, set forth the action taken, and detailed the reasons for the exemption finding. The NOE thus alerted the public that the statute of limitations for bringing a CEQA challenge to the noticed action had begun to run. Because petitioners had not filed their challenge within the 35-day limitations period, their claims were time-barred.

In Committee for Green Foothills, the Supreme Court held that a challenge to Santa Clara County’s approval of a trail alignment for a countywide trail master plan was untimely. The petitioners alleged the county had failed to determine whether review was required, and therefore argued that the 180-day statute of limitations under section 21167, subdivision (d) should apply. The county had, however, filed an NOD.

Noting that Section 21167 does not specifically define the limitations period that applies to such a scenario, the Court found that the determinative question in identifying the appropriate statute of limitations was not the type of violation alleged, but whether the action complained of was disclosed in a public notice. According to the Court, when an agency gives the public notice of its decision under CEQA, the public can be expected to act promptly in challenging this decision. In contrast, when an agency does not give the statutorily required notice and the public is held to constructive notice based on the start of the project, a longer limitations period applies. Regardless of the type of violation alleged by petitioners, they had notice of the county’s action when the NOD was filed, and the Court concluded the petitioners thereafter had 30 days to file suit challenging that action.

The court also rejected the petitioners’ contention that the NOD was defective, and thus did not trigger a 30-day limitations period. The record supported the trial court’s finding that both the initial and the revised NODs were, at a minimum, in substantial compliance with CEQA guidelines.

In both of these cases, the posting of a CEQA notice, whether in the form of an NOD or NOE, was a crucial factor in determining the period during which CEQA challenges could be brought. In both cases, the Court found that the language of section 21167 strongly suggested that the Legislature intended the filing of an NOD or NOE to trigger a 30-day or 35-day, respectively, statute of limitations. Of particular concern to the Court seems to be the unusually short limitations periods set forth in CEQA, which are meant to ensure finality and predictability in land use planning decisions.

First District Strikes Down Refinery’s EIR For Failure To Describe The Project Consistently And Impermissibly Deferring Greenhouse Gas Mitigation

Communities for a Better Environment et al. v. City of Richmond (2010) 184 Cal.App.4th 70.

Communities for a Better Environment et al. v. City of Richmond involves an EIR prepared for a proposal by Chevron to replace and upgrade certain facilities at its oil refinery in western Contra Costa County, to process a more varied mix of crude oil types from a wider variety of sources than are currently processed at the site.

The court found the EIR’s discussion of the types of crude oil that the refinery currently processes, as compared to the types of crude that refinery would be able to process as a result of the project, was so “unclear and inconsistent” that the EIR failed to provide an “accurate, stable, and finite project description.” In particular, the record was unclear as to whether the project would allow the refinery to process heavier crude oil than is currently processed at the site. For instance, the EIR claimed that the project is designed to allow greater flexibility in refining future crude oil supplies that the EIR described as “increasingly heavier”; but the EIR also denied that the project would enable the refinery to process heavier crude. Although one expert testified the project would not enable the refinery to process heavier crude, that expert’s opinion was based on confidential data provided by Chevron, and therefore the expert’s opinion did not meet CEQA’s “informational” goals. Because it was unclear whether the project would increase the refineries ability to process heavier, less clean, crude oil, the court found the EIR’s project description violated CEQA.

The court next considered the EIR’s strategy for reducing the project’s greenhouse gas emissions. The final EIR for the project concluded that the project’s impact to global climate change was too “speculative” for a significance determination. In the face of public opposition to this conclusion, following release of the final EIR, the city issued findings in a new EIR volume that concluded the project would have a significant impact on climate change. The new EIR volume proposed a mitigation measure requiring Chevron to submit to the city council a greenhouse gas reduction plan within one year after project approval that would ensure that the project’s operations would not result in a net increase in greenhouse gas emissions over the baseline. The mitigation measure also included a non-exclusive list of possible measures that Chevron should consider in developing the greenhouse gas emission reduction plan. The court concluded that this mitigation measure impermissibly deferred mitigation by allowing Chevron to formulate mitigation a year later, outside the EIR process, and giving the city council final approval over the mitigation plan without further public review. In so holding, the court distinguished several cases upholding deferred mitigation where circumstances prevented the formulation of aspects of the mitigation measures at the time of environmental review and the measures contained specific performance standards guaranteeing their effectiveness. Unlike those cases, here, there was no evidence that the measures identified in the mitigation measure could feasibly meet the stated “no net increase” standard. Nor did the mitigation measure provide any objective criteria for the city council to apply in measuring their success.

Lastly, the court held the city had not unlawfully segment environmental review. The court determined that because the refinery project did not “depend on” construction of a hydrogen pipeline that would be owned and operated by a third-party industrial gas company, Praxair, the city’s treatment of the hydrogen pipeline as a separate project did not constitute illegal piecemealing.

Communities for a Better Environment v. City of Richmond is the first published court of appeal decision addressing the adequacy of proposed measures to mitigate a project’s greenhouse gas emissions. The case suggests agencies should not rely on a generalized goal of “no net increase” in greenhouse gas emissions in the absence of quantified evidence that such a goal could feasibly be achieved. Any mitigation measures recommended to achieve a no-net increase in greenhouse gas emissions should be well-defined and based on objective success criteria. This case also underscores the importance of maintaining a consistent project description throughout the record of proceedings in order to provide the public and decisionmakers with meaningful information about the actual consequences of a proposed project. Lastly, the case also emphasizes that related projects with independent utility need not be analyzed as a single project under CEQA. This holding is consistent with the recent Second District Court of Appeal decision in Planning and Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210.